Administrative Hearing Decisions

Lynda McAllister, Appellant

MONTGOMERY County Ohio

Initial Hearing Date 04/11/2000

Appellant/Representative
LYNDA MCALLISTER

Hearing Date 04/11/2000

Appeal Numbers/Program(s) 9940225/IVE

NOTE:The child who is the subject of this hearing is referred to througout as "our child" in order to protect the child's identity

ISSUE:

The appellant and her husband were notified by agency letter, dated 3-20-2000, that her request for an increase in the Adoption Assistance [IV-E] payment was denied as she and her husband were receiving the maximum amount per month. A hearing regarding the request for an increase in the Adoption Assistance payment was requested on 3-22-2000. The issue is whether the agency was correct to deny an increase in the current Adoption Assistance payment. The hearing officer finds that the agency did not follow prescribed negotiation procedures with the appellant and that negotiation of an agreed upon amount of the Adoption Assistance payment must be completed.

Appeal(s) SUSTAINED 9940225

Date Issued 04/18/2000

Compliance 9940225

PROCEDURAL MATTERS:

The appellant and her husband were denied an increase in the Adoption Assistance payment for their [child] by letter, dated 3-20-2000. The appellant requested the hearing regarding the denial of the increase in the IV-E payment on 3-24-2000. The hearing was held on 4-11-2000. No appeal summary was received for the hearing.

SUMMARY OF PROCEEDINGS:

Agency Testimony:

The Children's Services Board Representative [CSB] indicated that he can only approve an Adoption Assistance payment up to $379 per month. He said that a payment higher than that must be approved by the Manager of Health Services. He said the medical material on the appellant's [child] was passed on to the Manager and her committee. The committee determined that the maximum the appellant could receive was the current payment of $700.70. He presented the following memorandum from the Coordinator of Children's Benefits, dated 4-11-2000:

The Adoption Assistance rate-setting process consists of the agency nurse as well as other agency administrators as needed reviewing all medical evidence supplied by the adoptive family. The intent of tour child's process is to provide equal funding based upon each child's special needs.

[The appellant's child's] Adoption Assistance rate is currently $700.70 per month. When [the appellant's child] was adopted in 1993, our child's rate was $474 per month.

The agency may add additional dollars to the original AA rate when funds are available and when the child has special needs beyond those which were presented at the time the AA case was opened. Montgomery County Children's Services has increased the monthly award by $226.70 since the inception of tour child's case 6 '/2 years ago.

Increasing AA awards obligate the county for a portion of the increase. The county is currently responsible for 41.33% of the total AA less the first $250. In tour child's specific case, MCCS pays the county share of $186.27 per month.

The agency nurse and the Director of Child-Centered Services reviewed the material which was submitted by [the appellant]. [The appellant] has placed [the child] in a residential center in Montana. MCCS does not increase AA to cover the costs of residential services. The current rate of $700.70 per month is consistent with other AA children with similar needs.

The CSB Representative said that he did not know how the committee arrived at the $700.70 monthly AA payment.

Appellant Testimony:

The appellant handed the hearing officer a notebook of exhibits. At the beginning of each exhibit, there was a written statement. The appellant read each of the statements, which included the following:

I requested a state hearing because my request for modification of the AA for my son, [name], was denied, Rule 5101:6-3-01 Grounds for requesting a state hearing: A. (A)(3) A request for an adjustment in benefits has been denied, acted upon erroneously, or not acted upon with reasonable promptness.

Rule 5101:2-47-42, part D, states if the adoptive parent and the PCSA cannot agree on an amount, a hearing can be requested.

According to rule 5101:2-47-36(6) The adoptive parents may (b) seek to modify/amend the child's AA agreement. (C)(12) If the PCSA denies a request by the adoptive parent to modify/amend the terms of an existing AA agreement. Rule 5101:2-47-38 addresses the same issue regarding adoptive parents' request to modification of the AA and the right to a hearing if denied.

