BILL ANALYSIS                                                                                                                                                                                                    






                                  SENATE HUMAN
                               SERVICES COMMITTEE
                          Senator Leland Y. Yee, Chair


          BILL NO:       AB 1133                                      
          A
          AUTHOR:        Mitchell                                     
          B
          VERSION:       May 7, 2013
          HEARING DATE:  June 11, 2013                                
          1
          FISCAL:        No                                           
          1
                                                                      
          3
          CONSULTANT:    Mareva Brown                                 
          3

                                        

                                     SUBJECT

                    Foster children: special health care needs

                                     SUMMARY  

          This bill requires that the placement preference for a  
          medically fragile foster child be with a foster parent who  
          is an individual nurse provider and who provides health  
          services under the federal Early and Periodic Screening,  
          Diagnosis and Treatment (EPSDT) program, unless the child  
          has the option of placement with a relative, as specified.

                                     ABSTRACT  

           Existing law:
           
             1)   Establishes within state law a system of care for  
               children who have been removed from their homes and  
               made dependent wards of the juvenile court because the  
               child has suffered, or there is a substantial risk  
               that the child will suffer, serious physical harm  
               inflicted non-accidentally upon the child by the  
               child's parent or guardian, or because the child has  

                                                         Continued---




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               suffered, or there is a substantial risk that the  
               child will suffer, serious physical harm or illness,  
               as a result of the failure or inability of his or her  
               parent or guardian to adequately supervise or protect  
               the child, as defined. (WIC 300 et seq.) 

             2)   Provides for the licensure and regulation of  
               various out-of-home settings for children who need  
               residential care, including establishing licensing  
               standards, and requires that a placing agency consider  
               the individual child's needs, the ability of the  
               facility to meet those needs, the needs of other  
               children in the facility, the licensing requirements  
               of the facility as determined by the licensing agency,  
               and the impact of the placement on the family  
               reunification plan. (HSC 1501.1)

             3)   Defines a "medically fragile child" as having an  
               acute or chronic health problem which requires  
               therapeutic intervention and skilled nursing care  
               during all or part of the day. (HSC 1760.2)

             4)   Establishes in federal law payment for services to  
               patients who are younger than 21 and who qualify for  
               EPSDT services as Medicaid beneficiaries. (42 USC   
               1396d (a)(4)(B). 

             5)   Establishes the role of individual nurse provider  
               as those providers authorized under certain Medicaid  
               home- and community-based waivers and under the  
               Medicaid state plan to provide nursing services to  
               Medi-Cal recipients in the recipients' own homes  
               rather than in institutional settings. (WIC  
               14043.26(m)(3))

             6)   Requires in federal law that for states to receive  
               funding, they must consider giving preference to an  
               adult relative over a non-related caregiver when  
               determining a placement for a child, provided that the  
               relative caregiver meets all relevant state child  
               protection standards. (42 USC  671(a)(19))

             7)   Requires in state law that when a child is removed  
               from the physical custody of his or her parents and  
               made a dependent of the court, that preferential  





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               consideration be given to a request by a relative of  
               the child for placement of the child with the  
               relative, regardless of the relative's immigration  
               status. Existing statute defines what factors should  
               be used to determine if a placement is appropriate.  
               (WIC 361.3. (a))  

             8)   Defines "Preferential consideration" to mean that  
               the relative seeking placement shall be the first  
               placement to be considered and investigated. (WIC  
               361.3 ( c) (1))

             9)   Defines "relative" as an adult who is related to  
               the child by blood, adoption, or affinity within the  
               fifth degree of kinship, including stepparents,  
               stepsiblings, and all relatives whose status is  
               preceded by the words "great," "great-great," or  
               "grand," or the spouse of any of these persons even if  
               the marriage was terminated by death or dissolution.  
               However, statute establishes that only the following  
               relatives shall be given preferential consideration  
               for the placement of the child: an adult who is a  
               grandparent, aunt, uncle, or sibling. (WIC 361.3 (c)  
               (2))

           This bill:
           
             1)   Requires that when determining the placement of a  
               foster child who is medically fragile, preference be  
               given to placement with a foster parent who is an  
               individual nurse provider, and who provides health  
               services under the federal EPSDT program. 

