Foster Care

Presumptive transfer of specialty mental health services for children, youth, and non-minor dependents in foster care

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The California Department of Social Services (CDSS) has issued instructions regarding the implementation of AB 1299 regarding presumptive transfer of specialty mental health services (SMHS) for children, youth, and non-minor dependents in foster care.

In the event that a child, youth, or non-minor dependent is taken into foster care and moved to a different county, the responsibility for arranging and paying for adequate SMHS is transferred to the new county of residence.

For expedited transfers, the county must provide, arrange, and pay for SMHS within forty-eight hours of when the child is placed. If the child is in imminent danger or an emergency psychiatric condition arises, SMHS must be provided immediately without prior authorization. If a child is moved and a Child and Family Team (CFT) cannot meet, the county-placing agency is to alert the Mental Health Plan in the new county of residence to the need to provide, arrange, and pay for SMHS.

For foster children or youths who reside in counties other than the county of original jurisdiction after June 30, 2017, who continue to reside outside of the county of original jurisdiction after December 31, 2017, and/or for whom the responsibility to provide, arrange, and pay for SMHS has not been transferred to the new county of residence, placing agencies must complete all duties to notify conditions of presumptive transfer, waiver requests, and waiver decisions ten days before the child’s next status review after December 31, 2017.

Placing agencies must provide information about presumptive transfer requirements, the exceptions, and the right to request a waiver to: the foster child and their attorney, the agency responsible for making mental health care decisions for the foster child, and the social worker and/or juvenile probation officer. These details should also be added to the child’s case file.

Counties must give fourteen days notice of a child’s out-of-county placement to the child’s parent/legal guardian, the child, and their attorney, unless the child’s safety would be endangered by delay or prior notice. In the event that a child is not receiving SMHS, placing agencies are still required to notify the MHP in the new county of residence.

If a child’s placement status changes and the child is moved back into their original county of residence, the placing agency in the original county must notify the MHP in the former county of residence and the county of original jurisdiction.

CDSS also mandates the creation of a Child and Family Team (CFT), which integrates the child with providers, caregivers, and other support structures. Recent instructions encourage that case planning and the CFT process include MHPs and county placing agencies, especially when the case involves an out of county placement. The county of original residence must continue to collaborate with the county of placement to establish and maintain a single CFT for each child.

The presumption of transfer may be waived on a case by case basis, which places a “hold” on the transfer of responsibility. Exceptions are determined by the placing agency in the county of original jurisdiction in coordination with the CFT. A waiver request must be made within seven  days of the placing agency’s decision to move the child out of their original county of residence. If granted, exceptions mandate that responsibility for providing SMHS remains in the county of original jurisdiction if that county can demonstrate the existence of, or ability to establish within thirty (30) days, a contract with SMHS providers.

A Short-Term Residential Therapeutic Program (STRTP) is a congregate care facility, which includes SMHS services. Placement into a STRTP is considered a temporary exception to presumptive transfer, as it is expected to be last less than six months with the child returning home after treatment.

In the event that a waiver request is denied or otherwise contested, the individual who requested the waiver can request judicial review within seven days of the initial denial of the waiver. The court will then have five days to set a hearing on the matter, and during that time, a hold is placed on the presumptive transfer.

Additionally, children who are covered under the Kinship Guardianship Assistance Program (Kin-GAP) are no longer considered dependents of the court so the county of original jurisdiction retains responsibility for SMHS.

Children whose adoptions are finalized and who receive assistance under the Adoption Assistance Program are also not covered by presumptive transfer. The MHP in the county of residence of the youth’s adoptive parents retain responsibility for authorizing and re-authorizing SMHS.

When a foster child is presumptively transferred, it is not intended that the child be covered by multiple MHP’s. Under certain circumstances, however, counties may simultaneous provide SMHS if, for example, the county of original jurisdiction has an established relationship with the child and will continue paying for MHP during the child’s transition. If the county has an established relationship with the child’s substantial support system, and the providers will continue to be involved in the child’s life after the out-of-county placement, the original county of jurisdiction will continue to arrange and provide for the child’s SMHS.

CDSS does not, in existing presumptive transfer law, distinguish between inpatient and outpatient SMHS. Specific conditions apply to psychiatric inpatient services, depending on the circumstance. Because psychiatric inpatient services are not considered foster care placements, children are to be returned to the county of original residence following inpatient hospital stays.