Date of request

In mid-January I made a written request to Montgomery County Children Services for an increase in the IV-E adoption assistance I receive for my [child]. They then sent me an ODHS 1453, "Adoption Assistance Application". I completed the form and wrote a letter identifying [my son's] ongoing special needs, provided an overview of services he has received, mentioned some of our cost and reminded them of supporting documentation the agency had in their possession due to previous PASSS applications and funds received from the agency. I also included the name of two CSB staff persons that had ongoing experience and knowledge of [my son] and the family if they needed further information. Tour child's was mailed on January 20, 2000.

By mid-February I became concerned because I had not heard anything. Typically, I had always experienced a quick response from the agency when requesting services in the past and became concerned that possibly my request had been misplaced.

I called [CSB Representative] and was informed that they had received my request, and it had been sent to the nurse for review. I shared that if they had any questions or needed more information, I would provide it and would be willing to have a meeting if that would help. I was told by [CSB Representative] that the nurse "did not do meetings."

I called again a few days later and expressed my concern that it was now fortyfive days since my request. I shared that I did not want to have a state hearing based on the delay. He originally said that the nurse was still reviewing the information but was off ill; in a later conversation he said she was on vacation. He sounded like he took offense to my comment about a state hearing and mentioned that the nurse would not take well to a threat. I shared that it was in no ways a threat but a right I had under state rules.

On March 9, 2000, in an attempt to settle the matter, I called the FAIR office and explained the situation. Tour child's was a Thursday. They called me back on Friday and said that they had spoken to the nurse's supervisor and she would take care of the matter.

A week later, I still had not received a reply. I called the FAIR office on March 20, 2000 in the morning and left a message. On March 21, 2000, I received a reply. I offer exhibit (A) [notebook], which is my request letter.

Rule regarding denial

Rule 5101:6-2-03 Notice of denial of an application for benefits:

A. When the agency denies an application for a requested change in public assistance or social services, the assistance group shall be provided prompt written notice of the decision. (1) The notice shall contain a clear and understandable statement of the action the agency has taken and the reasons for it, cite the applicable regulations, explain the individual's right to and the method of obtaining a county conference and a state hearing and contain a telephone number to call about free legal services. I submit Exhibit B [Notebook].

Exhibit B (Denial Letter)

The denial letter I received did not give the regulations that explained the reason for the action but instead stated that [our child] was receiving the maximum amount. I have no idea what tour child's is based on and believe it to be incorrect. I will be presenting supporting rules and evidence for tour child's statement. The letter also failed to explain how to obtain a county conference or a state hearing. There was not a phone number listed to call about free legal services.

Rule regarding amount

Rule 5101:2-47-42 Adoption assistance payment rate: determination of the payment amount.

A. The amount of the adoption assistance payment is determined by negotiation and mutual agreement between the adoptive parents and the public children services agency in accordance with rules 5101:2-47 36 and 5101:2-47-42 of the Administrative Code and must be based on the needs of the child, the circumstances of the adoptive family and the PCSA's adoption policy. A consideration of the child's needs and the adoptive family's circumstances refers not only to such factors as the overall capacity of the adoptive parents to meet the child's immediate and future needs (including educational needs), but to the ability to incorporate the child into the household in relation to the lifestyle, standard of living and future plans of the adoptive parents.

B. States income eligibility test is not used.

C. States the AA payment may be modified to reflect the needs of the child and circumstances of the adoptive family in accordance with rule 5101:2-47-38.

D. If the adoptive parents and the PCSA cannot agree on the amount of AA, the adoptive parents have the right to request a state hearing.

Rule 5101:2-47-43 Adoption assistance payment rate: Payment rate for adoption assistance.

A. The payment rate for adoption assistance is determined on an individual basis for each eligible child.

D. The maximum amount of AA payment which is eligible for FFP shall not exceed the cost of the foster care maintenance (FCM) payment which would have been paid if the child for whom the AA payment is made had been in a family foster home, including a family foster home receiving difficulty of care payments for a child with special, exceptional or intensive needs as described in rule 5101:2-47-18.

