TESTIMONY BEFORE

THE

JOINT COMMITTEE ON AGENCY RULE REVIEW

DECEMBER 20, 2001

Mr. Chairman and members of the committee. My name is George Biggs. I am the Assistant Executive Director of the Ohio Association of Child Caring Agencies (OACCA). I am here today to offer testimony in opposition to several rules filed by the Ohio Department of Job and Family Services (ODJFS) for the implementation of HB332 regarding the creation of specialized foster homes and the requirements for foster parent training.

For many years prior to the passage of HB 332, OACCA has advocated for the implementation of specific rules relative to the operation of specialized foster homes. Prior to HB 332 we served on several committees with the department in an attempt to develop specific specialized foster care rules with no success.

Governor Taft signed HB 332 into law in July 2000 with an effective date of January 1, 2001. The law mandated that “not later than ninety days after January 1, 2001, the department of job and family services shall adopt rules in accordance with Chapter 119. of the Revised Code as necessary for the efficient administration…” of this law. This effectively gave the department nine months to develop the rules. For reasons unknown to us the department chose to exclude organizations affected by the rules, including OACCA, from participation in the rule development process. We provided comments on the initial draft of these rules last spring and reiterated our desire to participate in the revision process. We received no response from the department until the proposed rules were filed with this committee in September. We provided testimony in November at the public hearing and, again, requested an opportunity to participate with the department in revising the rules prior to them being refiled. Again, we heard nothing until the rules were refiled on November 29th.

Had OACCA and other organizations had an opportunity to participate in the rule development process from the beginning I am confident that the department would have been able to meet their legislative mandate to adopt rules “not later than ninety days after January 1, 2001…”. As it is, we are here, some 264 days after the department’s statutorily mandated deadline for adoption of rules, 354 days after the effective date of the statute, and 17 months after the Governor actually signed the legislation. And we are here faced with rules that we believe clearly violate specific sections of HB 332.

I would like to briefly highlight several specific examples of where we believe this is the case.

I.OAC Rule 5101:2-5-09.1 requires recommending agencies to conduct criminal records checks through BCII on persons applying to become foster caregivers and limits the amount an agency may charge for these checks. The language in paragraph (L) of this rule is not new language nor is it a requirement of HB 332. However, since this rule was adopted, new technology has become available to enable agencies to receive reports back from BCII within a few hours as opposed to weeks or months. This technology is expensive, and private agencies need to be able to recoup the cost of their investment by charging an additional fee to potential foster caregivers. The language in this rule prohibits an agency from charging any more than the fee charged by BCII to conduct the criminal records check. ORC Section 109.572 states that an agency may charge a reasonable fee, but sets no limit. We have raised this issue with the department several times, but our concerns have not been addressed.

In the Rule Summary and Fiscal Analysis form filed by the department they have indicated that the cost to those persons directly affected by this rule is unknown, and that many agencies, at their own discretion, already conduct criminal records checks on all adult members of a foster home. This is partially true. While many agencies do currently conduct criminal record checks of all adults living in a foster home (other than the actual foster caregivers), many do not. Since this rule mandates that these checks be completed pursuant to HB 448, there will be a significant cost to many agencies. To say that the fiscal impact is unknown is not an adequate fiscal analysis.

We believe this rule exceeds the department’s statutory authority and we respectfully ask that this committee recommend that this OAC rule 5101:2-5-09.1 be invalidated.

II.HB 332 mandates, in ORC Section 5102.031, that ODJFS may not issue a certificate to a specialized foster caregiver until they have completed at least thirty-six hours of preplacement training. This is the only legislative requirement to be a specialized foster caregiver. We believe that ODJFS has exceeded the legislative intent of HB 332 in OAC rule 5101:2-7-16 and 5101:2-7-17 by requiring a specialized foster caregiver to “have at least two years of experience as a certified foster caregiver or the equivalent child care experience, education or training as determined by the recommending agency”.

There are nearly 12,000 foster homes in the state of Ohio. Nearly 50% of all foster care is provided by the private sector. In addition, over 70% of all foster care for children 12 years of age or older is provided by the private sector. These are the most difficult, most disturbed children who need specialized foster care. Most private agencies operate only specialized foster homes, and have done so for many years. It is only since the passage of HB 332 that Ohio law has recognized the existence of specialized foster care. If prospective caregivers must have two years experience as certified foster caregivers before they can be certified as specialized foster caregivers there will be nowhere for private agencies to recruit new specialized foster caregivers except from the public sector agencies who operate the more traditional foster care programs. Neither of us wants this to happen. If the requirement for prospective foster caregivers to have two years of experience as a foster caregiver before being recommended for certification as a specialized foster caregiver is allowed to remain there will be little or no private sector specialized foster caregivers within five to ten years. We do not believe this was the legislative intent of HB 332. Not only is this requirement bad public policy, it exceeds the legislative intent of ORC Section 5102.031.

We respectfully request that this committee recommend that OAC rules 5101:2-7-16 and 5101:2-7-17 be invalidated.