             2)   Defines that this preference be subordinate to the  
               preference granted to a relative of the child. 

             3)   Establishes that a child welfare agency or a  
               juvenile court may place a medically fragile child in  
               a specialized foster care home with appropriate  
               support services if it is deemed to be in the best  
               interest of the child. 

                                  FISCAL IMPACT 

          This bill was not referred to the Assembly Appropriations  





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          Committee.

                            BACKGROUND AND DISCUSSION  

           Purpose of the bill
           
          According to the author, there are growing numbers of  
          medically fragile infants entering the foster care system.  
          Some of these cases are attributable to epidemic drug use  
          by pregnant women, which have resulted in premature births  
          and children with medical and developmental complications,  
          the author states. In other cases, the child may have  
          become medically fragile at the hands of their parents and  
          a return to their biological home is not in the child's  
          best interest.  The author states that the foster care  
          system is heavily burdened with an influx of medically  
          fragile infants and children who need help.  

          Local resources have been, and continue to be, very limited  
          in dealing with the expanding number of these, and other,  
          medically fragile foster children. The author states that  
          these children are harder to place with the average foster  
          parent because of their special needs, and often are  
          identified as having "failure to thrive." They also are  
          recurrent visitors into local hospitals pediatric units or  
          pediatric intensive care units, according to the author.  

           According to the author, creating preferential placement  
          for an individual nurse provider - who is trained to care  
          for complicated pediatric medical cases - results in more  
          positive outcomes for medically fragile children in foster  
          care. The children have consistent medical care, and they  
          benefit from the home environment and the relationship  
          within the foster family, the author states.

           Foster care
           
          Approximately 56,500 children were in foster care as of  
          January 1, 2013, according to data compiled and reported by  
          the Center for Social Services Research at U.C. Berkeley.  
          In California, DSS oversees a county-administered child  
          welfare services system, which responded to approximately  
          40,000 reports of abuse, neglect or exploitation in 2012.  
          According to DSS, nearly one in three foster children lives  
          in Los Angeles County.  The goal of the child welfare  





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          system, when possible, is to reunite the child with the  
          parent by providing training, support and services to the  
          parent. The process requires the courts to facilitate  
          frequent visits between the child and biological parent  
          and, in some cases, permits the parents to retain some  
          decision-making about the child's circumstances. 


           Medically fragile children

           

          According to California statute, "medically fragile" means  
          having an acute or chronic health problem which requires  
          therapeutic intervention and skilled nursing care during  
          all or part of the day. Medically fragile problems include,  
          but are not limited to, HIV disease, severe lung disease  
          requiring oxygen, severe lung disease requiring ventilator  
          or tracheostomy care, complicated spina bifida, heart  
          disease, malignancy, asthmatic exacerbations, cystic  
          fibrosis exacerbations, neuromuscular disease,  
          encephalopathy, and seizure disorders. 

          According to the Department of Health Care Services (DHCS),  
          there are approximately 3,600 children statewide who are  
          designated as medically fragile and receiving private duty  
          nursing services within the EPSDT program. Los Angeles  
          County has approximately 600 children identified as  
          medically fragile at any given time. 


           Placement options for medically fragile children

           In California, there is a critical shortage of foster care  
          placements for children with special health care needs,  
          including, at the higher end of care, medically fragile  
          children. Currently, counties use a variety of options for  
          placing these children. 

          Social workers can place a medically fragile child in the  
          home of a foster parent with specialized training related  
          to the individual needs of the child and provide additional  
          services, as needed. According to DSS, 54 of California's  
          58 counties have created a specialized care supplemental  
          rate for foster homes, including family homes and Foster  





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          Family Agency certified homes. The additional payment to  
          the family home provider is intended to meet the additional  
          daily care costs of a foster child who has a health and/or  
          behavioral problem. There is much greater need for these  
          homes than there are parents able to take these children.

