Public Hearing Testimony

PUBLIC HEARING TESTIMONY OF GEORGE E. BIGGS, MSW, LISW THE OHIO ASSOCIATION OF CHILD CARING AGENCIES NOVEMBER 1, 2001 REGARDING ODJFS PROPOSED HB332 AND HB448 FOSTER CARE RULES

Good afternoon. My name is George Biggs, and I am the Assistant Executive Director of the Ohio Association of Child Caring Agencies. OACCA represents over 90 private and public agencies that provide child welfare, behavioral healthcare, and juvenile justice services to Ohio’s troubled families and children.

Our member agencies are extremely concerned with the proposed rules filed by the Ohio Department of Job and Family Services as a result of HB332 and HB448.

For many years prior to the passage of HB332 OACCA has advocated for the implementation of specific rules relative to the operation of treatment foster homes. We have served on several committees with the department in an attempt to develop these rules with no success. With the passage of HB332 and HB448 last year the department was mandated to develop rules consistent with the provisions of these statutes. The department chose to exclude OACCA, and others effected by these rules, from the rule development process following the passage of the enabling legislation and earlier this year came out with a set of rules for review and comment. As requested, OACCA submitted extensive comments on the initial draft rules. Based upon the rules that were finally filed on September 27, 2001 it appears that the department has completely ignored the comments that OACCA provided on the initial draft.

Governor Taft signed both HB332 and HB448 into law in July 2000. The effective date of HB332 was January 1, 2001. The law required the Department of Job and Family Services to adopt rules within ninety days of its effective date. From the time the law was signed by the Governor until the time rules were to have been adopted, the department effectively had nine months in which to develop and adopt new foster care rules. OACCA volunteered in the fall of 2000 to work with the department in the development of the rules. We were told there was not enough time to involve outside organizations in the development of the rules. The department was, therefore, going to develop them internally. Had OACCA been invited to participate in the development of these rules perhaps we would be able to understand the rationale for some of the provisions. Since we were not included in the rule development process we have significant concerns about many of the requirements that are being proposed.

OACCA recognizes that much of the proposed rule language is directly out of HB332 and HB448, and that the department has no authority to change what is in the law. Further, we recognize that the department has broad statutory authority to develop rules

1 pursuant to ORC Sec. 5103.0316. However, we strongly believe that much of the proposed rule language far exceeds the departments’ already very broad rule making authority. The actions by the department to place more and more onerous regulations on private agencies, that will only serve to increase our per diem rates, while the public agencies are demanding more and more services for less and less cost puts the private agencies in very serious jeopardy.

The following comments apply to Chapter 5101:2-5 of the Ohio Administrative Code.

5101:2-5-02(A) Application for an agency to perform specific functions and 5101:2-5-03(B) Certification of an agency to perform specific functions. Not withstanding the Attorney General’s Opinion 97-035, we strongly believe that the department has exceeded its statutory authority by exempting public children services agencies (PCSAs) from certification to act as a representative of ODJFS in recommending foster homes for certification.

ORC Sec.5103.02 clearly defines 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 Sec. 5103.03 gives the department authority to: “adopt rules as necessary for the adequate and competent management of institutions or associations”.

This section further states that: “When the department of job and family services is satisfied as to the care given such children, and that the requirements of the statutes and rules covering the management of such institutions and associations are being complied with, it shall issue to the institution or association a certificate to that effect. A certificate is valid for two years, unless sooner revoked by the department”.

When these rules were first developed and sent out for review and comment earlier this year the cover letter from then ODJFS Director Romer-Sensky stated: “Another notable change in this rule package is a requirement for Public Children Services Agencies (PCSAs) to be certified to perform all foster care functions. This change is as a result of previous testimony to the Joint Committee on Agency Rule Review (JCARR) from associations representing private agencies that have argued that current law (Ohio Revised Code sections 5103.02 and 5103.03) requires the department to certify PCSAs to perform these functions. Without these provisions in the rules, it is highly unlikely that JCARR will approve the promulgation of the rules needed to implement Sub. HB332 and Sub HB448. This change

2 will not result in a significant change in practice as ODJFS staff currently monitors PCSA foster home records in the same manner as foster home records of private agencies certified by the department. The change will result in PCSAs submitting an application for certification of these functions and ODJFS issuing a certificate to PCSAs signifying an acceptable level of compliance. This is the same type of practice that has been used for many years for the certification of residential facilities operated by PCSAs. A few PCSAs currently contract the operation of their foster home functions to private agencies. These agencies will not be affected by this change”.