III.OAC Rule 5101:2-5-36 is a new rule and delineates requirements for an agency to be certified to recommend treatment foster homes for certification. In paragraph (K) of this rule the department has imposed new training requirements on professional treatment staff.

The Rule Summary and Fiscal Analysis indicates that there will be “some additional cost to affected agencies, but this is at the agency’s option”. How is a rule requirement optional for affected agencies? It is not an option for private agencies not to hire licensed professional treatment staff, so the additional training is not an option either. This training more than doubles the training requirement for licensed professionals pursuant to ORC Chapter 4757, so it will more than double training costs for agencies. The department’s statement that there will be “some additional cost to affected agencies…” implies that cost will be minimal. This is an incomplete and inaccurate fiscal analysis.

We respectfully request that this committee recommend that OAC rule 5101:2-5-36 be invalidated.

IV.HB332, ORC Section 5103.0313 states that:

“The Department of Job and Family Services shall reimburse a public children services agency, private child placing agency, or private noncustodial agency for the cost to the agency of providing training to a foster caregiver…”.

In addition, ORC Section 5103.0312 mandates that the department shall reimburse agencies for the cost of training stipends agencies are mandated to pay to foster caregivers.

OAC rule 5101:2-5-38, paragraph (J) makes the payments by the department contingent on the availability of funds. HB 332 contains no such contingency language.

If private agencies will be required to provide all of the training mandated by HB 332, the department must be required to pay for the training as mandated by HB 332.

In the absence of a commitment from the department to follow the law, we respectfully request that this committee recommend that OAC rule 5101:2-5-38 be invalidated.

V.For many years OACCA and other private associations have strongly objected to the department’s arbitrary, and we believe illegal, failure to certify the public agencies performance of their foster care functions.

ORC Section 5103.02 defines an association or institution as:

“any incorporated or unincorporated organization, society, association, or agency, public or private, that receives or cares for children for two or more consecutive weeks”.

ORC Section 5103.03 gives the department authority to:

“adopt rules as necessary for the adequate and competent management of institutions or associations”.

OAC rule 5101:2-1-01 Children’s Services Definitions became effective in October 2001 after approval by this committee. This rule defines an agency as a:

“public children services agency (PCSA), a private child placing agency (PCPA), or private noncustodial agency (PNA) certified by ODJFS”.

We believe the ORC Sections 5103.02 and 5103.03 are clear that all agencies, both public and private, must be certified. In the initial draft of these rules the department supported certification of public agencies. Between the initial draft and the filing of these rules with this committee, this requirement was removed.

In addition, the department has taken further steps by re-filing other rules, after the public hearing. The re-filed rules provide “back door support” for the department’s failure to certify public agencies. In light of the department’s suggestion that we participate in a mediation process regarding this issue we feel that the re-filed rules presuppose the outcome of the mediation.

The licensure of the public agencies is not a matter of ODJFS supporting “one side or another”. It is about what is in the best interest of families and children. It is extremely puzzling and disturbing to us that the organizations responsible for children’s safety are objecting to being held accountable, with appropriate and meaningful sanctions, to minimum standards of care.

When the department conducts a review of a public agency and finds them to be in compliance they issue a letter to the agency to that effect. When the department conducts a review of a private agency and finds them to be in compliance they issue a letter and a certificate to the agency to that effect.

The issuance of a letter to a public agency versus a certificate to a private agency is not the same. If a private agency violates administrative code rules the department will place the agency on a temporary certificate, which requires frequent oversight by the department, or take action under ORC Chapter 119 to revoke the certificate. If a public agency violates administrative code rules the department cannot revoke the letter they have issued. The available sanctions for the public and private sectors are not equivalent. While there are sanctions of the public agencies allowed by the ORC, to our knowledge none have ever been applied, and none have a serious impact on the agency’s ability to continue to operate.

Both private and public agencies are required to submit corrective action plans when non-compliance with OAC rules is determined. Private agencies that fail to implement, or comply with, the corrective action plans face serious sanctions up to and including the loss of their certificate to operate. Public agencies face no such sanctions. In the absence of meaningful sanctions the department has no way to insure compliance or to prohibit continued non-compliance.

Because the department is unwilling to enforce ORC 5103.02 and 5103.03, which requires the certification of the public children services agencies, we are forced to respectfully request that this committee recommend invalidation of OAC rules 5101:2-5-03, 5101:2-5-13, 5101:2-xx-xx’ 5101:2-xx-xx’ 5101:2-xx-xx, and 5101:2-xx-xx.

In conclusion, OACCA asks this committee to recommendation invalidation of rule:

  • 5101:2-5-09.1 because it exceeds the department’s statutory authority pursuant to ORC Section .
  • 5101:2-7-16 and 5101:2-7-17 because they exceed the legislative intent of HB 332.
  • 5101:2-5-36 because the department has done an incomplete and inaccurate fiscal analysis.
  • 5101:2-5-38 because it violates the department’s statutory authority pursuant to ORC Section 5103.0312.
  • 5101:2-5-03, 5101:2-5-13, 5101:2-xx-xx, et. al. Because they violate the departments statutory authority pursuant to ORC Sections 5103.02 and 5103.03.

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