The Sexist

Adopted Children Left Behind

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Any day now, Jenn Thomas and Kevin Fox’s second adopted child is due to be born. Thomas and Fox are nervous about facing the demands of the new baby—and not just the late-night feedings and soiled diapers.

They’re really freaked out about the paperwork. The last time Thomas and Fox went through the adoption process, they attempted to place the child on the health insurance plan that Fox maintains through D.C. Public Schools. A history teacher at Cardozo Senior High School, Fox figured his excellent coverage would take care of most all the child’s early medical needs.

Instead, it plunged him into a three-year battle against a grumpy D.C. bureaucracy.

Thomas and Fox, both teachers, met in the cafeteria of Cardozo in fall 2001. They married in 2003. On Sept. 4, 2006, Thomas and Fox agreed to adopt a baby boy, Maxwell Fox, and became financially responsible for his life from then on. Max was born at George Washington Hospital the next day.

When Fox submitted the necessary documentation to add Max to the family health insurance plan he held through DCPS, he was told that Max would not be insured as a biological child would. Though a typical child born into a D.C. government family is eligible to be covered by the employee’s health insurance from birth, Fox was told that Max would have to wait for insurance until his parents could produce a “finalization of adoption” decree from the courts—a document that wouldn’t even exist until Max was 18 months old. Until then, Max’s birth costs, hospital fees, immunizations, and pediatric visits would have to be paid out of the family’s pocket.

Adopting Max had not been cheap. Thomas, 45, and Fox, 37, began trying to have children before they married. When Thomas discovered that she had early menopause, she underwent fertility treatments with the help of her sister’s eggs. They lost the baby after five weeks ($20,000). Then, Thomas and Fox registered with a local domestic adoption agency, where they submitted to police background checks, wrote 10-page autobiographies, hosted three home visits with a social worker, baby-proofed their home, planned a fire escape route complete with second-story escape ladder, and prepared a scrap-book of their lives in the hopes that a birth mother would choose them to raise her child ($7,500). When Thomas and Fox agreed to adopt Max, they became financially responsible for both baby and birth mother’s delivery fees. Shortly after Max’s birth, his biological mother realized that she had recently been dropped from her health insurance coverage (another $8,871). The couple was forced to take out a payment plan with their adoption agency to pay off the unexpected costs.

Thomas and Fox had every reason to believe that DCPS benefits would fully deliver on federal requirements. Mark T. McDermott, legislative liaison for the American Academy of Adoption Attorneys, says that federal laws have been in place for years that prohibit health insurance discrimination against adopted children by requiring insurance carriers to insure an adopted child as they would a biological child. According to the Omnibus Reconciliation Act of 1993, benefits must begin at the child’s date of “placement,” with placement defined as the date the child’s adoptive parents become financially responsible for him. McDermott says that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) extended those protections to government employers, who had previously been exempt from the rules. Adoption attorney Peter J. Wiernicki, who worked with Thomas and Fox to finalize Max’s adoption, says that employers that don’t follow the national guidelines are discriminating against adopted kids. “It’s wrong,” says Wiernicki. “Adopted children are no different than biological children.” Max’s health, Fox and Thomas thought, would be covered.

That was before Fox met his peers in D.C.’s human resources departments, a bureaucracy that Fox describes this way: “It’s this big mad web of people not taking ownership of issues and not looking at things analytically,” says Fox. “It’s been a three-and-a-half-year-long emotional and personal drain.” By the time Fox’s dealings with the D.C. government were through, he would still be in the hole for over $3,000 in uninsured medical costs for Max.

A brief history of Fox and Thomas’ dealings with the D.C. government:

• Fox submitted the forms to add Max to the family health insurance in October 2006. In November, Fox received a phone call from a DCPS human resources rep. According to Fox, the rep informed him that Max’s health insurance could not be processed until Max’s adoption was “finalized”—an extended legal process that wouldn’t even begin until Max had lived with his adoptive parents for six months.

• Thomas and Fox repeatedly attempted to convince DCPS HR that federal laws mandated that Max be insured from his date of birth, not the court finalization of his adoption. According to Fox, DCPS HR continued to insist upon the court decree but would not return the family’s request to put the demand in writing.

• Thomas and Fox continued to send e-mails and place phone calls to DCPS HR explaining their position. In early 2007, Fox says that the benefits rep’s voicemail became full and remained unable to receive messages for over two months.

• In March 2007, Fox took a rare day off teaching from Cardozo to track down their benefits rep in person, but was not able to get a face-to-face meeting. “We’re good teachers,” says Thomas, who teaches technology classes at Kingsbury Day School, a special education private school in D.C. “We should be in the classroom, not waiting around at the human resources office for someone to answer our calls.”