While the department has monitored the PCSAs compliance with OAC Chapter 5101:2-5 and 5101:2-7 the department has lacked any meaningful sanctions when noncompliance is found. When a private agency is found to be in noncompliance with applicable OAC rules the department will require the agency to prepare a written corrective action plan, place the agency on a temporary certificate, or take action under ORC Sec. 119. to revoke the agency’s certification to perform a given function. With a PCSA, however, there is no certificate to change to a temporary or to revoke, and the department has no way of even compelling a PCSA to submit a corrective action plan. Thus, the monitored, but non-certified PCSAs are able to provide services below the state minimum requirements for safe operation and to be free from any sanction for noncompliance.

The department recognized earlier this year that its practice of exempting PCSAs from certification for their foster care function is illegal. The law has not changed since this recognition, but the department has put forth rules that continue to be in blatant violation of the law.

At the same time the department is engaging in over-regulation of the private agencies, and holding them accountable to the strictest letter of the law and rule as well as to varying individual interpretations of law and rule. This, coupled with the growing trend of PCSAs refusing to pay private agencies for the actual cost of providing our services by arbitrarily setting their reimbursement rates at or below the private agencies approved IV- E rate, will cause the demise of all private agencies in the not so distant future. While this may be desirable to some it will be disastrous for Ohio’s most vulnerable citizens. Nearly all residential treatment for children in the state of Ohio is provided by private agencies. In addition, the departments’ own data shows that the private sector agencies provide approximately 50% of all foster care and over 70% of foster care for all children over the age of 12 years.

In rule 5101:2-5-02(C) I believe there is a technical conflict with rule 5101:2-5-03(B). Rule 5101:2-5-02(C) states that: “ Any PCSA which intends to operate a residential facility, or independent living arrangement shall file an JFS 01290 with ODJFS to be certified to operate such facility not less than ninety days prior to the intended date of commencing operation”.

3 However, in rule 5101:2-5-03(B) the only three functions a PCSA is required to be certified to perform are (1) to operate children’s residential center(s), (2) to operate group homes(s), and (3) to operate residential parenting facilities. One or the other of these two sections must be changed so that the functions to be certified are clear and consistent in both.

In rule 5101:2-5-03(E) there is a statement that: “Any certificate issued by ODJFS, either required or voluntary, shall not be transferable from one agency, owner, operator, corporation, partnership, or association to another”.

For whom is certification voluntary? Unless there is a voluntary certification process we suggest that the phrase “either required or voluntary” be deleted.

5101:2-5-04 Recertification of an agency to perform specific functions. The new language in paragraph (B) is a requirement of HB448 ORC Sec. 5103.0323. However, in the proposed rule language the department has used the terms “government auditing standards” and “generally accepted government auditing standards”. HB448 defines “government auditing standards”, but there is no mention of “generally accepted government auditing standards”. We request that the department use the correct terminology as stipulated in HB448.

5101:2-5-08(B) PCPA and PNA governance and administration. OACCA members are private 501(c)(3) organizations under the Federal IRS code. These regulations place limits on such organizations regarding how they may spend income they receive. The boards of private agencies are responsible for ensuring that agency personnel are working toward the fulfillment of the agency mission, and that agency resources are used in a responsible manner. If agencies violate these federal regulations their private not-for-profit status is seriously jeopardized.

None of the requirements of paragraph (B) of this rule are in HB332 or HB448. We believe the department is engaging in over-regulation when they mandate a specific minimum number of persons who may serve on a private agency board and when they attempt to limit who may serve on a board based solely on blood or marital relationship.

Many private agencies have married couples on their boards. They have been selected for a variety of reasons such as their particular expertise, their long-standing participation in fundraising activities on behalf of the agency, or their recognized position in the community. Additionally, many agencies have been started by groups of foster parents and they have, and continue to make up the governing board. We recognize that this rule is the result of two particularly bad situations that occurred in 1998. We do not believe that it is necessary to take this extreme action because of the actions of two agencies. Existing rule language clearly speaks to actions agencies must take to prevent conflict of interest situations with respect to members of their boards. Had the department monitored and enforced existing rules in 1998 this would not be an issue today.