Responsibility for drug Medi-Cal benefits remains with the county of original jurisdiction, even under conditions of presumptive transfer. Counties are expected to collaborate on the provision of necessary substance use disorder services for foster children placed outside the county of original jurisdiction.  (ACL 18-60, June 22, 2018.)

 

 

Assessing child safety and monitoring of safety plans

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The California Department of Social Services (CDSS) has issued instructions on assessing child safety when determining if a child can be remain safely in their home. In order to ensure consistency across counties, the CDSS has provided information on safety assessments, safety plans, and risk assessments used during worker visits to the home.

During the initial investigation, caseworkers must determine whether or not the child can safely remain in the home or if immediate removal is necessary. Caseworkers must identify any potential safety threats prior to leaving, and report these threats using the Safety Assessment tool within two (2) days of the visit.

If a caseworker assesses that there is reason to know if the child is an Indian child, the caseworker must take into account the tribe’s social and cultural standards and way of life. In accordance with county procedures, caseworkers must also collaborate with the tribe, and may utilize other tribal or Indian community service agencies.

When child safety has been assessed and the child is allowed to remain in the home, caseworkers must work with caregivers to draft a safety plan. The safety plan, which allows the child(ren) to remain in their current placement, lists specific and immediate steps that can be taken to remedy potential hazards, as well as long-term objectives to ensure the child’s health and safety. Safety plans must also specify all of the involved and their roles and responsibilities. Caseworkers are expected to monitor these safety plans over time through consistent visits (both announced and unannounced), as well as ongoing collaboration with involved parties.

In cases involving substance abuse or withdrawal symptoms, the safety plan must satisfy all requirements established by the Child Abuse Prevention and Treatment Act. This includes specific action steps to mitigate safety threats to both the child and the caregiver, which may involve referrals to external services.

Once a safety plan has been drafted, caseworkers must conduct a risk assessment to determine if the child is in danger of future mistreatment. The risk assessment must be completed within thirty (30) days of the initial visit, and may be used when deciding the status of referrals.

Before a case is closed, a caseworker must conduct a risk reassessment, which evaluates the progress of the safety plan. If the risk is reassessed as low, the caseworker must complete a case closing assessment before the case is closed. If the child has the goal to reunite with their original caregiver, the caseworker must assess whether the child should be returned to the caregivers, maintained in their current placement, or have a permanent placement established.

If a caseworker believes the problems to be too severe to remedy or that the child may be in severe or immediate danger, the case worker may instead draft a case plan, which expedites the removal and re-placement process. (ACL 17-107, February 6, 2018.)

Short-term interim funding for emergency caregivers

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CDSS has issued instructions implementing interim funding for caregivers who have taken placement of children or non-minor dependants  on an emergency basis.  This funding is to provide benefits while a Resource Family Approval (RFA) application is pending.  The funding is needed because of a backlog in processing RFA applications.

Counties must provide payments the emergency caregiver equal to the basic level rate paid to resource families.  This funding will remain in effect until June 30, 2018.  Payments are effective the date the emergency caregiver signs the RFA application form.  There will not be payments prior to the date of application.

In the first month the child is eligible for interim funding, CalWORKs payments on behalf of the child do not count as income.  This means that receipt of CalWORKs does not impact the calculation of interim caregiver funding.

If emergency placement funding is required for a family for longer than 60 days, the county must document good cause for the RFA application not being processed , identify a prior backlog of RFA applications and submit a backlog plan.  (ACL 18-33, March 30, 2018.)

Hearing representative responsibilities and privileges process

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The California Department of Social Services (CDSS) has issued clarification about county hearing representative responsibilities before a hearing.  The county hearing representative initially impartially reviews the hearing request.  After the review, the hearings representative either orders the county to take corrective action or defends the action at hearing.  The county hearings representative also provides claimants with information about the hearing process, including preparing a position statement.

The county hearings representative ensues that aid paid pending is paid when appropriate, identifies the issues raised in the hearing request, reviewed the disputed action(s) based on available evidence and regulations, and determines whether the case can be resolved or should proceed to hearing.

The county hearings representative also must provide reasonable accommodations for claimant’s disabilities, and services for limited English proficient claimants, including using forms that have been translated and using an interpreter for communication with the claimant at no cost to the claimant.