• Despite DCPS’ insistence that they must submit the finalization decree before receiving coverage, Fox and Thomas received a surprise insurance card for Max in the mail in March 2007. The enrollment date on the card was listed as March 2007—seven months after Max’s date of birth. All of Max’s health care costs before that date (including the cost of his birth) would not be reimbursed.

• Thomas and Fox continued to place calls to the DCPS human resources department, where they were directed to leave messages at full voicemail boxes.

• In May 2007, Thomas and Fox received an email from Jaininne Edwards, a human resources manager for DCPS. Edwards instructed the parents to “fax a copy of the finalized adoption order” to the office. The document would not be produced by the courts for another 10 months.

• In summer 2007, Thomas and Fox finally heard from some representatives outside of DCPS—including Richard Winston, chief of the benefits division at the D.C. Department of Human Resources (DCHR). Winston informed the couple that the adoption document they submitted with Max’s health insurance forms was “a notarized document from the birth mother,” and was not sufficient to prove Max’s date of placement. Winston required paperwork from “an agency; government entity or legal council which indicates the effective date of placement with your family.” This made no sense to Thomas and Fox, who had never received any documents from Max’s birth mother; all documents they had submitted to DCPS have been directly from the adoption agency. Fox wrote back informing the benefits officer that his letter was inaccurate and confusing, and that the documents he had already submitted should be sufficient. Fox says he never received a response.

• Over the next nine months, Thomas and Fox decided to switch gears and focus on obtaining their adoption finalization decree from the courts. Between their payment plan for the delivery costs, their constant collection notices from their pediatrician, and Max’s day care fees, it took Thomas and Fox several months to save up the funds to finalize the adoption ($1,500). They finally received the
finalization and corrected birth certificate in summer 2008.

• In summer 2008, they submitted Max’s corrected birth certificate in order to reignite the process of correcting Max’s placement date with DCPS and DCHR. The DCPS benefits officer, whose full voicemail box had thwarted Thomas and Fox in 2007 refused to reengage with the family: “I have addressed this issue (several times),” she wrote in an e-mail. “I have no intention of speaking with or communicating with Mr. Fox again regarding this issue. He refuses to accept the answer that he
has been given.”

• In fall 2008, Thomas and Fox began dealing with Valerie Wilkins, a benefits administrator at DCHR. In a long e-mail trail, Wilkins repeatedly informed Thomas and Fox that Max should never have been insured until the family received the finalization decree from the courts. “Adopted children are not treated as

natural children; hence, the need for a separate category,” she wrote. “An adopted child is not recognized as an eligible family member until the process is finalized as substantiated by a court decree.” She added, “You did not submit the decree within the established timeframe for adding a dependent to your coverage.” Max’s doctor’s office, which had been patient with Thomas and Fox as they worked to collect their back payments, was beginning to want its money.

• A year later, on Nov. 12, 2009, Thomas and Fox were finally granted an “evidentiary meeting” with Attorney Advisor Pamela Brown in the Office of the Attorney General for DCHR. In the meeting, Thomas, Fox, and the director of their adoption agency pleaded the case to have Max insured from the day of his birth. Wilkins represented DCHR’s decision to deny Max full health insurance. Wilkins again insisted that adopted children are not to be treated the same as biological children under the law. She informed Thomas and Fox that Max’s insurance enrollment date had been rolled back to Nov. 22, 2006—a seemingly arbitrary date two-and-a-half months after Max’s birth. But Wilkins quickly added that the new start date was an administrative mistake, as no adopted child should be insured before receiving a finalization of adoption decree from the courts. Wilkins then assured Thomas and Fox that their next adopted child would not receive the benefit of that same mistake. After the meeting, Fox and Thomas fought. “I told Kevin point-blank that if we were going to continue to grow our family, he was going to have to leave DCPS,” says Thomas. Thomas knew from experience that bad-mouthing DCPS didn’t sit well with Fox. “The whole process

sometimes drove a wedge between us,” says Fox. “I’m very loyal to my school, to DCPS, and to the city itself. Whenever Jenn would criticize DCPS, I began to take a kind of personal offense, because it is my workplace. It was kind of like, I can talk about them, but you can’t.”

• On Dec. 15, Fox e-mailed Brown asking for an update on Max’s case. Brown told Fox that she hoped to return a decision in the case before Christmas. The family did not hear from Brown for two months.