E. (1) To determine the amount of the FCM payment would have been if the child had been in a family foster home, the PCSA shall: Determine the appropriate FCM rate in effect for the PCSA completing the ODHS 1453 at the time the most current agreement or modification/amendment to an existing agreement is signed.

Rule 5101:2-47-18 Foster care maintenance program reimbursability: Payments related to the difficulty of care needs of a child placed in a family foster home relative home, or per finalized adoptive home.

F. A child eligible for an intensive needs difficulty of care payment is a child: 1. Who has multiple and severe psychiatric, emotional and behavioral problems ranging from personality disorders, severe mental retardation, or autism to aggression toward animals, others and self, sexually acting out, suicidal behaviors or ideation.

Rule 5101:2-47-43 states that the AA payment cannot exceed the rate of FCM, and my son clearly would be identified as an "intensive needs" child under rule 5101:2-47-18 if he were in foster care. I submit exhibit C [notebook] as documentation as to what those rates are and how much more they are than the AA amount of $700 per month we receive for our son.

Supporting documentation of special needs and intensive care rates:

Exhibit D [notebook] is the social our child'story of [our child's sibling]. I have misplaced [our child's] but much of the [the sibling's] placement our child'story information is the same. In [our child's] social our child'story it mentions [the child} as being diagnosed as a failure to thrive baby at age six months. CSB should have a copy of tour child's in their files.

Tour child's report clearly states the agency's years of involvement with the family, my [child's] removal from [the birth parents'] home, and foster care placements that disrupted due to [the child's] behavior. Tour child's was all prior to our child's being eight years old and early into [our child's] eighth year. What it does not include is information we learned later during [our child's] numerous ongoing counseling experiences. We were not aware that he had been sexually abused. Tour child's has come out reluctantly in counseling and includes an adult that we suspect was the father of one of [our child's] mother's boyfriends, who is the father of [our child's] youngest [sibling]. We were told by family members that tour child's man that [our child] considered a grandfather was sent to prison for sexually abusing a young cousin. While in St. Joseph's, [our child] shared with our child's therapist, [name], that he witnessed tour child's. She expressed concerns that [our child] may have been a victim. [our child] shared while in Osterlen that he had also been sexually abused by an older cousin and an older foster brother in our child's last foster home placement.

[our child] also shared with us and different therapists about seeing an adult male that he identified as our child's [sibling's] father placed the family puppies alive in a microwave and cooked them.

[Our child] and [sibling] have shared how [our child] taught the sibling to hide when our child's mother's boyfriends were beating her or run when they tried to beat them.

They have shared how they used to have to bum money or steal to buy food on many occasions when they were hungry because there was nothing to eat. Tour child's was prior to age seven.

[our child'] mother had a son, [name] . . . after the birth of [our child], and she gave tour child's child to a neighbor when he was about six months old to keep permanently.

Needless to say tour child's additional information along with what is in [our child's] social our child'story has created numerous emotional and psychological issues for [the the child].

Exhibit E-Educational Needs [Notebook Exhibit]

[our child] has always had educational needs beyond just the difficulty that children who are diagnosed with ADHD have. [our child] has always been on an Individualized education plan. [our child] has low intelligence in addition to many learning disabilities. We have always sought and purchased additional services to address these needs. Tour child's has included placing [our child] in a private school where classes were smaller, and he received more individual attention. [our child] is presently being home-schooled at the program [in which the child is enrolled] and again tour child's allows for much more individual attention.

Exhibit F-Hospital Admissions [Notebook Exhibit]

[our child] has had numerous hospital admissions at Franciscan when [our child] becomes suicidal, aggressive and out of control. With [our child's] bi-polar condition, tour child's will unfortunately continue from time to time in order to stabilize both [our child's] manic and depressed mood swings and for medication adjustments.

