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Adoptive & Foster Families

OCYF Bulletin 3140-99-01
Adoption Assistance Questions
Appeal Issues

31. When can subsidy be appealed?

Regulations at 3140.210 (a) state that, "a child applying for or receiving adoption assistance or a person acting on behalf of a child has a right to a department hearing to appeal: (1) A finding of ineligibility after determination of eligibility. (2) A denial or reduction of service. (3) The termination or suspension of service."

Subsequent to the publication of regulations the federal government released a Policy Interpretation Question (PIQ) that gave more information on fair hearings. This PIQ is included with this bulletin as attachment C (ACYF PIQ-92-02). Refer to that PIQ for more details on when appeals are appropriate.

32.  Is a request for an increase in subsidy that is denied in full or in part considered a "denial or reduction of service" and thus grounds for an appeal?

Yes. Federal policy clarification (ACYF-PIQ-90-02), page # 6, question # 6, allows for "periodic adjustments" to adoption assistance benefits. Adjustment can mean either an increase or a decrease. In the case where the adoptive parents request an increase based on changed circumstances, the county agency "cannot arbitrarily" dismiss the request.

Federal fair hearing regulations at 45 CFR 205.10 apply to the Title IV-E Adoption Assistance Program. Section 205.10 (1) (3) indicates that:
    "Every applicant or recipient shall be informed in writing at the time of application and at the time of any action affecting his claim:

1. of his right to a fair hearing, as provided in paragraph (a) (5) of this section;
2. of the method by which he may obtain a hearing;
3. that he may be represented by an authorized representative ... or he may represent himself."

33. If an adoption has been finalized without an adoption assistance agreement, can an appeal be filed later?

It is possible to file for a fair hearing and request adoption assistance after an adoption has been finalized. The types of situations which would constitute grounds for a fair hearing are found in federal policy at ACYF-PIQ-92-02 and ACYF-PIQ-90-02. State regulations are found at § 3140.210.

These situations include:

1. relevant facts regarding the child, the child's background or   biological family were known and not presented to the   adoptive parents prior to the finalization of the adoption;
2. assistance was denied based on a means test of the adoptive family;
3. an erroneous determination was made by the county agency regarding the child's eligibility status;
4. the county agency failed to advise the adoptive parents of the availability of adoption assistance.

It is the responsibility of the fair hearing officer to determine if the circumstances fall within one of the above areas.

The appealable circumstances include any action resulting in disagreement. For instance, the agreement may not be in place because the adoptive family and the agency could not agree on the amount of the subsidy. The family may want a higher amount (but not more than the foster care maintenance agreement) than the agency is willing to provide. Or, after the agreement is in place, the family may request an increase, which the agency denies. These circumstances are examples of appealable circumstances. They are not the only circumstances.

In the event an agency agrees with the adoptive family that they made an error, an appeal still must be filed. The agency can help speed up the process by providing the hearing officer with documentation to indicate their agreement with the appeal as filed by the adoptive parents.

34.  What is the process for filing an adoption assistance fair hearing request?

If the parents are dissatisfied with a county agency decision relating to adoption assistance, they may file an appeal in writing within 15 calendar days of receiving written notice of an adverse decision from a county agency.

Upon receipt of the appeal the county agency shall date stamp the appeal and submit the appeal with a copy of the agency action that is being appealed to the Department of Public Welfare, Bureau of Hearing and Appeals. The Bureau of Hearing and Appeals has exclusive authority to grant or dismiss the appeal.

In addition to county agency responsibility in relation to appeals as described in question # 32, the county agency is responsible for ensuring the following:

• explain to parents how to file an appeal;
• if necessary, help the parents to complete the written appeal request;
• explain that all oral appeal requests must be put in writing within three days of the appeal;
• assure that the appellant has signed the appeal;
• date stamp the appeal when it is received and review it to determine if its actions were correct in accordance with Departmental regulations and policies;
• take steps to resolve the issue without a hearing;
• forward any appeals that are not resolved at the county agency level within three working days from the date the appeal was received and date stamped to:

Department of Public Welfare
Bureau of Hearings and Appeals Bertolino Building,
6 1h Floor
PO Box 2675
Harrisburg, PA 17105-2675.

The appeal process is per Chapter 275 Appeal and Fair Hearing and Administrative Disqualification Hearings.

35. If a family files a timely appeal while receiving adoption assistance will the adoption assistance continue during the appeal process?

Yes. If parents file a timely appeal relating to adoption assistance benefits, the terms of the existing agreement remain in effect pending the outcome of the appeal.

36. If a family files an appeal with the Bureau of Hearings and Appeals (BHA) and "loses", can the appeal continue at another level? If so, where?

The appellant may ask the Secretary of Public Welfare to reconsider the BHA decision if the request is made within 15 days of the decision of the Bureau of Hearings and Appeals.

The appellant may also file a Petition for Review (PFR) with the Pennsylvania Commonwealth Court within 30 days of the mailing of the BHA decision. The case will be heard by the higher court and reviewed to determine:

• if an error of law was made;
• whether there is substantial evidence in the record to support the BHA decision; or
• whether constitutional rights were violated.

The time for both options tolls concurrently. Both options may be selected concurrently.