4 In (B)(1) & (2) it is not clear what is meant by “the day-to-day management of the agency “ and “have a direct or indirect financial interest in the agency”. Unless the department can be more specific we request that this language be deleted.

There is already a requirement in paragraph (H) of this rule that requires agencies to have policies to guard against potential conflicts of interest. The proposed language in (B)(3) is duplicative.

We request that the department delete all of the proposed language contained in paragraph (B).

OACCA member agencies appreciate the deletion of the word “public” in paragraph (H), and the recognition of the department that private agencies do not receive public funds.

5101:2-5-09.1 Criminal records check required for certain prospective employees and certified foster caregivers. In paragraph (C)(2) the last word “and” prior to the proposed language to be deleted should also be deleted.

Is the requirement in paragraph (K) that an agency shall pay BCII for a criminal record check a IV-E allowable cost? Some agencies are under the impression that it is and others that it is not. Our members would appreciate clarification.

Paragraph (L) allows an agency to charge a fee to a person subject to a criminal records check for the costs incurred in obtaining a criminal records check and that this fee must be limited to the cost the agency must pay to BCII. Many private agencies are beginning to obtain the Web Check system and equipment. This provision prohibits an agency from charging an additional amount in order to recover the cost of their investment in this equipment. We request that this rule be amended to allow certified agencies to charge a fee in addition to the BCII fee to enable them to recover the cost of purchasing this equipment. If an agency charges too high a fee caregivers have the option to seek certification through another agency. The marketplace will thus determine the fee agencies may charge much more effectively than departmental regulation.

Additionally, in paragraph (L), we have concern over the proposed new language at the end of the paragraph that says “or allowed to reside in a foster home.” While ODJFS has the statutory authority to deny or revoke a foster caregiver certificate if an individual subject to a criminal records check shows a positive check or refuses to pay the fee for the records check, or even refuses to be fingerprinted, the department does not have the authority to tell any individual where they may or may not reside. Please clarify this language.

5101:2-5-11(A) Complaint handling Pursuant to language in this rule the department only has authority to investigate complaints of alleged violations of OAC Chapters 5101:2-5 or 2-7 in certified agencies. The unintended consequence of the departments’ illegal exemption of the PCSAs from

5 certification is that, according to this rule, the department has no authority to investigate alleged violations of OAC Chapter 5101:2-5 in the PCSAs. This clearly should not be the intent of the department.

We request that this rule be amended to require PCSAs to be certified to operate their foster care programs and to allow ODJFS to investigate complaints of alleged rule violations in all public and private agencies.

Additionally, we request that language be added to this rule specifying a time frame for the department to complete an investigation. OACCA member agencies have reported many situations to us where the investigations by the department in a private agency have gone on for months and even years. We support the department’s authority to investigate alleged rule violations, but when investigations drag on and on placing, agencies will refuse to place with an agency under investigation until the investigation is completed. Such actions by the department and placing agencies can result in a foster caregiver’s certification or an agency’s certification to operate being effectively suspended or revoked without the caregiver or the agency being afforded any due process rights.

5101:2-5-13 Required agency policies. (A)(7) This rule requires an agency to have a written policy detailing any payments to foster caregivers. It goes on to say, “including reimbursement for transportation and respite care”. We suggest that the sentence end after the word “caregivers”. The rule says “any” payments. It is unnecessary to include examples. The language is very clear, i.e. any payments.

(A)(16) The requirements of this rule pertaining to the provision of respite care are not part of HB332 or HB448. Sub-paragraphs (a)(b)(c) and (g) are excessively proscriptive and over-regulation. The initial paragraph requires an agency to have a “written policy that provides for access to both planned and crisis respite care, the amount to be determined on a case-by-case basis, for children in the program’s care”. Agencies are required to have a policy. The department should hold the agencies accountable for compliance with their own policy. The identified sub-paragraphs are micro-management by the department and should be deleted.

(A)(18) We do not believe the requirement of this rule to conduct an annual evaluation of the specialized foster care program is part of HB332 or HB448. While it is not a bad idea it will be an additional cost to the agencies with no additional reimbursement. Unless the department is willing to fund the cost of conducting these annual evaluations we request that this requirement be deleted.

5101:2-5-17 Discharge summary. (A) Rules are mandates that must be followed by all agencies. When language such as “should be prepared…” is included it is no longer a rule but a suggestion. This language does not belong in a rule. The sentence that includes this suggestion also contains a statement that says the discharge summary “shall be prepared not earlier than thirty days

6 before and not later than thirty days after the date of discharge”, so the time frame agencies have to prepare the discharge summary is clear.

