Public Benefits for Youth in Juvenile Justice

Pacific Juvenile Defender CenterJuvenile Delinquency Roundtable

November 6, 2010

Hypo 1

• Alex Smith is a 17.9 year old child with a mental health history who is currently confined in juvenile hall on a placement order. Because of his age, Alex is unlikely to be placed by Probation absent a caregiver who is willing to take him. His godmother, Edna, has talked to Probation about having Alex placed with her, but she is concerned that there are not sufficient mental health services for him in the community. She also worries about who will pay for his treatment if he comes to live with her.

Program Overview

• Medi-Cal• Foster Care – AFDC-FC• CalWORKS (TANF)• Kin-GAP (Kinship Guardianship Assistance)• AAP• SSI• Education and Special Education

Preliminary Issues

Why is this so complicated?

• The rules don’t make sense

• Relatives are different – sometimes

• Different funding sources mean different rules

• Incomplete information – people who should talk to each other do not always talk at all.

Probation Supervised Foster Care

• 41 USC §672(c)(2)

• ACF Child Welfare Policy Manual 8.3A.1, 8.3A.8a (Question 3)

• WIC §11401(b)(2) (AFDC-FC)

• WIC §§727.1 – 727.31

Foster Care Placements WIC §11402

• Relative Care (and NREFMs)

• Non-related legal guardian

• Foster Family

• Foster Family Agency

• Group Home

• Community Treatment Facility

Medi-Cal

Medi-Cal Eligibility

• Categorical – Foster care (AFDC-FC)

– Transitional foster care (FFCC)

– SSI

– CalWORKS

– Refugee

• Income: – FPL Programs for Children

Medi-Cal - EPSDT

Early and

Periodic

Screening,

Diagnosis, and

Treatment

Medi-Cal - EPSDT

• Screening– Physical– Developmental– Vision– Hearing – Dental

Medi-Cal - EPSDT

Diagnostic and treatment services necessary to correct or ameliorate defects or physical or mental illnesses or conditions

Medi-Cal - EPSDT

• Targeted Case Management

• Therapeutic Behavioral Services (TBS)

• Rehabilitation Services

• Related services, such as transportation

Medi-Cal for Former Foster Care Children (FFCC)

• To age 21

• In foster care on the 18th birthday

• 42 U.S.C. §§1396a(a)(10)(A)(ii)(XVII) & 1396d(w)(1).

• WIC §14005.28; ACWDL 00-41, 00-61, 01-41.

• Health Care Reform: 2014 to age 26

Inmate Payment Exclusion

• No FFP for services provided to individuals who are inmates of a public institution.

• Affects FFP, not eligibility.

Inmate Payment Exclusion

• “Inmate” and “public institution” have specific definitions.

• Eligibility vs. coverage

• Suspension vs. termination issue

Inmate Payment Exclusion: Federal Law

• 42 USC §1396d(a)(27)(A)

• 42 CFR §§435.1009 -1010

• HCFA and CMS Guidance and letters

Inmate Payment Exclusion: State Law

• WIC §§, 11016, 14011.10, 14029.5, &14053

• 22 CCR § 50273

• Medi-Cal Eligibility Procedures Manual, Article 6

Inmate Payment Exclusion: Medi-Cal Policy

• Ends on the day inmate status ends

• CMS 1997 Letter:– Suspension of coverage not termination of

eligibility– Obligation to provide immediate coverage

Inmate Payment Exclusion:State Developments

• SB 1469

• MOU with CDCR – ACWDL 09-16

• SB 1147

• San Francisco and Santa Clara v. Department of Health Care Services

Inmate Payment Exclusion: State Law

• ACWDL 07-34 -- SB 1469 Implementation

• ACWDL 08-36 -- SB 1469 Contacts

• ACWDL 09-10 -- SB 1469 Contacts

• ACWDL 09-16 -- MOU with CDCR

• ACWDL 10-06 -- SB 1147 Implementation

Hypo Questions

• If Alex stays in juvenile hall until 18, will he be eligible for extended FFCC MediCal when he is released?

• If Alex is placed with his godmother by Probation, what types of services can be put in place to keep him in the community? – Will Alex have MediCal to cover those services if he is

placed with his godmother? – Will Alex have MediCal to cover those services if he is

released to his godmother?

Foster Care: AFDC-FC

Hypo 2

• Alex has been placed with his godmother, Edna. Edna’s grandson, Mark Sanchez, is also a 602 and is placed with Edna one week later. Mark has been diagnosed with borderline intellectual functioning and depression. Edna is on a fixed income and is struggling financially to care for these children. If she does not receive assistance, the children may lose this placement.

