What Are Fair Hearings?
An administrative fair hearing (or an adoption assistance appeal) is a process for settling differences between adoption assistance applicants or recipients and the public agency which administers the program. Parents who think that a particular decision is unfair are entitled to request a fair hearing to resolve the dispute. The public agency’s responsibility for fair hearings is outlined in 45 CFR Ch. 11 §205.10 (10-1-93 Ed.), which is available from NACAC. Also, request a copy of the state’s policy outlining your rights at a hearing.
Policy Announcement (PA) 01-01, issued January 23, 2001, outlines six allegations that constitute grounds for a fair hearing (previously known as extenuating circumstances):
- Relevant facts regarding child were known by State agency or child-placing agency and not presented to the adoptive parents prior to finalization of the adoption
- Denial of assistance based upon a means test
- Adoptive family disagrees with the determination by the State that a child is ineligible for adoption assistance
- Failure by the State agency to advise potential parents about the availability of adoption assistance for children in the State foster care system
- Decrease in the amount of adoption assistance without the concurrence of the adoptive parents
- Denial of a request for a change in payment level due to a change in the adoptive parents circumstances
How Do I Request a Fair Hearing?
After receiving an adverse decision, write a letter to the agency requesting a fair hearing. The written decision from the agency should explain the right of appeal and list the name and address of the person to contact. It should also set an appeal period–frequently thirty days–within which the appeal must be requested. All states differ on the time allowed parents to request a hearing after a denial of services or benefits; they range from 15 to 90 days). Always date and sign the appeal letter, and simply state “I/we request an administrative fair hearing.” Be sure to request a copy of your state’s fair hearing procedures.
Remember to make a copy of the letter for your files, and mail it promptly–certified, if possible, so you create a “paper trail.” Upon receiving the letter, the burden of responsibility to set up the hearing is placed on the agency. The agency must send you a summary of the issues that explains why the decision was made, and cite the law(s) governing the decision. The agency then schedules a hearing date.
Ways to Avoid a Hearing
If possible, do everything possible to avoid going to hearing. For State agencies, the average cost to hold an appeal hearing is $5,000, so there is a financial incentive to settle the dispute, if possible, without going to hearing. Consider the following:
If you dispute is at the local or county level, ask for an administrative review by the regional or state office. This allows a state administrator to take a fresh look at the issue(s) and offer a second opinion.
If you already have a date scheduled, request a pre-hearing conference with the hearing officer and agency representative (often, the lead social worker or state subsidy supervisor and legal counsel for the agency). This allows the hearing officer and all parties to make clear what issues will be discussed at the hearing, and allows everyone to discuss/view all relevant evidence. If the lines of communication have broken down between the family and agency, this may be the only time prior to the hearing to present any new medical documents, for example. In some cases, agency workers request time to review the new documents and ultimately to side with the adoptive family.
If you cannot reach a settlement with the agency, then you’re headed to an administrative appeal.
Common Mistakes to Avoid
- People often rely on verbal information offered by the department receptionist or others about matters such as eligibility. This information may be incorrect, so always ask for the decision in writing – only then can you initiate a fair hearing.
- Talk to an adoption supervisor at your agency before making a formal appeal. Many misunderstandings can be negotiated to an acceptable solution.
- Pay close attention to appeal deadlines. If you are late, you lose out.
- When adopting a special needs child, the agency must tell the prospective parents about the child’s problems and explain the possibility of receiving adoption assistance. If you were not informed, you may be able to apply for benefits retroactively.
Preparing for a Hearing
Thorough preparation is a must if you want a positive outcome. Documentation to prove a child’s disability can come from licensed professionals (i.e., physicians, teachers and therapists), but can also include information from personal experience. Daily behavior logs or journals are persuasive in administrative hearings. Also, if you speak to a social worker who says “a, b, c” always send a follow-up letter (signed and dated) stating what you heard. This helps to make certain your information is correct and creates a paper trail you can use at the hearing. If the worker says “a, b, c” but you heard “x, y, z,” the letter will help to resolve the matter before it escalates.
Read the case file. Check to see if it includes copies of notices to you (such as about the availability of assistance), or if it documents the child’s potential for disability. Does it accurately reports contacts and conversations between you and the worker?
Make an outline to follow at the hearing. Clearly state the issue, list the statute or federal policy statements or PIQs (Policy Interpretation Questions) that supports your position (you can get these from NACAC or on-line), the facts you hope to prove, and the evidence that supports the facts. As you present your case, check off each point to ensure you have offered each document, legal citation, and argument.
