Ohio foster parents argue for benefit payments at Sixth Circuit

CINCINNATI (CN) — Foster parents approved to care for relatives under Ohio's state-funded foster family program are not properly licensed for benefit payments under the federal-state program funded by the Social Security Act, the state argued on Tuesday before a Sixth Circuit panel.

A class of foster parents denied maintenance payments from Ohio's Title IV-E state-federal foster care program, along with the children they care for, sued Governor Mike DeWine and the Ohio Department of Job and Family Services, or ODJFS, alleging they are entitled to benefits after being approved to care for foster children who also happen to be relatives.

In response, the state claimed the parents' eligibility for the state-funded foster program was separate from the joint state-federal program, and that its officials were entitled to immunity from the suit.

U.S. District Judge Michael Barrett agreed with the state and dismissed all of the claims in July 2021. The George W. Bush appointee ruled DeWine was too far removed from the implementation of Ohio's foster-care system to be named as a defendant, despite the parents' argument his campaign promises regarding foster care subjected him to liability.

The claims against ODJFS were also dismissed by Barrett, who found the lack of a foster home license prevented the caregivers from being eligible for federal benefits, although he admitted the situation was far from ideal.

"The court acknowledges that foster children, one of Ohio's most helpless and vulnerable populations, and the relatives who care for them, certainly deserve more," the ruling states. "The difference in payment due to a difference in placement, in a licensed home or not, is neither ideal nor even satisfactory. However, the court is bound by [federal law]."

In their brief to the Sixth Circuit, the foster parents claimed payments they receive from the state are "unequal and woefully inadequate," and said Barrett's decision was misguided, especially in light of the appeals court's 2017 decision in D.O. v. Glisson.

The court in Glisson required federal maintenance payments to be made to all "approved" foster families, according to the families' brief, regardless of whether those families are licensed.

"That this court got it right in Glisson was confirmed by Congress's subsequent 2018 amendment to the definition of 'foster family home,'" the brief states, "which added language further clarifying the inclusion of homes meeting alternate 'approval' standards within the definition."

In its brief, Ohio argued first that the lower court lacks jurisdiction to resolve the case because its officials are entitled to sovereign immunity. Although states and their officials can be sued for alleged constitutional violations under the ex parte Young doctrine, Ohio claimed the doctrine is inapplicable in this case because "the 'primary thrust of the suit' is a demand for 'money.'"

The state also disputed the families' claims regarding the Glisson decision and argued Congress's amendment to the federal funding program contained "redundancy" in the use of "licensed and approved" to "'remove doubt' about the statute's scope," not to expand eligibility.

Attorney Paul Lewis argued Tuesday on behalf of the foster families and told the appellate panel that because his clients meet all federal guidelines for the payments, "this case should start and end with the words of the statute."

U.S. Circuit Judge John Nalbandian, a Donald Trump appointee, asked Lewis what would happen if the Department of Health and Human Services refused to reimburse Ohio for maintenance payments made to relative foster families.

The attorney answered that the federal government is required by law to reimburse two-thirds of the payments, but that the reimbursement process is wholly separate from the initial payments.

U.S. Circuit Judge Chad Readler, another Trump appointee, asked about immunity and, specifically, whether the case was about money.

"We are only asking the court to order Ohio to comply with the statute," Lewis answered.

He went on to say that immunity should not be granted because his clients do not seek any retrospective damages, but only future payments under a federal benefit program.

Attorney Mathura Sridharan of the Ohio Attorney General's Office argued on behalf of the state and disputed her opposing counsel's claims regarding reimbursement.

Sridharan told the panel HHS will not reimburse maintenance payments made to relative foster families because those families are approved under a separate state program never adopted by the federal government.

"We did not submit it. They did not review it. They did not approve it," she said. "You cannot meet a lower set of standards and say that you have been approved [for the payments]."

Nalbandian asked the state's attorney about immunity toward the end of her arguments, and questioned whether the relief sought through a benefit program should allow the suit to proceed.

Sridharan said there must be a "distinctive, non-monetary element" to the relief sought by the plaintiffs, and pushed back against the idea such an element is present here.

"The primary thrust of their suit is money," she concluded.

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

No timetable has been set for the court's decision.

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