Who is a relative?An adult related to the child by blood, adoption, or marriage within the fifth degree of kinship. Includes:

• Aunts and Uncles (great, great-great)

• First cousins

• First cousins once-removed

• Nieces and nephews

• Spouse of any relative on list (even if relative is divorced or deceased)

• Mother

• Father

• Stepparents

• Siblings

• Step-Siblings

• Grandparents (great, great-great, great-great- great)

Everyone else is a non-relative!

Aid to Families with Dependent Aid to Families with Dependent Children-Foster Care (AFDC-FC)Children-Foster Care (AFDC-FC)

• Title IV-E of the Social Security Act– 42 U.S.C. § 670 et seq.

– 45 C.F.R. § 1356 et seq.

• Cal. Welf. and Inst. Code § 11400 et seq.• California’s Manual of Policy and Procedure

(MPP) § 45-200 et seq.

AFDC-FC: Basic Eligibility

Removed From Home: • Removed by court

• Required findings – remaining in the home would be contrary to the

child’s welfare

– reasonable efforts were made to avoid removal

AFDC-FC: Basic Eligibility

• Relinquished for adoption or parental rights terminated

• Voluntarily placed by parent or guardian

• Living with non-related legal guardian, OR

• In foster care under the Indian Child Welfare Act

AFDC-FC: Basic Eligibility

Placement: • Licensed foster family home, group home,

or foster family agency

• Approved home of a relative or non-relative extended family member

• Home of a non-related legal guardian

Federal AFDC-FC: Linkage Requirement

Meet the 1996 AFDC criteria in the home of removal

– in the month the petition is filedOR

– in any of the 6 months prior to the month the petition is filed.

AFDC-FC: What Do They Get?

• Monthly cash benefit

• Medi-Cal

• Other, such as clothing allowance

AFDC-FC: Cash Benefit• Foster Family Homes:

– Basic rate: $446 - $659– Specialized Care Increments: $18 - $1413

• Foster Family Agencies: – Non-Treatment: $ 373 - $522– Treatment: $1430 - $1679

• Intensive Treatment:– $2687 - $ 4028

• Group Homes: $2118- $8974

Rates Are Per Child!

AFDC-FC Out of County Youth

• When a child is placed in a county different from the county with payment responsibility:– the county pays the host county basic rate and the host

county specialized care rate• If the host county has no specialized care rate, then the county

pays its own specialized care rate.

• When a child is placed out of state, the Interstate Compact on the Placement of Children applies.– The sending agency continues to have financial

responsibility for the child.

AFDC-FC: Regional Center Clients

• Receive AFDC-FC benefits, and • Regional Center clients • Eligibility for regional center services:

– Mental retardation, cerebral palsy, epilepsy, autism, and the “5th Category”

AFDC-FC: Regional Center Clients

• Standard rates July 1, 2007

• Current placements grandfathered

• Lower rates raised to July 1, 2007 level

• Vendored providers get DDS rates

AFDC-FC: Regional Center Clients

• Regional Center: $2006 per month

• Regional Center, Extraordinary care and supervision: $1000 county discretion (ACL 08-54)

• Regional Centers must purchase or secure services in the child’s IPP or IFSP

AFDC-FC (Federal or State): When Does It End?

Age 18 OR

Age 19 IF: • In foster care AND • Full time high school or equivalent training,

or pursuing high school equivalency AND • Reasonably expected to graduate, complete

the program or receive a high school equivalency certificate, before his or her 19th birthday.

AFDC-FC (Federal or State): When Does It End?

• Leonard v Wagner

• Fostering Connections

• AB 12

Hypo Questions

• What benefits are Alex eligible for?– What other information do you need?– What needs to happen so that Alex can receive these

benefits?

• What benefits are Mark eligible for? What other information do you need?What needs to happen so that Mark can receive these benefits?

Temporary Assistance for Needy Temporary Assistance for Needy Families (TANF) & Families (TANF) &

California Work Opportunity and California Work Opportunity and Responsibility to Kids (CalWORKs)Responsibility to Kids (CalWORKs)

• “Title IV-A”: Title 42 of the Social Security Act, Chapter 7, Subchapter IV, Part A

• 42 U.S.C. § 601 et seq. • 45 C.F.R. § 260 et seq.• Calf. Welf. and Inst. Code § 11200 et seq.• California’s Manual of Policy and

Procedure (MPP) § 45-200 et seq.

CalWORKs: Who Gets It?

Children living with relatives:

• Not in foster care – informal care

• In foster care but do not qualify for federal Title IV-E foster care benefits

CalWORKs: Who Gets It?

Needy caretaker relatives when the child receives:

• CalWORKs• AFDC-FC• Kin-GAP, or • SSI

CalWORKs: What Do they Get?