5101:2-5-20 Initial application for child placement. (A) Again, this paragraph exempts PCSAs from certification. They must be included.

(C)(4) We believe the new language that allows an agency to count preplacement training a prospective caregiver may have received within one year prior to the date of the completed application is a good change. Similar language in paragraphs (C)(6), (D), (E) (3), and (G) are good changes as well.

For several years questions have arisen regarding when a homestudy begins and what activities are included in the homestudy process. The proposed language in this rule helps to begin to define this, but still needs some additional clarifications. We would be happy to work with the department in developing additional clarifying language for this rule.

5101:2-5-22 Recommendations for initial foster home certification. Private agencies are having major problems getting foster home certificates back from the department once the JFS 01317 form has been submitted. Our members have reported frequent delays of up to six months. When this happens we are unable to place children in the home because, pursuant to paragraphs (D) and (E), the department determines the effective and expiration dates of the certificate. All the rule requires of the department is that the effective date shall be no earlier than the date the department receives the JFS 01317. Additionally, placing agencies often will not place children with a private agency foster home until we are able to give them a copy of the current foster home certificate. Again, the private agencies are caught between the department and the public agencies.

We suggest that a new paragraph be added to this rule that states “Within 72 clock hours of the receipt of a JFS 01317 ODJFS shall issue a foster home certificate”.

5101:2-5-25 Phase-in period for specialized foster homes; changing the certification of a foster caregiver from one type of foster home to another. This is a very important, but very confusing and complex rule. We believe it needs a lot of clarification in order for agencies to clearly understand its requirements and intent. We would be happy to work with the department in developing these clarifications.

In paragraph (B)(1) we suggest changing the phrase “shall not change” to “shall not be required to change” as is included in paragraph (B)(2). If a caregiver is already in compliance with the new requirements for treatment or medically fragile foster homes or can comply in a shorter period of time why should they be prohibited from doing so?

We believe the second sentence of paragraph (C) is backwards. Why would we place a child assessed to need treatment foster care in a family foster home? We believe this is what this statement allows. It should be just the opposite. That is, a child assessed as needing family foster care could be placed in a specialized home especially with respect

7 to sibling groups. The policy as proposed by the department, will result in an increasing number of placements disrupting because children can be placed in a level of care that does not meet their needs.

(F)(1) Requiring existing, experienced foster parents, who have been providing treatment foster care, to now have to make up preplacement training is punitive, unnecessary, and over-regulation. While we recognize that prior to HB332 there was only one type of foster care, most OACCA member agencies have been doing treatment foster care for many years. We request that a grandfather clause be added that says any foster caregiver who has been recruited and trained by an agency that provides treatment foster care shall be considered to have met all of the initial requirements for such certification and shall be converted to a treatment home upon recommendation of a recommending agency.

5101:2-5-26 Revocation, denial of initial certification or denial of recertification of a foster home certificate. (D)(1) An agency recommending denial or revocation must submit a summary of the grievance meeting held with the caregiver. Paragraph (B)(3) requires the agency to have given to the caregiver the method of and time limits for requesting a local agency grievance meeting. If the agency provides this information to a caregiver and they fail to request a grievance meeting how can agencies submit a summary of the meeting pursuant to paragraph (D)(1)? We request that the phrase “if one was held” be added to the end of paragraph (B)(3).

(E) We request that a time frame be placed on the department within which they must evaluate the evidence and documentation submitted by the agency regarding recommendations for revocation or denial or certification. Many agencies have reported to us that they submit recommendations to the department and will not hear anything for months.

We request that the word “upon” at the beginning of paragraph (E) be deleted and “within 30 calendar days of” be added.

(I) If a foster caregiver certificate is denied or revoked the caregiver is not eligible for licensure or certification for two years from the date of denial or revocation. It would be helpful if the department kept a list or database of this information that agencies could check prior to beginning a home study on an applicant. The rule only prohibits a caregiver from being licensed or certified. It does not prohibit them from applying to another agency for licensure or certification.

(J) The department is required to notify all other departments of state government which license, certify or approve foster homes of the name and address of the caregiver and the date of revocation. We request that this notification be sent to all PCPAs, PNAs, and PCSAs.