Exhibit F-Therapists and Psychiatrists he has seen [Notebook Exhibit]

[our child] has maintained regular counseling participation since he has entered our home. [our child] was in the psychiatric unit at Dettmer when we began our pre-placement visits. However, we only knew that [our child] was there because of [the child's] temper and only learned once [the child] was discharged and in our home that [the child] had also been sexually acting out. (Tour child's was in the hospital discharge summary). Following the release from Dettmer, [our child] continued to see Marilyn Shea, who had been [our child's] therapist while in foster care. When [our child] started St. Joseph's day treatment program, Ann became [our child's] therapist, and [our child] saw the psychiatrist there. They worked with [our child] from the second grade (time of [our child's] placement) until the sixth grade when [our child] was released from that program. [our child] then saw

Becky Smith at their outpatient program. After completing outpatient, [our child] went back to Marilyn Shea. When [our child's]sexual acting out and offending began, [our child] also saw Larry Postell. After [our child's] release from St. Joseph's, [our child] began to see Dr. Mahajan (psychiatrist) and continues to see him. There was a brief period that [our child] saw a counselor at Dr. Mahajan's office. After [our child's] release from Osterlen, [our child] began seeing Jeff Morgan. My husband and I began seeing Jeff as did our other children while [our child] was in Osterlen. We continue to see him.

Exhibit I-Present program and monthly cost [Notebook Exhibit]

In January of 2000, after another hospital stay, we located a program in Montana for [our child]. [our child] remains there at tour child's time. PASSS funds had been exhausted. Tour child's program was willing to take [our child], and their program is 1218 months. My hope was that between [our child's] AA subsidy and the family's resources tour child's would be affordable. Tour child's was when I decided to request an increase for [our child's] monthly AA based on our child's continued needs. The program is $2500 per month and cheaper than any local program we have used or could find. They offered us a $1000 per month financial assistance. So we pay $1500 per month. However there are other expenses. We wanted to continue [our child's] Ohio Medicaid so that our child's doctors here that know [our child] so well could continue to work with [our child]. Each month we send additional monies. Tour child's includes $100 for medical needs that the program puts aside in case [our child] gets ill, $50 for incidental expenses, $10 phone card and additional monies for special activities that [our child] earns with [the child's] behavior goals being achieved at the program. In additional to tour child's, we have to pay the home school cost, mailing of [our child's] monthly prescriptions, clothing cost, personal items, long distance phone calls when we call [our child] or the program and transportation costs to send [our child] to the program and escort [the child], transportation cost for us to visit [our child], along with car rental, motel cost, food cost and entertainment while visiting and [our child's] transportation cost to visit at home. Tour child's is necessary to maintain [our child's] our child's placement there and has not been scheduled for every two months.

SUMMARY

I believe that our family's request for an increase in adoption subsidy from $700 per month to $1200 per month is fair and reasonable. The documentation we have supplied shows without a doubt that our [child's] issues are chronic and require continued services, dedication, and commitment on our part. We are financially unable to meet [our child's] needs without tour child's increase.

The agency stated in their denial that it was based on our getting the maximum rate but did not site any legal justification or rule supporting tour child's denial. I believe that the rules clearly state otherwise.

Rule 5101:2-47-43(A) states the payment rate for adoption assistance is determined on an individual basis for each eligible child.

Part (D) states, The maximum amount of AA payment which is eligible for FFP (federal financial participation) shall not exceed the cost of the foster care maintenance (FCM) payment which would have been paid if the child for whom the AA payment is made had been in a family foster home, including a family foster home receiving difficulty of care payments for a child with special, exceptional or intensive needs as described in rule 5101:2-47-18 of the Administrative Code.

Rule 5101:2-47-18(A) states, A child with special, exceptional, or intensive needs receiving foster care maintenance payments may be eligible for a supplemental difficulty of care payment. Tour child's payment shall be available for a child who has been determined by the Title IV-E agency to have a difficulty of care needs that require special parenting attention and care. And (G1) says, A child eligible for an intensive needs difficulty of care payment is a child: Who has multiple and severe psychiatric, emotional and behavioral management problems ranging from personality disorders, severe mental retardation, or autism to aggression toward animals, others and self, sexual acting out, suicidal behaviors and ideation. Our documentation clearly supports almost all of these issues.