If the hearings representative cannot identify the issues from the hearing request, the hearings representative should attempt to contact the claimant to discuss the case.  If the hearings representative cannot reach the claimant, the hearings representative should review the case file for 90 days prior to the hearing request to determine issues.  If the hearings representative still cannot determine the issues, the hearings representative should write a limited position statement for the hearing. If the issues are identified on the day of the hearing and the hearings representative and claimant cannot reach a resolution, the hearings representative can request postponement of the hearing.

If the hearings representative determines the county action is correct, the county hearings representative should contact the claimant to explain the basis for the county action.  The hearings representative cannot imply that the claimant cannot or should not proceed with the hearing.  The hearings representative can explain the claimant’s right to withdraw if the claimant states they do not want to proceed with the hearing, but the county hearings representative cannot request a withdrawal.

If the hearings representative determines the county action is incorrect, the county representative must contact the case worker to take corrective action.  The county hearings representative must also contact the claimant to resolve the case without a hearing.  If that resolution is a conditional withdrawal, the language of the conditional withdrawal must be specific regarding the duties of the county and claimant for the action to be corrected.  A conditional withdrawal that states the county will re-review its action is insufficient. Conditional withdrawals should be in writing.  The county must ensure that corrective action is completed within 30 days.  If the claimant still chooses to attend the hearing, the hearings representative must be prepared for the hearing.

The hearings representative should inform the claimant of their right to review the case file and provide that access in two business days.  If the hearings representative withholds documents from the claimant pursuant to a claim of privilege, the hearings representative must prepare and give to the claimant a form identifying the withheld documents and the basis of the claim of privilege or confidentiality.  Welfare fraud investigation information from an active investigation is confidential unless that information has been used or relied on by the county in making its decision to take administrative action.  When the claimant challenges a county claim of privilege or confidentiality, the administrative law judge will convene an in camera proceeding to adjudicate that claim.

Finally, CDSS has issued guidelines for the content and format of county position statements for hearings.  (ACL 17-102, September 29, 2017.)

State AFDC-FC eligibility for registered non-California guardianship orders

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The California Department of Social Services has issued instructions implementing the court order in Ramirez v. Lightbourne, Sacramento Superior Court No. 34-2015-80002216, regarding eligibility for State AFDC Foster Care (AFDC-FC) benefits for guardians with non-California guardianship orders.  The state AFDC-FC program provides cash aid to non-relative legal guardians.  (See Welf. & Inst. Code § 11405; MPP § 45-203.)  Previously, non-relative guardians with non-California guardianship orders could only be eligible for State AFDC-FC by obtaining a California guardianship order.  Ramirez held that non-relative legal guardians with non-California guardianship orders are eligible for State AFDC-FC if the guardianship order is registered with a California court.

Counties must inform applicants for State Only Foster Care benefits who have a guardianship order issued by another state that they may be eligible for benefits either by registering their non-California guardianship order with a California court or by obtaining a new guardianship order from a California court.  (ACL 17-82, July 27, 2017.)

Resource Family Approval Hearing Procedures

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CDSS has issued instructions about administrative hearings in the Resource Family Approval (RFA) program.  RFA is a unified process for licensing foster family homes, approving relatives and non-relative extended family members as foster care providers, and approving adoptive families.  AB 403 amended Welfare and Institutions Code Section 16519.5 to create a right to a state hearing to appeal a county action denying or rescinding a RFA or criminal records exemption, or CDSS’ action to exclude an individual from a resource family.  A resource family parent, applicant or associated person will have the right to a state hearing to challenge application denial, rescission of approval, exemption denial or approval, or exclusion.  Such a hearing must be requested within 25 days of service of a notice of action, or 30 days if the notice is mailed.

Disputes regarding submission of an alleged severe neglect or child abuse incident to the Child Abuse Central Index are submitted to the county and there is not state hearing jurisdiction for these disputes.  There is also no right to a state hearing regarding decisions to remove or place a foster child and those disputes can be submitted to the county grievance procedure.

Cases where a county denies a relative or non-relative extended family member approval to provide foster care  and approval is requested prior to December 31, 2016 will continue to have the right to a state hearing under the court order in Harris v. California Department of Social Services.

Hearings will occur before either the California Department of Social Services State Hearings Division or the Office of Administrative Hearings.  For a description of the issues that are heard by the California Department of Social Services State Hearings Division or the Office of Administrative Hearings see Resource Family Approval Program Written Directives Version 3 at pp. 79-81.  (ACL 16-110, December 19, 2016.)