Payment Decreases Per Child!

REGION 2  

AU Size MAP Exempt MAP Non-Exempt

1 363 326

2 598 533

3 740 661

4 879 788

5 1003 897

6 1125 1007

7 1236 1104

8 1347 1205

9 1457 1302

10 1564 1398

10+ 1564 1398

REGION 1  

AU Size MAP Exempt MAP Non-Exempt

1 382 345

2 627 561

3 776 694

4 923 828

5 1050 941

6 1180 1057

7 1296 1162

8 1414 1265

9 1527 1367

10 1641 1469

10+ 1641 1469

CalWORKs: When Does It End?

Age 18 OR

Age 19 IF: • Reside with the relative caregiver

AND • Full time high school or equivalent training, OR pursuing a high school equivalency certificate

AND• Reasonably expected to graduate, complete the program or receive a high school equivalency certificate, before his or her 19th birthday

CalWORKs: When Does It End?

• Fry v Saenz

• Youth with disabilities have no completion requirement

Hypo

• Are Alex and Mark eligible for CalWORKs? – What other information do you need? – What is the best possible benefit available to Alex thus

far? Mark?

Supplemental Security Income/ State Supplemental Payment

(SSI/SSP)• Title 42 of the Social Security Act, Chapter 7,

Subchapter XVI• 42 U.S.C. § 1381 et seq.• 20 CFR § 416 et seq.• “Foster Care Social Security and Supplemental Security

Income Program,” Calif. Welf. and Inst. Code § 13750 et seq.

• “State Supplementary Program for the Aged, Blind, and Disabled,” Calif. Welf and Inst. Code § 12000 et seq.

SSI/SSP: Basic Eligibility

Children may be eligible for SSI/SSP benefits if they meet the following criteria:• Income and resources

– No deeming if the child is living apart from parents

• Citizen or certain categories of immigrant

• Disability

SSI/SSP: Basic Eligibility

Disability:

Marked or severe functional limitation expected to result in death or last for at least 12 continuous months

SSI/SSP: What Do They Get?

• Disabled child - $739.00– November 1 - $737.40

• In foster care – non-medical out-of-home care facility: $1086

– Must complete the SSP 22 to get the full benefit!

SSI/SSP: When Does it End?

• Continues as long as disability, income and resources criteria are met

• Different disability standard for adults

– Continuing Disability Review (“CDR”) to determine if the youth meets adult disability criteria

– Benefits continue until CDR is complete

Kinship Guardianship Assistance Payment Program (Kin-GAP)

• Designed to help children placed with relatives leave foster care without losing foster care payments.

• Welf. & Inst. Code § 11360 et seq.

• MPP § 90-100 et seq.

Kin-GAP: Basic Eligibility

• Under 18 (or 19) years old• Dependent or ward • Citizen, legal permanent resident, or qualified

immigrant• Living with same relative at least 12 continuous

months• Guardian appointed by juvenile court• Foster care case dismissed by the court after (or

at the same time as) the court appoints the relative as guardian

Kin-GAP: January 1, 2011

• Living with same relative at least 6 continuous months

• Negotiated Agreement

• Travels out of state

• Extends benefits until age 21 if mental or physical handicap

Kin-GAP: What Do They Get?

• Basic AFDC-FC rate – at time of guardianship

• Specialized Care Increment – at time of guardianship

• Clothing Allowance

Kin-GAP: When Does It End?

Age 18 OR

Age 19 IF: • Reside with guardian

AND• Full time high school or equivalent training,

OR pursuing high school equivalency AND

• Reasonably expected to complete the program or receive high school equivalency before his or her 19th birthday.

Kin-GAP Issues

• Juvenile court guardianships in delinquency

• Juvenile hall detention after guardianship

Hypo Questions

• What is the best likely benefit for Alex? – What would make Alex eligible for this benefit

based on what you know?

• What is the best likely benefit for Mark?– What would make Mark eligible for this benefit

based on what you know?

Adoption Assistance Program (AAP)

• Title IV-E of the Social Security Act– 42 U.S.C. § 673 – 45 C.F.R. § 1356 et seq.

• Cal. Welf. and Inst. Code § 16115 et seq.– California Code of Regulations, Title 22 § 35325 et

seq.

AAP: Basic Eligibility

• “Special needs”

AND

• Written and signed AAP agreement with state stipulating amount of AAP (No means test)

AAP: Basic Eligibility Con’t

AND one of the following:

• Meets SSI disability criteria – OR • Under supervision of county welfare department – OR • Relinquished for adoption and would have been at risk of

dependency – OR • Committed to care of dep’t pursuant to Family Code §

8805 or § 8918

AAP: What Do They Get?