The decision was urgent—Thomas and Fox were in the midst of adopting a second child, and they had recently been informed that they had been chosen by a birth mother. In mid-December, Thomas and Fox got the call: The baby was coming. They headed to a local hospital, scrubbed up, and stood in the birthing room to observe all the little details of a child’s birth that D.C. human resources had insisted would not be insured. Thomas helped hold the woman’s legs as she delivered the child. She helped to wipe the baby off, watched as the doctor cut the umbilical cord, and held the child in her arms. At the last minute, Thomas and Fox were informed that the mother had chosen to keep her child. They’d have to try again with a new birth mother. Both parents lost over a week of leave from school.

On Feb. 12, Thomas and Fox finally received a decision from DCHR. Although the decision completely

contradicted many of Wilkins’ stated policy positions, it nevertheless sided with the administrators. “DCHR concludes that it was within the purview of DCPS not to enroll your child Maxwell in a health care plan that dates back to the date of your son’s birth,” the letter read. The letter stated that government officials had repeatedly requested that Fox “provide evidence about the date of your son’s adoption, or when your son was placed in your home”—even though Wilkins and others had repeatedly informed Fox that only a final adoption decree from the courts could inspire health insurance coverage. The decision concluded that Fox had “failed to provide the Government with the appropriate documentation within the 60 day special enrollment period,” but that DCPS had nevertheless generously ignored Fox and Thomas’ incompetence. “[W]ithout receiving the necessary information from you, DCPS enrolled Maxwell in a plan in 2006 …within two months of your son’s birth.” (Actually, Nov. 22 fell more than two-and-a-half months after Max was born).

Last month, Fox and Thomas were chosen by another birth mother. The baby is due momentarily. Fox and Thomas are gearing up for another newborn—and renewed dealings with DCHR. “We were just getting over the blues of having the last adoption fall through, and this just seems like further punishment,” says Fox. “It’s especially hurtful because these are my peers. We’re all working together in this crazy city. I teach their children. They manage my accounts.”

Photos by Darrow Montgomery

  • Meegs

    This is infuriating, I feel so bad for them. But one question--if it's a federal law, why couldn't they sue? I mean, the law is the law, correct? The story confuses me, but I can't even believe how horrible it is that these bureaucrat jerks would even have the gumption to tell a parent that their child isn't treated like a "real" child. How awful.

  • Manor

    “It’s this big mad web of people not taking ownership of issues and not looking at things analytically...”

    That basically sums up every aspect of DC governance, Council operations, and anything to do with running this city. Well said, sir.

  • odessea

    Thank you so much for bringing light to this infuriating situation. I hope that this article inspires further media coverage and corrects a situation that never should have occurred in the first place.

  • Jenny

    I wonder if this couple has consulted a lawyer about their situation? Or their City Council rep? Seems like some legal or political pressure could really help their situation.

  • http://www.glaa.org/ Richard J. Rosendall

    What an outrageous situation. Do those bureaucrats have antifreeze in their veins? Well, it will be interesting to see what reaction this story gets from the folks in the John A. Wilson Building. The policy needs to change so that adopted children are treated the same as biological children, the children's insurance made retroactive to their adoption, the couple reimbursed for their expenses, and the procedures brought into line with the realities of how long it takes to get final adoption papers, etc. It would be so refreshing if Hizzoner would get in front of this issue and kick some asses, instead of having his consigliere the AG defend such an indefensible policy.

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  • Julie

    As a friend of the Fox/Thomas clan, I can confirm that they have indeed consulted a lawyer, but now that DCPS HR has handed them an 'official' decision, they must take on further legal fees if they want to take their case to court. The $300/hr (or whatever the going rate is these days) has to be considered as their already long legal battle could become even longer, and with a new baby on the way (and the knowledge that the baby's medical fees won't be covered under the insurance plan), I imagine the financial pressures are becoming increasingly intense. I am hoping this article will generate more media attention and either a reversal of the decision of DCPS HR or offers of pro bono legal help. Thank you, Amanda, for publicizing their story.

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  • james

    I also hope that the article inspires a firm to provide pro bono help. We may be missing some information but the article seems to be fairly comprehensive and Julie's comments add the only info I was wonderng about. I certainly hope Fox/Thomas win out in the end.

  • V

    i really hope this issue can get enough recognition to shame the bureaucracy into re-establishing human decency in the realm of legislation.

  • Megan

    Also a friend of the family here. What is perhaps most frustrating about this is bureaucratic run-around-- something that we ALL experience on some level in our lives. They weren't even given a clear cut refusal to give insurance from birth (even the final decision they received was confusing and inaccurate.)
    It should be simple: the federal law prohibits discrimination (clearly in place here), so DCHR should step up, acknowledge the problem, and train their staff in the basic rights of Americans. I truly shudder to think of how this could have turned out for someone adopting a disabled or very ill newborn.

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