Some parents seek legal advice before going into a hearing or hire an attorney to go the hearing. Others ask spouses, friends, or colleague to attend the hearing to provide support. Although a fair hearing is an administrative process, not a court proceeding, the process is often new and a bit intimidating. Feel free to bring anyone with you.
What Happens at the Hearing?
In NACAC’s experience, hearings are either very informal–like a business meeting around a large table–or feel quite a bit like a court of law. Some hearings are held over the phone. In these cases the hearing will be audio-taped. The hearing is run by an impartial hearing officer or administrative law judge. Rules of evidence do not apply so most any information can be presented. The agency’s representative will be seated along one side of the table, opposite the parents and their representatives and witnesses. The hearing officer sits at the head of the table. He or she begins by explaining the process and then asks questions. Each party can make statements and question the other side. At the end of the hearing the case is taken under advisement and a written decision issued later, usually within two to three months.
If you realize at the hearing you have forgotten to bring essential information, you can ask the judge to keep the record open for a few days to allow time to summit additional information. Finally, if the hearing decision is not in your favor, your state may have an option for another hearing, or if not available, you can appeal the case to court.
Strategies for Success
- Request an administrative review
- Request an administrative hearing
- Request a pre-hearing meeting
- Document EVERYTHING
- Obtain official diagnosis from medical professionals–i.e., folks with lots of letters after their names
- Send documents certified mail
- Bring someone with you to the hearing
- Find an advocate or talk with parents who have been through an appeal in your state
- Create your position statement–tell your story; create a timeline of important dates
- Create your hearing binder–use tabs A, B, C…–and provide copies to all parties at least 10 days prior to the hearing. Obtain the agency’s position statement.
- Find cases that can serve as precedents in your state
- Use the Internet
- Write out opening and closing statements
- Bullet point your argument
- Support your case using state and federal policy statements
- Pay attention to deadlines
- Bring pictures of your kids
- Request a telephone hearing if needed
- Ask to leave the record open for 10 days if you forget something at the hearing
- Get a good night’s sleep before the hearing and try to eat something prior to the hearing
- Bring something to drink or snack on in case the hearing goes longer than expected
- Don’t be afraid to ask someone to explain a term or repeat a question
- Stay calm but don’t hesitate to describe your reactions and feelings about the case and about how it has affected your child and your family
The Hearing Decision
The hearing decision is written after the hearing and will mailed to you one to three months after the record is closed. The decision may be partly or completely in your favor or may go against you. If you do not get the result you want, give yourself a few days to absorb the bad news. Then contact your advocate and begin work on your appeal, if you choose. Generally, an appeal is a good idea because:
- There is very little work involved–simply writing a rebuttal to the decision and attaching any new evidence or legal research you may have gathered since the hearing
- Many people win on appeal. Generally, the higher up the legal ladder you go, the more carefully the federal law will be scrutinized
- Appeals normally leave the purview of the human services legal department giving a more comprehensive legal eye a chance to review the facts
- Since attorneys are usually optional in this phase, there is nothing to lose by appealing, except time
- Your win in an appeal has the potential to help other parents with a similar problem if you share the decision with NACAC.
Remember, there is a limited amount of time after which you cannot appeal a decision so be clear about your rights and the rules. If you lose on appeal or the State appeals your win, the next step is usually a district court lawsuit. Contact NACAC for information about finding an attorney who is experienced in this type of law.
The Psychology of Advocacy
For many people, advocating in a fair hearing is their first experience of going up against the “system.” For some, insisting on fairness in a matter of financial assistance is an uncomfortable experience. They may worry that the State or the hearing officer sees them as greedy or demanding, when in fact they are only trying to help their children.
You may have to remind yourself and the other parties involved that you are your child’s advocate and that adoption assistance is an entitlement program and the subsidy is the child’s legal entitlement. You are there for and in your child’s best interests. Children cannot advocate for themselves within a bureaucracy. It is up to their parents to do this on their behalf.
For more information, please contact NACAC’s Adoption Subsidy Resource Center at 800-470-6665, 651-644-3036, or e-mail at firstname.lastname@example.org. The Center was created to help educate parents and professionals across the United States on subsidy issues.
NACAC appreciates the assistance of Dr. Rita Laws for collaborating on this fact sheet.