8 5101:2-5-31 Sharing or transfer of a foster home. (F) Receiving foster home certificates from the department after an agency has submitted a JFS 01317 is an ongoing problem as noted earlier.

We request that in paragraph (F) the word “following” at the beginning of the paragraph be deleted and the phrase “within 72 clock hours following” be inserted.

5101:2-5-33 Foster caregiver preplacement and continuing training. Most of the language contained in this rule is specific language mandated by HB332. The intent of HB332 was good, and OACCA has been very supportive of changes in the requirements for foster caregiver training. Unfortunately the intent behind HB332 was lost in the actual writing of the legislation. We believe that, as written, HB332 is a bad law and request the department’s assistance in bringing about legislation to effectively and realistically implement true foster care reform.

Having said that, there are specific problems with this particular rule wherein the department has strayed from the actual HB332 language.

(C)(1)(b) This is exact HB332 language. We request assurance from the department that the actual intent of this language, and how the department will monitor for compliance, will be that the caregivers will receive training in the recommending agency’s policies and procedures regarding foster caregivers rather than the polices and procedures of all PCSAs, PCPAs, and PNAs.

(C)(1)(e) HB332 requires foster caregivers to have training in cardiopulmonary resuscitation and first aid, not “an overview of cardiopulmonary resuscitation and first aid. We request that the words “an overview of” be deleted.

(C)(1)(g) We do not object to requiring cultural diversity training for pre-adoptive infant foster caregivers, but HB332 does not require it for these caregivers. Additionally the sub-paragraphs (i) through (viii) are far to proscriptive and over-regulatory. The department has exceeded its specific statutory authority by including cultural diversity training and all of these additional requirements to be included in cultural diversity training.

(C)(3)(b) As in paragraph (C)(1)(b) we request assurance from the department that the actual intent of this language, and how the department will monitor for compliance, will be that the caregivers will receive training in the recommending agency’s policies and procedures regarding foster caregivers rather than the polices and procedures of all PCSAs, PCPAs, and PNAs.

(C)(3)(i) HB332 requires persons seeking certification to operate a family foster home to have training in “cultural issues in placement”. All of the other language in this rule is beyond the mandate of HB332 ORC Sec.5103.029. Our concern with the department’s excessively proscriptive language and over-regulation is that their frame of reference is one specific curricula which has been developed for the public sector agencies and paid

9 for by the department. There are literally hundreds of other curricula available commercially, or developed by and for specific agencies, that are just as good as or better than the department’s curricula. We are required to submit our curricula to the department for approval every two years. Getting this specific, when it is not required by law, is over-regulation, intrusive, and an attempt by the department to make all agencies use the same curricula.

We request that the non-HB332 language in this section be deleted.

(C)(3)(l) Again, as we commented relative to paragraph (C)(1)(e), HB332 requires foster caregivers to have training in cardiopulmonary resuscitation and first aid, not “an overview of cardiopulmonary resuscitation and first aid. We request that the words “an overview of” be deleted.

(C)(4) The requirement for family foster caregivers to have preplacement training to assist adolescents preparing for independent living is not a requirement of HB332. To require it here is another unfunded mandate. If a placing agency wants to contract for this service at an additional cost we will be happy to train caregivers and provide the requested service. In the absence of additional funding and a specific legislative mandate we request that this language be deleted.

(C)(6) The requirement for family foster caregivers to have continuing training to assist adolescents preparing for independent living is not a requirement of HB332. To require it here is another unfunded mandate. If a placing agency wants to contract for this service at an additional cost we will be happy to train caregivers and provide the requested service. In the absence of additional funding and a specific legislative mandate we request that this language be deleted.

(C)(7)(a) and (C)(8)(a) We recognize that this language is specific to HB332. For the record, however, many of our member agencies have specific policies prohibiting the use of physical restraints. Thus, to require us to train caregivers in the appropriate use of physical restraints when our policies prohibit the use of physical restraints seems contradictory.

(C)(8)(b) Again, we recognize that this language is specific to HB332. The requirement for specialized caregivers to be trained as a surrogate parent for educational purposes is sound. However, to require them to have the same training year after year, when the one course that the department of education has available for surrogate parents was never intended to be repeated year after year, is unnecessary. We request assurance from ODJFS that compliance with this rule can be achieved if an agency develops their own continuing training courses around surrogate parenting issues, e.g. IEP development, advocacy within the school environment, etc., without relying on the one course available through the SERC centers each year.