          A second choice is in an intermediate care facility, often  
          for children with Developmental Disabilities. These can  
          range from smaller group homes of six beds to much larger  
          facilities of 100 beds. Social workers have said that these  
          facilities can be difficult to place children into because  
          many facilities now require the child to be assessed and  
          entered into the Regional Center system prior to placement  
          to ensure that there is state funding to support the child.  
          This process can take weeks or months. Anecdotally, social  
          workers who place special needs children say they may leave  
          a child in the hospital for days or weeks longer than they  
          need to while trying to locate an appropriate placement. 

          An emerging third option is the Individual Nurse Provider  
          (INP).
           
          Individual nurse providers
           
          California law defines an Individual Nurse Provider as a  
          nurse who is authorized under certain home- and  
          community-based waivers and under the state plan to provide  
          nursing services to Medi-Cal recipients in the recipients'  
          own homes, rather than in an institutional setting. Neither  
          the DHCS, which approves treatment authorizations for  
          in-home care, nor DSS, which oversees much of the state's  
          home-based social services programs, track the number of  
          INPs as the designation does not require a unique license.

          Although the statute is decades old, it has been largely  
          un-used until recently, when a pediatric ICU nurse founded  
          "Angels in Waiting," a non-profit organization dedicated to  
          recruiting pediatric specialty nurses to become foster  
          parents. By billing for nursing services through the  
          state's children's Medi-Cal EPSDT program at $31.94 per  
          hour per child for direct individual care, as well as  
          receiving a foster care rate per child, the nurse/parents  
          are able to stop working to care full-time for fragile  
          children in their own homes. 






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          Typical placements are two to six children in a home. The  
          program's founder, and this bill's sponsor, said the goal  
          is to recruit nurse/parents in every county in California.  
          Currently, the program has about 50 nurse / foster parents,  
          most of them in Southern California. About 20 percent of  
          nurses in the program have met the children they are  
          fostering while working at a children's hospital. Many of  
          those children were placed using the non-related extended  
          family member (NREFM) criteria, as the nurses had cared for  
          and bonded with the fragile infants in the intensive care  
          unit prior to bringing them home. California law defines a  
          NREFM as a person with an established familial or mentoring  
          relationship with a child, and can be considered an  
          individual with whom a child or youth under temporary  
          custody or a dependent or ward of the court may be placed. 

          Nurse / foster parents who do not have an established  
          relationship with the child must obtain a foster care  
          license or certification prior to having a child placed  
          with them.

           EPSDT
           
          Federal law - including statutes, regulations, and  
          guidelines - requires that Medicaid cover a very  
          comprehensive set of benefits and services for children,  
          different from adult benefits. Since one in three U.S.  
          children under age six is eligible for Medicaid, EPSDT  
          offers a critical way to ensure that young children receive  
          appropriate health, mental health, and developmental  
          services.<1>

          In addition to the standard Medi-Cal benefits that other  
          qualifying beneficiaries receive, an EPSDT patient under  
          age 21 may receive additional medically necessary services,  
          typically for a recognized mental disorder or a  
          developmental disability where interventions have been  
          identified that are likely to help the child to progress  
          developmentally as appropriate. Children with special  
          medical needs also would fall into the EPSDT category. 

                                     COMMENTS

           Federal and state laws have given considerable attention to  
          -------------------------
          <1> http://mchb.hrsa.gov/epsdt/overview.html




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          the question of how social workers must determine a  
          placement that is in a child's best interest. Ultimately  
          lawmakers and the courts have returned to the tenet that a  
          social worker should be left the discretion to choose where  
          a foster child will be placed based on the unique  
          circumstances of the child and the placement that would be  
          in that child's best interest. 