Exhibit C [Notebook Exhibit] shows ODHS approved title IV-E foster care maintenance rates for residential facilities, group homes and purchased family foster care providers. When reviewing these rates, it is obvious that the level of care and services my son needs if being provided under these services would cost far more than we have requested. Also included an Audit report and FCM paid by agency.

Exhibits D, E, and F support our claim of our child's many issues. Exhibit G supports the expenses we incur monthly for our son.

Our request amounts to an increase of $16.90 per day.

FINDINGS OF FACT:

Undisputed Facts:

The following facts were determined by the hearing officer from the above testimony and documentation:

1. The appellant is receiving $700.70 per month for her son in Adoption Assistance.

2. In January she requested an increase in Adoption Assistance. The request is for $1200 per month.

3. The appellant was sent notice on 3-20-00, denying the request for an increase in Adoption Assistance. The letter indicated that the appellant is currently receiving the maximum amount per month. The letter gave no explanation for the determination and did not offer hearing rights to the appellant.

4. The appellant submitted extensive documentation to support the request for Adoption Assistance of $1200 per month.

POLICY:

The Ohio Administrative Code specifies the following:

Section 5101:2-47-03(B)(3)

. . .The amount of the monthly AA payment shall be determined by a written agreement negotiated between the adoptive parent(s) and the PCSA based on the child's needs and the family's circumstances as provided in rule 5101:2-47-42 of the Administrative Code. The terms of the agreement shall be specified on the ODHS 1453.

Section 5101:2-47-38(D)

If the adoptive parent(s) requests a modification of the AA specified in an existing agreement and the PCSA denies the request, the agency must provide the adoptive parent(s) with written notice of the denial and of the right to a state hearing in accordance with Chapter 5101:6-2 of the Administrative Code.

Section 5101:2-47-43(C)

The actual amount of AA payment for each child must be determined by mutual agreement between the PCSA and the adoptive parent(s). In determining the amount of payment, the PCSA shall consider the circumstances of the adoptive parent(s) and the needs of the child.

Section 5101:2-47-43(D)

The maximum amount of AA payment which is eligible for FFP shall not exceed the cost of the foster care maintenance (FCM) payment which would have been paid if the child for whom the AA payment is made had been in a family foster home, including a family foster home receiving difficulty of care payments for a child with special, exceptional or intensive needs as described in rule 5101:2-47-18 of the Administrative Code. The PCSA may agree to provide additional funds which are not eligible for FFP under the AA program.

ANALYSIS:

Based on the above OAC Manual sections, testimony, and facts as determined by the hearing officer, the following conclusions were reached:

1. OAC Section 5101:2-47-03(B)(3) states that the AA agreement shall be negotiated between the PCSA and the adoptive parents. Section 5101:2-47 43(C) specifies that the amount of the payment shall be based on a mutual agreement between the PCSA and the adoptive parents. It appears to the hearing officer that in tour child's particular case there has been no attempted negotiation with the adoptive parents by the PCSA. The only thing that has occurred is that a request was made for an increase in the AA payment, and the PCSA denied it.

2. It is also noted that the denial notice provided to the adoptive parents by the PCSA was deficient. There was no information regarding the right to a hearing, and the explanation on the letter gave no specific detail as to why the increase was denied other than the statement that the appellant was already receiving the maximum amount.

3. Thus the PCSA shall meet with the adoptive parents and negotiate a mutually agreed to AA amount for the appellant's son.

HEARING OFFICER'S RECOMMENDATIONS:

The appeal should be SUSTAINED. The PCSA shall comply with the action specified in Conclusions (3).

FINAL ADMINISTRATIVE DECISION AND ORDER:

Finding the hearing officer's decision to be supported by the evidence, the recommendations shown above are adopted, and Appeal Number 9940225 is SUSTAINED. The agency is required to comply with each of the terms set forth in the hearing officer's recommendation above. Ohio Administrative Code, Rule 5101:6-7-03 requires compliance with tour child's decision within 15 calendar days from the date it is issued, but in no event later than 90 calendar days from the date of the hearing request.