(D) We request that the department define what is meant by “entertainment purposes” regarding video presentations that may not be used in preplacement training or for not

10 more than one-third of the continuing training requirements. We have heard the department’s anecdotal discussions regarding the use of the video Free Willie. We request further clarification regarding what other video presentations the department would oppose.

(E) and (E)(3) We believe these two requirements are at best excessive over-regulation, and at worst conflicting. Nonetheless they are part of HB332, and we request clarification on how we can comply. Paragraph (E) requires an agency to conduct a written needs assessment and continuing training plan for each foster caregiver. The word “each” in this rule clearly means the needs assessment and continuing training plan must be individualized, customized, developed personally by or with each caregiver. Paragraph (E)(3) then says that an agency must require foster caregivers to successfully complete the courses that an agency’s continuing training program must provide. When an agency conducts an individual training needs assessment with their foster caregivers and it shows that the caregivers need training on some specific issues or topics that are not included in the agency’s approved continuing training program will the caregivers be required to complete both? This will result in the individual needs assessment becoming neither individual nor a true needs assessment.

5101:2-5-36 Additional requirements for certification of an agency to act as a representative of ODJFS in recommending treatment foster homes for certification. In the opening paragraph of this rule the statement “or an agency operating a treatment foster care program” is meant to include the PCSAs in the requirements of this rule. This is good. However, a better way to include them is to require them to be certified just like the private agencies.

(A) This paragraph prohibits a child with special or exceptional needs from being placed in any foster home unless that foster home has been certified to operate a treatment foster home. We believe that this paragraph is in direct conflict with rule 5101:2-5-25(C) which states that “a foster child may be placed in a foster home that is certified to provide care at or below the level of care for which the child is assessed. We request that the department clarify these conflicting requirements. It appears from these two rules that either any child may be placed anywhere or no child may be placed anywhere. Which is it?

(C) Is the requirement of an initial service plan to be developed “no later than thirty days after placement” applicable as of the effective date of this rule or beginning twenty-seven months after the effective date of this rule pursuant to paragraph (A)?

(E), (F), (G), (J), and (K) The provisions of these sections for an individual respite care plan for each child, the twenty-four hour availability of a professional treatment staff, the provision of a manual for all foster caregivers, additional documentation requirements of information given to caregivers, and additional staff training are all items involving additional costs to the private agencies. As noted earlier, the PCSAs are refusing to pay private agencies for the actual cost of providing our services by arbitrarily setting their reimbursement rates at or below the private agencies approved IV-E rate. Unless the

11 department is willing to fund the cost of these additional requirements that are not included in the legislative mandates of HB332 and HB448 we request that they be deleted.

(K)(1), (2), (3), and (4) Professionals are already required by the Ohio Counselor and Social Worker Board to have a specific college degree in Social Work or Counseling, pass a test and obtain 15 hours of continuing training each year in order to be licensed to practice in the state of Ohio. ODJFS has NO STATUTORY AUTHORITY to impose additional training requirements on professional social workers who are already regulated by the Ohio Counselor and Social Worker Board.

The argument that Ohio PCSA caseworkers are required to complete 90 hours of training in their first year of employment and thereafter 36 hours annually as a justification for requiring the additional training for professional treatment staff in a private agency is comparing apples to oranges. This amount of training does not equate to having a Bachelor’s or Master’s Degree in Social Work. Since the creation of the Ohio Counselor and Social Worker Board in 1985, private agencies have had to hire degreed and licensed individuals to engage in the practice of Social Work. PCSA caseworkers are exempt from the requirements of the Ohio Counselor and Social Worker Board. Until the passage of HB448 PCSA caseworkers did not have to have a college degree in anything to carry out the duties of their jobs. HB448 now, at least, requires PCSAs to hire individuals who have a bachelor’s degree in “human services-related studies”, however this may be defined. While this was a step in the right direction it is a long way from where it should be.

If the department is compelled to require additional training for professional treatment staff we request that they provide appropriate funding to private agencies to implement this requirement. This is a huge additional cost to the private agencies and, again, will only serve to increase the per diem cost of care. In the absence of additional funding we request that the department delete all of these excessive staff training requirements.

(O) The limitation on the number of treatment foster children who may be placed in a treatment foster home is, again, a huge financial cost to agencies, and will result in a tremendous reduction in available beds for treatment foster children.