          California law currently permits preferential consideration  
          for foster care placement only for a small segment of  
          relatives of a child: an adult who is a grandparent, aunt,  
          uncle, or sibling. (WIC 361.3(c)(2)) This bill would create  
          as a second category of preference Individual Nurse  
          Providers who they are caring for medically fragile  
          children through the EPSDT program. 

          One concern in doing this is that in areas where there are  
          few INPs (including Los Angeles, currently), this could  
          result in social workers placing children out-of-county  
          during the time they are participating in reunification  
          services with their biological parents. Various state  
          statutes address the issue of placement in proximity to  
          family members. WIC 361.2 (g)(4) requires that children  
          participating in reunification be placed in the same county  
          as their parents or guardians. In such circumstances where  
          there are no in-county options available, current law  
          requires social workers to document reasons for placing a  
          child so far away. WIC 16501.1(c) requires that "the  
          decision regarding choice of placement shall be based upon  
          selection of a safe setting that is the least restrictive  
          or most family like and the most appropriate setting that  
          is available and in close proximity to the parent's home,  
          proximity to the child's school, and consistent with the  
          selection of the environment best suited to meet the  
          child's special needs and best interests."

          By creating an explicit preferential placement, this bill  
          could have the practical result of eliminating a social  
          worker's discretion to balance other needs of the child,  
          including proximity to relatives during reunification.  
          Additionally, creating a preference for INPs elevates the  
          nurse provider's placement above other relatives or  
          non-related family members. 

          Staff recommends that the language of this bill be amended  





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          to add intent language and to require that placement with  
          the nurse providers has similar priority placement  
          consideration as other family members and NREFMS, as  
          follows:

             -    SECTION 1.


             The Legislature finds and declares that 


               1.     There are growing numbers of medically fragile  
                 infants entering the foster care system. 


               2.     Local resources have been, and continue to be,  
                 strained to the limit in dealing with the expanding  
                 number of these and other medically fragile foster  
                 children.


               3.     The children are harder to place with the  
                 average foster parent because of their special  
                 needs, and they become the forgotten members of our  
                 society.


               4.     Partnering trained nurses as foster parents for  
                 medically fragile babies and children results in  
                 more positive outcomes for these placements. The  
                 children have consistent medical care  and they  
                 benefit from the home environment and the  
                 relationship within the foster family.


              -    SECTION  1.   2  

             -    Section 17739 is added to the Welfare and  
               Institutions Code, to read:


             -    17739.

             -     (a) When determining the placement of a foster  
               child who is medically fragile, as defined in  





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               subdivision (b) of Section 1760.2 of the Health and  
               Safety Code,  preference   priority consideration  shall  
               be given to placement with a foster parent who is an  
               individual nurse provider, as defined in subdivision  
               (m) of Section 14043.26 of the Welfare and  
               Institutions Code, who provides health services under  
               the federal Early and Periodic Screening, Diagnosis  
               and Treatment program (Section 1396d(a)(4)(B) of Title  
               42 of the United States Code). 

             -    (b) The  preference   priority consideration  described  
               in subdivision (a) shall be subordinate to the  
               preference granted to a relative of the child under  
               Section 361.3, in accordance with Section 671(a)(19)  
               of Title 42 of the United States Code.

             -    (c) This section does not prohibit a child welfare  
               agency or the juvenile court from placing a medically  
               fragile foster child in a specialized foster care home  
               with appropriate support services  or other appropriate  
               placement  if it is deemed to be in the best interest  
               of the child.  



                                  PRIOR VOTES  

          Assembly Floor                74 - 0
          Assembly Human Services Committee  5 - 0


                                    POSITIONS  

          Support:       Angels In Waiting (sponsor)
                         The ARC and United Cerebral Palsy in  
          California
                         California Black Health Network
                         California State PTA
                         Children Now                       and The  
          Children's Partnership                            
                         National Association of Social Workers,  
                    California Chapter
                         Special Discoveries Educational Services,  
                    Inc.
                         The Children's Partnership





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          Oppose:   None received






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