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No benefits for Ohio families that foster relatives, appeals court rules

Foster families in the Buckeye State that care for relatives are not properly licensed to receive the same federal maintenance payments as fully licensed caregivers, according to a ruling from the Sixth Circuit.

CINCINNATI (CN) — Ohio foster parents who care for relatives but do not meet all eligibility requirements under the Child Welfare Act are not entitled to the same maintenance payments as fully licensed foster families, an appeals court panel ruled on Wednesday.

While the families are approved by the state to care for foster children, this approval does not equate to being licensed under federal law, according to the ruling.

Under the current scheme, the Ohio Department of Job and Family Services, or ODJFS, administers two foster care systems in the state, one of which is governed by Title IV-E of the Social Security Act, while the other is a separate, state-run system for those not qualified for the Title IV-E program.

A class of foster children and their caregivers sued the state in 2020 and claimed they were eligible for full maintenance payments under the federal program, not the reduced per diem they currently receive.

U.S. District Judge Michael Barrett sided with the state, however, and dismissed the lawsuit in July 2021.

Barrett, a George W. Bush appointee, ruled Governor Mike DeWine was entitled to sovereign immunity because his actions as governor were too far removed to have any impact on the state's foster care system.

The claims against the ODJFS were dismissed not on the grounds of immunity, but because Barrett concluded foster families were required to meet federal licensing requirements to receive full maintenance payments.

The families appealed to the Sixth Circuit and the case was argued in June 2022.

In Wednesday's opinion, the panel succinctly rejected the families' argument their approval to operate foster homes under Ohio law satisfies federal licensing requirements.

"Congress made clear that the same standards apply to every foster family home; it did not create two separate standards (i.e., one set of licensing standards and one set of approval standards) that would both be sufficient for maintenance payment eligibility," wrote U.S. Circuit Judge John Nalbandian. (Parenthesis in original)

Nalbandian, a Donald Trump appointee, concluded that because Ohio created separate standards to delineate between approved and certified caregivers, approved families would only be eligible for full payments if the standards were the same as those espoused by the federal government.

"By having different standards," he said, "Ohio's system creates a group of caregivers eligible for maintenance payments and an ineligible group. The district court was thus correct that the plaintiffs, who are not 'foster family homes' under Title IV-E, are ineligible for maintenance payments and failed to state a claim."

Nalbandian emphasized that even if certain foster families meet the approval requirements of a state-run foster care system, "what counts is who satisfies the HHS-approved state eligibility requirements." (op., p. 10)

He cited an analogous case involving Kentucky decided by another Sixth Circuit panel less than two weeks ago and pointed out the federal government expressly ruled out "approved" families receiving federal benefits in its amicus brief.

"Foster family homes that are approved must be held to the same standards as foster family homes that are licensed," Nalbandian said, quoting the brief. "Anything less than full licensure or approval is insufficient for meeting Title IV-E eligibility requirements."

The foster parents also argued they were denied payments solely because of their relationships to the children under their care, but Nalbandian rejected the claim.

"Ohio does not withhold maintenance payments because a caregiver is related to a child," he said. "Non-certified relative caregivers can apply for certification in Ohio and Ohio encourages them to do so ... [b]ut the Kinship Support Program aims to keep children with relatives by providing temporary funding to relative caregivers and then encouraging them to become certified."

U.S. Circuit Judge Chad Readler, another Trump appointee, agreed with Nalbandian's lead opinion, but authored a concurrence in which he expounded on his belief that ODJFS Director Matt Damschroder should be immune to the claims brought by the families.

While Readler agreed the families seek prospective relief to prevent an alleged ongoing violation of federal law typically allowed under the Ex parte Young exception to sovereign immunity, he balked at the idea because it would require "Ohio officials to make ... payments out of the state treasury."

"Plaintiffs contend that Ohio misreads federal law," he said. "And because, plaintiffs allege, Ohio has been wrongly administering a federal benefits program, an order requiring Ohio to properly administer that program would be appropriate under Ex parte Young, they say, even if doing so would implicate the state fisc.

"Yet plaintiffs do not ask for an order forcing Ohio to come into compliance with their reading of federal law. Rather, they make an inflexible demand for money. ... The relief they seek, in other words, is simply damages by another name."

Senior U.S. Circuit Judge David McKeague, a George W. Bush appointee, rounded out the panel.

Attorney Paul Lewis of DLA Piper, who argued in June on behalf of the foster families, expressed his disappointment with the court's decision.

"We are carefully reviewing the decision," Lewis said, "but it is obviously disappointing and harmful to the thousands of poverty-stricken, abused and neglected Ohio foster children being cared for by their relatives who have been approved by the state to care for them and should thus be entitled to full foster care maintenance supports under federal law."

The State of Ohio did not immediately respond to a request for comment.

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