For many years foster homes have been allowed to have up to a maximum of five foster children. We have no problem with this maximum. For many years private agencies have been very successfully providing treatment foster care services in the absence of any specific legislation or rules from ODJFS. Many treatment foster caregivers are very adept at providing treatment services for up to five treatment foster children. The key to the private agency’s success in this area has been their commitment to training, which has far exceeded the requirements of ODJFS prior to and subsequent to HB332, and in the support provided to foster caregivers by licensed professional treatment staff.

12 The limitation on the number of treatment foster children allowed in a treatment foster home will result in up to a 60% reduction in the number of available treatment beds and as much as a 60% increase in the per diem costs for the remaining available beds. Private agencies have reduced residential capacity over the years due to changes in state and local polices that have pushed for more and more treatment foster care. As a result, public agencies are sending more and more children out of state as the private agencies have ever increasing waiting lists for residential care. The limitation of only two treatment foster children per treatment foster home will result in more children being placed in very expensive, out-of-state residential facilities.

The action of the department in limiting the number of children that may be placed in a treatment foster home is not part of HB332 or HB448 mandates. It is over-regulation on the part of the department and an infringement on the ability of an agency to manage its programs. We request that this unnecessary requirement be deleted.

(P) and (Q) Is it necessary for the professional treatment staff to have weekly consultation and face-to-face contact at least every two weeks with each treatment foster home and at least one member of each treatment foster care couple or co-parents if there are no children in the home? We request that this be clarified in this rule.

Can the requirements for direct face-to-face contact at least every two weeks with caregivers and children be met on the same visit or is the expectation that these must be two separate visits? We request that this be clarified in this rule.

(R) Please clarify what is meant by the statement that the written record to be kept by foster caregivers shall be “maintained current”. Is this in the subjective judgement of the individual ODJFS licensing specialists, or by agency policy, or what? Are there specific time frames that the department will apply in their monitoring of these records? We request that this either be specified or removed from this rule.

5101:2-5-37 Additional requirements for certification of an agency to act as a representative of ODJFS in recommending medically fragile foster homes for certification. All of our comments on 5101:2-5-36 are equally applicable to this rule.

5101:2-5-38 Payment of foster caregiver training stipends; reimbursement of training allowances to recommending agencies. This rule is a direct result of HB332. Unless there is specific language in this rule clearly specifying that the payments the department is mandated to make as reimbursement to caregivers for attending training and to agencies for the cost of providing the training are retroactive to the effective date of the legislation we believe that the department has violated their statutory authority and the intent of HB332.

HB332 was effective on January 1, 2001. ORC Sec. 5103.0316 mandated that “not later than ninety days after January 1, 2001, the department of job and family services shall adopt rules in accordance with the Chapter 119. of the Revised Code as necessary for the

13 efficient administration of sections 5103.031 to 5103.0316 of the Revised Code”. Not only has the department failed to adopt rules within ninety days as mandated in the law, it is now ten months following the effective date of the statute and the department is just now proposing rules to be adopted for the implementation of the statute. ODJFS representatives have told OACCA member agencies that we must comply with the law effective January 1, 2001, even in the absence of rules specifying how we are to comply. At the same time ODJFS intends to make the requirement on the department to reimburse agencies for stipends paid to caregivers and for the cost to the agencies for providing the training since January 1, 2001, prospective rather than retroactive. This is a clear violation of the legislative intent of HB332 and is another unfunded mandate in that the payment to caregivers for attending pre-placement training is a new requirement for which there will be no reimbursement from January 1, 2001, until the effective date of these rules. With a timely reimbursement, agencies may be able to manage payment for the preplacement training. However, if agencies have been paying stipends to caregivers for attending the pre-placement training since January 1, 2001 and the department intends to reimburse them prospectively this will have a major financial impact on private agencies.

We request that language be added to this rule that clearly states that the department shall make reimbursement to agencies for stipend payments made to caregivers for attending pre-placement and continuing training and to agencies for the cost of providing preplacement and continuing training as of January 1, 2001.

(A)(1) This paragraph mandates that agencies shall make stipend payments to foster caregivers for attending required training events within sixty calendar days of the completion of the training. We request that there must be a comparable requirement or mandate on ODJFS to make timely reimbursements to agencies. Absent this requirement on ODJFS, agencies may be put in serious cash flow situations which will necessitate the development and use of a line of credit the cost of which cannot be included on the IV-E cost report.

