New Adoption Deal Should Take on Subsidies Fraud

By Servet Bayimli

As the Children’s Law Center’s Broken Adoption Project members, we applaud Congress on reaching a deal on H.R. 4980. The bill offers states a new framework to calculate adoption incentives, support post-adoption services, track broken adoptions, and combat youth sex trafficking.

We are elated to see H.R. 4980 specifically address permanency issues by reforming case planning protocols, to address broken adoptions by beginning data collection, and to address post-adoption services by setting spending minimums. We are very happy that these issues are presently on the minds of our lawmakers and that they are acting on them.

Unfortunately, it appears the bill has no teeth when it comes to how states use the broken adoption data to inform its allocation of adoption subsidies.

The new bill mandates the Secretary of Health and Human Services to release protocols regarding how states should track the number of broken adoptions. The bill, however, is silent on how states ought to use that information to inform their own practices.

The Children’s Law Center is a non-profit law firm in New York that represents nearly 8,000 children in NYC Family Court annually, and among them, children who were adopted out of foster care but saw the “forever home” they were promised dissolve. Through our Broken Adoption Project, the Children’s Law Center seeks to achieve systemic change that will lead to more enduring “forever homes” for these children.

On October 7, 2013 we submitted a series of recommendations to Congress regarding a bill similar to H.R. 4980. Based on the cases we reviewed and the research we conducted, we argued that the bill at the time did not emphasize the importance of permanency, given the alarming rate of broken adoptions and the importance of post adoption services.

The Adoption Assistance and Child Welfare Act grants federal subsidies in order to increase adoption rates from the country’s foster care system. In 2010, Congress spent $2.5 billion on these subsidies.

Ideally, these subsidies enable foster parents to adopt a child and provide him or her a permanent home without sacrificing the financial assistance that foster care payments provide.

The federal government misses the mark when it pays no attention to the fraud associated with these subsidies when adoptive parents who no longer live with or support their children cash these subsidy checks. An unfortunate reality of child welfare is that untold numbers of children are forced out of the home, return to foster care, become homeless or incarcerated or reunite with their biological parent, while the adoptive parent continues to receive payments for their care.

The Adoption and Guardianship Assistance Program allows states to terminate subsidy payments for only three reasons:

  • If and only if the child is above 18 years of age (or 21 years-old with a disability)
  • If the state determines that the adoptive parent or guardian is no longer legally responsible to support the child
  • If the state determines that the child is no longer receiving any support from the adoptive parent or guardian.

While the last provision seems like it would stop this sort of fraud, Congress does not provide states with the tools necessary to determine if a child is no longer receiving support from the adoptive parent. Congress instead requires individuals to act on their good will and inform the state if they are no longer supporting their child. Some parents are aware of this loophole in the law and use it to milk the government at the expense of the welfare of their children.

In some situations, children who are returned to foster care after an adoption have tax dollars paid twice for their care–one payment to the foster care agency and one to the adoptive parent. If states effectively use the data they collect from broken adoptions, they can fight to curb these egregious cases of subsidy fraud.

This bill should authorize states to investigate whether an adoptive parent is continuing to provide support for his or her child. The current deal fails to provide any mechanism to track, stop, or transfer the subsidies of children who move out of the home, are forced out, or reunite with their biological parent.

Currently, the Department of Health and Human Services (HHS) bars states from even investigating adoption subsidy fraud. Adding a provision in H.R. 4980 directing the HHS to loosen its policies and to enable states to investigate instances of fraud would also prove useful.

While we understand and respect the autonomy of adoptive families, ensuring children receive money allocated for their welfare ought to be the overriding concern of Congress. It simply makes no sense that monies allocated for the child remain with the parent if the child moves to a different home. The subsidy should follow the child, not remain fixed with the adoptive parent.

While H.R. 4980 is a step in the right direction for tracking broken adoptions, Congress must give states the tools to investigate if an adoptive parent is no longer caring for his or her child in order to further its goals of preventing fraud and supporting our youth.

In the midst of fiscal hardship for the entire nation, it is more crucial than ever that the money Congress allocates for these vulnerable children is actually being used for their care.

Bayimli is an Amherst student and an intern for the Children’s Law Center. CLC Attorneys Dawn J. Post and Sarah McCarthy also contributed to this column.

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