From "The Coalition Voice" NYSCCC, Summer 2000
Recently, many adoptive parents have contacted the NYS Citizens' Coalition for Children for information about the fair hearing process. In particular, these parents are seeking assistance in assessing their chances of obtaining their desired result. To this end, the Coalition compiled twenty-seven cases dated between 1988 and 1998 where adoptive parents successfully appealed a previous decision concerning their subsidy.
The analysis of these cases revealed several trends. Of the cases compiled, ten cases (37%) resulted in the adoptive family receiving the higher subsidy that they requested. Four cases (14.8%) concerned the date that a change in subsidy would be effective. Three cases (11.1%) concerned situations where the agency had improperly terminated a family's subsidy. Nine cases (33.3%) concerned agency error and the impropriety of penalizing a family for agency mistake. Some of these cases dealt with multiple issues and therefore were counted in more than one category; the remaining cases that did not fall within these trends are not discussed here.
Increase in Subsidy Granted
In cases where the court granted a subsidy increase, the definitions of "special" and "exceptional" appear to be key. The central factor in the definition of the "special" category is the requirement for a "high degree of supervision." 18 NYCRR 427.6(c)(2) and 427.6(c)(4). Children in the "exceptional" category require 24 hour-a-day-care, have severe behavioral problems, or have been diagnosed with a severe mental illness. 18 NYCRR 427.6(d)(2), 427.6(d)(3), and 427.6(d)(4) .
According to the examined cases, specific documentation and/or testimony by the appropriate professionals that squarely place a child into the "special" or "exceptional" category is necessary to obtain a higher rate. For example, in requesting the exceptional rate for her son, one adoptive mother testified that "… he bangs his head against the wall when he becomes angry and has bitten a child in the neighborhood, stuck a pencil in his sister's arm and hit her with a piece of wood. He fights and bites at school and has struck a teacher…." She further testified that "she must sleep 'with one eye open' since he has swallowed bottles of medications such as Nyquil and Alka Seltzer at night…." In addition to her own testimony, this appellant submitted the report of a licensed psychologist that indicated the child's need for constant supervision to ensure that he does not harm himself or others. For example, "He has been known to take rocks on occasion and use them as a weapon, hurting other children seriously." Because of the proper documentation and the high degree of specificity, the court determined that this child met the criteria for the exceptional rate.
Effective Date of Increase
New York State regulations do not resolve questions concerning the effective date of a change in subsidy. Local policy and discretion, therefore, are the guidelines for the effective date. However, courts will not allow the agency to fall back on "discretion" when the agency itself caused an unreasonable delay. To that end, the court might apply the new rate as of the date that the agency should have completed the process, had it acted in a timely manner.
In addition, the subsidy can only be provided after the proper documentation has been submitted. For example, in another case, the appellants' child was diagnosed with HIV almost a year after he was adopted. While a diagnosis with HIV unquestionably qualified him for the exceptional rate, the parents did not receive the new rate for almost six months after they supplied the agency with the proper documentation. When the court remedied the agency's delay, it retroactively implemented the rate only to the date that the appellants established eligibility for the exceptional rate by providing medical documentation of the diagnosis.
Guidelines for Continuing Subsidy
The discontinuance of adoption subsidies falls under strict rules. According to the regulations, adoption subsidy payments may only be discontinued if "the adoptive parents are no longer legally responsible for the support of the child or the child is no longer receiving any support from such parents." 18 NYCRR §453(1)(c). "Legal responsibility" is not necessarily negated by a change in custody for the child. Therefore, an adoptive parent's subsidy should not be discontinued automatically just because a child is no longer in their home. They may, however, be required to contribute to the support of the child.
Courts interpret "any" support to mean, literally, "any" support. There is no requirement that the subsidy payments be equal or close to the amount of the costs/needs. One administrative law judge explained, "[The legislature] did not require that the parents provide substantial or any other particular level of support, nor did it even leave room for debate whether some unstated minimum level of support is an implicit requirement … the test is whether the adoptive parents are providing any support."
In one case, the court ruled that buying clothing, providing the child with spending money, caring for the child during home visits, and maintaining a life insurance policy and a college fund for the child constituted "any" support and that the subsidy should not have been discontinued.
Agency Mistake
Finally, according to the cases analyzed, when an agency makes a mistake that negatively affects the amount of subsidy that a family receives, courts will not hold that mistake against the family. In addition, if the agency gives the family false information that the family then relies upon, the family should not be penalized.
Conclusion
Besides providing helpful information about the types of cases that an administrative law judge may look favorably upon, these cases show that perhaps the best proactive step that adoptive parents can take is to maintain good records. Whether it is to provide specific information about a child's condition or to provide a paper trail documenting the parents' interactions with the agency, proper documentation may be the best means by which adoptive parents can prove that their children are deserving of a higher or continuing subsidy.
NYS Citizens' Coalition for Children, Inc.
410 East Upland Road • Ithaca, NY 14850
607-272-0034 • office@nysccc.org
7/14/05