Adoption assistance agreements should be negotiated and signed prior to the finalization of an adoption. In some cases, parents can go back to the state agency after finalization to obtain assistance, but these requests must go through a state appeal process as a matter of protocol. States must first deny a post-finalization request for adoption assistance due to the federal requirements.
A parent’s right to appeal an adverse decision regarding adoption subsidy eligibility or benefits has been upheld in federal policy since at least 1988. While the Department of Health and Human Services’ Children’s Bureau withdrew two former policy statements regarding hearings—specifically PIQ 88-06 and PIQ 92-02—these were replaced with language in the Child Welfare Policy Manual (September 2001).
The language is as follows: Federal regulations at 45 CFR 1356.40(b)(1) require that the adoption assistance agreement be signed and in effect at the time of, or prior to, the final decree of adoption. However, if the adoptive parents feel they wrongly have been denied benefits on behalf of an adoptive child, they have the right to a fair hearing (i.e., an appeal).
Some allegations that constitute grounds for a fair hearing include:
- relevant facts regarding the child were known by the State agency or child-placing agency and not presented to the adoptive parents prior to the finalization of the adoption;
- denial of assistance based upon a means test of the adoptive family;
- 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 adoptive 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; and
- denial of a request for a change in payment level due to a change in the adoptive parents circumstances.
How Do I Start The Process?
For parents who believe their child(ren) are eligible for subsidies after the finalization of the adoption:
- Contact the public or private nonprofit agency through which the adoption was finalized. Ask for an application form for Title IV-E Adoption Assistance/Subsidy. Some agencies complete the application internally and only request information from the parents. In most cases, the “clock” begins ticking once you are aware that your child was denied or overlooked for benefits; you have a certain number of months varies by state in which to file for an appeal or negotiate a subsidy agreement, or lose your right to appeal forever.
- Public agencies are responsible for payment of adoption subsidies. However, private nonprofit agencies can be party to the adoption assistance agreement, as well as act as liaisons between the family and the public agency. If you adopted through a private nonprofit agency that is unwilling to work with you, feel free to contact your local or state social services office directly.
- Families that apply for subsidies after the finalization of an adoption will automatically be denied benefits. Don’t panic. This is just part of the process that is required by federal policy. A denial of benefits, however, must be done in writing by the public agency.
- When you receive the written denial, your family must be given the opportunity to appeal the decision through an administrative appeal or fair hearing process. Families are given between 15-90 days to make a written request for an appeal. If you miss the deadline, you are out of luck.
- In your letter to the agency, state the child’s name, an identification or case number (if applicable), your name and address, and the reason(s) you believe the child deserves a subsidy. You need to state in the letter that you “request an administrative fair hearing.”
- Be sure to date and sign the letter, make a copy for your records, and send it certified mail. A certified letter creates a paper trail.
- At this point, the burden of responsibility is placed on the agency to act. The agency must contact your family to schedule a fair hearing, although it may take several months for the hearing to actually take place. Agencies must act in a timely fashion (according to 45 CFR 205.10), but “timely” has not been formally defined. NACAC believes timely to mean roughly 30 days from the date the state agency should have received the request.
Families that are not successful in administrative hearings may further pursue their case by filing an appeal in court.
What Happens If We Win?
In situations where the final hearing decision is favorable to the adoptive parents, the state agency can reverse the earlier decision to deny benefits under Title IV-E. If the child meets all the eligibility criteria, Federal Financial Participation (FFP) is available, beginning with the earliest date of the child’s eligibility (e.g., the date of the child’s placement in the adoptive home or finalization of the adoption) in accordance with federal and state statutes, regulations and policies.
A hearing officer may order the state to negotiate a subsidy agreement with the family, or he or she may order the state to give the child’s file another review for possible eligibility. If a subsidy contract is negotiated, the state may be willing to pay the entire retroactive amount or it may decide to negotiate with you on the amount of “retroactive payments” it is willing to pay. Each family must decide between negotiating quickly for a lesser amount or continuing the legal process to push for the full amount.
Once the subsidy agreement is negotiated and signed, the first subsidy check should arrive within 30 days and Medicaid will back date to the day of the legal decision that found in the child’s favor, unless the hearing officer decides to back date Medicaid coverage further.
There are cases on record where lump sums were awarded to partially reimburse a family for medical expenses incurred because the child did not have Medicaid coverage. Generally, however, retroactive subsidy is the only back payment available.
For state-specific information, please contact NACAC’s Adoption Subsidy Resource Center at 800-470-6665, 651-644-3036, or firstname.lastname@example.org. The Center was created by NACAC to help educate parents and professionals throughout the United States on adoption subsidy issues.