• Medicaid

• Monthly benefit– Amount negotiated in a written adoption assistance

agreement– Cannot exceed the amount that the child would have

received if in a licensed or approved family home– Can include specialized care increment– No means test for parents

• Residential Care or Wrap Around services

AAP Out of County Youth

• If the child is placed for adoption outside of the county of financial responsibility, then the AAP can be negotiated up to, but not to exceed, the basic rate + specialized care increment of the host county OR the county of financial responsibility – whichever is higher.

AAP: When Does it End?

• Age 18• Age 21 - if the child has mental or physical

handicaps that warrant continuation• Continues if the family moves to another state • Can continue if child is adopted after death of

adoptive parents

Hypo Questions

• Can Edna receive AAP benefits for Alex? For Mark? – What information do you need to determine

eligibility?

SSI: Mandates for Youth Preparing to Transition

• AB 1331 (October 11, 2007)

• Goal: SSI in place at emancipation

• Best Practice Guidelines instruct counties on screening and applications. ACL 07-10

SSI: Mandates for Youth Preparing to Transition

Counties must:

• Screen every youth in foster care for SSI eligibility between ages 16.5 and 17.

• Assist youth determined likely eligible with SSI application.

• When necessary, forego federal foster care benefits for one month

SSI for Detained Youth

• Suspended if incarcerated the entire month. 20 CFR §416.211

• Terminated after 12 months

• Watch the clock!

Amount of Assistance

Court Special needs Other services

AFDC-FC $446 - $659 Yes, 6 month reviews.

Specialized care increments

ILP, clothing allowance, reunification services, Medi-Cal, transitional housing

CalWORKs $382 for first child, less with each child

No No specialized rates

Medi-Cal

Kin-GAP 100% of what child received in foster care

No – dependency dismissed

Yes, if received in foster care

ILP, clothing allowance, Medi-Cal

AAP Negotiated – cannot exceed foster care

No Yes – specialized rates available

Medi-Cal

SSI $1,086 for children with relatives

No No Medi-Cal

Resource: The Foster Care Manual

• Available on www.wclp.org• Ten chapters, from an overview of the foster care

system to the state hearings process• For legal advocates and caregivers • Includes numerous advocacy and resource tips and

examples• Appendices includes statewide legal resources and

common acronyms

Education

AB 490• Applies to children in the foster care system and often

to children in the deliquency system

• Parent retains education rights of youth unless the Court explicitly limits those rights – in which case the Court must appoint an advocate

• Priority on school stability and the “best interest of the child.”

• Youth must be immediately enrolled in school – even if all typically required documents are unavailable.

• Each Local Educational Agency must designate a staff person as a foster care education liaison.

• Partial credits must be awarded.

Special Education• Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794, 34 C.F.R. §§ 104 et seq. • Individuals with Disabilities Education Act

(IDEA), 20 U.S.C. §§ 1400 et seq., 34 C.F.R. Part 300

• Titles II and III of the Americans with Disabilities Act (ADA) 42 U.S.C. §§ 12131-12134; 12181-12189.

• California Education Code §§ 56000 et seq., California Code of Regulations, Title V, §§ 3000 et seq.

• Various Sections of the California Government Code and California Welfare & Institutions Code

Special Education

• Eligible disability

• Need special education to benefit from their education

• Free and appropriate public education (FAPE)

• Individualized education plan (IEP)

IEP & Related Services

• Speech and language therapy

• Transportation

• Mental health therapy (AB 3632)

• Occupational therapy

• Physical therapy

• Behavioral intervention plan

• * Transition Plans *

Special Education Resources

• Disability Rights California• http://www.disabilityrightsca.org/issues/specialeducation_pubs.html

• DREDF: Disability Rights and Education Fund

• http://www.dredf.org/special_education/dueprocess.pdf

Special Education Issues

• Screen youth for eligibility

• Participation of parents or education decision maker

• Must provide services in juvenile hall, ranch or camp

• Must implement current IEP

Advocacy

• Don’t take no for an answer

• This is complicated: staff can (do) make mistakes

• Joinder

• Administrative appeal: fair hearings, due process

• Legal Services advocates

Further InformationAngie Schwartz

The Alliance for Children’s Rights500 Washington Street

San Francisco, CA 94111(415) 568-9803

a.schwartz@kids-alliance.org

Alice BussiereYouth Law Center

200 Pine Street, Suite 300San Francisco, CA 94104

415-543-3379 x 3903abussiere@ylc.org

Brian BlalockBay Area Legal Aid1735 Telegraph Ave.Oakland, CA 94612

(510) 250-5201bblalock@baylegal.org