Introduction

At the end of August 1988, the Secretariat requested each party state to send us a copy of its standard Adoption Assistance Agreement. As of this writing, 15 party states have responded. We present some observations based on the ones we have received.

The Secretariat's purpose in asking to see the Agreements which the states are using was to make it possible to assess the extent to which the Agreements now in use implement ICAMA and applicable federal requirements relating to the protection of the interest of children covered by adoption assistance agreements. This brief does not seek to evaluate each of the Agreement forms individually. However, we will describe what we have found and, where appropriate, offer suggestions. It is hoped that each state will compare our comments with its own form of Adoption Assistance Agreement.

Along with ICAMA itself, a state's Adoption Assistance Agreement is a primary tool in providing the protection of the interstate interests of adoption assistance children which good practice and policy require and which compliance with federal law necessitate.

ICAMA and ICAMA Procedures

Several of the Agreements recite that the interstate interests of children are protected by the state's membership in ICAMA. Some (but not all of these) spell out a few instructions to be followed by adoptive parents and the state in cases where the adoptive family moves. Although not as extensive or in the same words as ICAMA Form 5.02 (Notice of Action), these provisions generally track with ICAMA forms and procedures and should prove useful to adoptive families.

It is important that the Adoption Assistance Agreements mention ICAMA. One purpose is to clarify and emphasize to adoptive families the relationship between ICAMA generated instructions which they receive and their benefits and obligations under their Adoption Assistance Agreement. Another value to be obtained by the state is specific demonstration that it is meeting the federal requirements related to the protection of interstate interests by compacts (See P.L. 96-272, Sec. 475 (3)).

COBRA and ICAMA Requirements

Although the Agreement texts vary widely, most of them give evidence of having been influenced by federal model provisions and Consolidated Omnibus Reconciliation Act of 1986 (COBRA) requirements. In particular, they recite that the adoptive parents understand Title XIX, Medicaid, and Title XX, Social Services, will be provided by the residence state. While this is the law in any case, understanding of this point by adoptive families important and its inclusion in the actual text of the Adoption Assistance Agreement should prove helpful.

Adoptability of a Child

A few of the Agreements undertake to provide specific evidence that the child is unadoptable without subsidy. This seems to be an effort to make sure that the definition of "child with special needs" used in federal law (also in ICAMA) is met by the particular case being covered in the Adoption Assistance Agreement. In terms of providing legally competent evidence on this score, Agreement provisions can be used.

The approach appears to be to include in the Agreement a declaration that the undersigned adoptive parent(s) could or would not adopt the named child without the adoption assistance (presumably including Medicaid program benefits). The language used in the several agreement forms received by the Secretariat imposes a more rigorous standard of unadoptability than required by federal law and the ICAMA definition of "child with special needs." The examples reviewed reveal that care should be taken in formulating the language used in the declaration.

Families with considerable financial resources are sometimes able to take a special needs child, but they may be unwilling to devote a very large part of their resources to an adoptive special needs child. To do so without the subsidy might cause retrenchment of expenditures on their other children or lessen their financial reserves more than they would willingly allow.

The Secretariat suggests that these provisions are unnecessary and that, if they are used, they should be carefully formulated to do no more than strictly follow the language of the federal law and ICAMA. The Secretariat proposes that, after reciting the conditions that make a child one with special needs, the Agreement rely on the language of Article III of the Compact which states: "...because of which it is reasonable to conclude that such child cannot be placed with adoptive parents without providing adoption assistance." This "reasonable conclusion" is one that the state agency can make. The child's case history (including but not limited to actual efforts, if any, to place the child without subsidy) should be sufficient evidence of special needs status.

Appeals and Fair Hearings

Most of the Agreements (but not all of them) have provisions giving the adoptive parents rights to appeal the adoption assistance state's decisions. The Agreement either sets forth the basic procedures to be followed or directs aggrieved parties to initiate an appeal and a fair hearing request by applying to the identified agency (name and address included). The availability of appeal and fair hearing is a requirement for compliance with federal law. Nevertheless, specific inclusion of the right to appeal in the Adoption Assistance Agreement is important because it makes clear that the right is being accorded and that the adoptive parents have notice of these rights.

Appeals and Fair Hearings in Interstate Cases

An administrative action or omission of a state agency must be appealed in the state where the action was taken or omitted. Frequently, this can mean that an action of the adoption assistance state's agency is the alleged grievance from which an appeal is desired. In other instances, the administrative act or appeal is desired. In other instances, the administrative act or omission complained of may be that of the residence state dealing with the provision of Medicaid or some other service to which the adoptive family claims a right. Where the residence state is claimed to be at fault, the practical situation is similar to that presented by most proceedings for the taking of appeals from state administrative action. The adoptive family will be living in the residence state and will face only the normal problems in pursuing its claims of grievance. However, where the complaint is against an act or omission of the adoption assistance state, a special problem exists. The adoptive parent must likely travel to the adoption assistance state (perhaps a number of times) in order to make an effective appeal, including participation in one or more hearings. Obtaining and conferring with counsel in the perhaps distant state is likely to be necessary.

It is generally (if not universally) true that an aggrieved party is constitutionally entitled to no more than the right to invoke the procedures available in the state whose act or omission the party alleging a grievance wishes to contest. As a practical matter, however, most of the adoptive parents who receive adoption assistance will not be in a position to prosecute appeals in states other than the one where they live.

Conceivably, Compact administrators may be assisted by procedures through which rights of appeal and Fair hearing in interstate cases under ICAMA could be more easily pursued. The effort would be a pioneering one and might or might not prove successful. But if such a system could be instituted, it probably would add to the protection of the interstate interests of children in some instances.

ISSUE BRIEF III

© December 1998