Public Benefits for Youth in
Juvenile Justice
Pacific Juvenile Defender Center
Juvenile 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:
•
•
•
•
•
•
Mother
Father
Stepparents
Siblings
Step-Siblings
Grandparents (great,
great-great, great-greatgreat)
• Aunts and Uncles (great,
great-great)
• First cousins
• First cousins onceremoved
• Nieces and nephews
• Spouse of any relative on
list (even if relative is
divorced or deceased)
Everyone else is a non-relative!
Aid to Families with Dependent
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 filed
OR
– 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 0854)
• 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
Families (TANF) &
California Work Opportunity and
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?
REGION 1
REGION 2
AU Size
MAP Exempt
MAP NonExempt
AU Size
MAP Exempt
MAP NonExempt
1
382
345
1
363
326
2
627
561
2
598
533
3
776
694
3
740
661
4
923
828
4
879
788
5
1050
941
5
1003
897
6
1180
1057
6
1125
1007
7
1296
1162
7
1236
1104
8
1414
1265
8
1347
1205
9
1527
1367
9
1457
1302
10
1641
1469
10
1564
1398
10+
1641
1469
10+
1564
1398
Payment Decreases Per Child!
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 ILP, clothing
increments
allowance,
reunification
services, MediCal, 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 –
Medi-Cal
specialized rates
available
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; 1218112189.
• 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 Information
Alice Bussiere
Youth Law Center
200 Pine Street, Suite 300
San Francisco, CA 94104
415-543-3379 x 3903
abussiere@ylc.org
Angie Schwartz
The Alliance for Children’s Rights
500 Washington Street
San Francisco, CA 94111
(415) 568-9803
a.schwartz@kids-alliance.org
Brian Blalock
Bay Area Legal Aid
1735 Telegraph Ave.
Oakland, CA 94612
(510) 250-5201
bblalock@baylegal.org