(H) This paragraph indicates certain circumstances in which ODJFS shall initiate enforcement proceedings or “otherwise terminate” the recommending agency’s license. We request clarification of what is meant by the words “otherwise terminate”.

5101:2-5-40 Pre-placement and continuing training programs. There are several content issues in this rule that have been addressed in earlier parts of this testimony. In the interest of time, I will only cite the paragraphs here rather than specifying specific objections. Paragraphs (G)(5), (G)(7), (G)(7)(a) through (h), (I)(9), (I)((9)(a) through (h), (I)(12), (I)(13), (J)(13), (K)(4), and (L)(4).

(N) HB332 Sec. 5103.034 clearly requires recommending agencies to make preplacement or continuing training programs available to foster caregivers without regard to the type of recommending agency from which a foster caregiver seeks a recommendation and without charge to the foster caregiver. The last sentence of this section, however, is not included in HB332 language. We do not object to an agency

14 being able to restrict enrollment based solely on numbers of participants a particular training room will accommodate. We do, however, have concerns over the practice of some agencies creating waiting lists for caregivers from agencies other than the specific agency conducting training until they are sure that all of their own foster caregivers who want or need the training have registered. Registration must be on a first come first served basis with a waiting list kept only in case of cancellations after all the slots have been filled. We believe allowing agencies to do otherwise is a violation of the intent of HB332.

The following comments pertain to Chapter 5101:2-7 of the Ohio Administrative Code.

5101:2-7-12 Site and safety requirements for a foster home. (E) Our concern with this paragraph is not so much in the specific language of the rule, but in the department’s recent interpretation of the language regarding the safe storage of items in a family foster home. With the change in 5101:2-5-03(H) prior to HB332 allowing the department to visit and inspect individual family foster homes in the course of a complaint investigation or an agency’s biannual recertification we have received reports from member agencies that individual licensing specialists have cited foster homes out of compliance with this rule because household bleach was sitting out while a caregiver was doing laundry and foster homes were not storing knives and forks, everyday silverware, under lock and key. We object most strenuously to such actions on the part of the department. We do not believe this is or was the intent of this rule and request that the department immediately provide direction to the licensing specialists to cease such over-regulation and individual interpretation of rules.

5101:2-7-16 Additional requirements for a treatment foster caregiver and a treatment foster home. (A) and (B) The requirements for treatment foster caregivers to possess at least a high school diploma or a GED and to have two years of experience as a certified foster caregiver are simply excessive, over-regulatory, and have no evidentiary basis. Such requirements are discriminatory, and culturally and racially insensitive. Private agencies have, with great success, for years recruited and trained excellent treatment foster caregivers who have not possessed any of these arbitrary requirements.

The department’s contention, as stated on April 6, 2001, to over 100 OACCA members and non-members at our April First Friday training event, that caregivers who lack a high school diploma or GED are “doomed to failure” was and is offensive, and demonstrates the department’s total lack of understanding of the field they are attempting to regulate. To compare this requirement to staff in child day care and children’s residential care is, again, comparing apples to oranges.

As stated earlier, private foster care agencies provide approximately 50% of all foster care and over 70% of all foster care for children over 12 years of age. These figures indicate that treatment foster care for the most difficult children, i.e. those over 12 years of age, is provided by-and-large by the private agencies. Most private agencies do not

15 operate family foster care programs. This being the case the only place private agencies will be able to recruit new treatment foster caregivers is from those few private agencies that provide family foster care or from the public children’s services agencies. We do not believe either of these is desirable.

We recognize the department’s authority to regulate agency operations within their statutory authority. However, when the department de facto requires an agency to operate a specific program, i.e. family foster care, we believe they have exceeded their statutory authority.

We request that both of the requirements for treatment foster caregivers to possess a high school diploma or GED and to have two years of experience as a foster caregiver be deleted from this rule.

5101:2-7-17 Additional requirements for a medically fragile foster caregiver and a medically fragile foster home. All of our comments on 5101:2-7-16 are equally applicable to this rule.

I would like to thank the department for this opportunity to provide testimony on the proposed foster care rules. I would also like to assure the department that, as always, OACCA stands ready to participate in the development of fair, realistic, and equitable regulations that will assure the provision of high quality services to Ohio’s families and children.

Thank you.