BILL ANALYSIS Ó 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--- STAFF ANALYSIS OF ASSEMBLY BILL 1133 (Mitchell) PageB 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 STAFF ANALYSIS OF ASSEMBLY BILL 1133 (Mitchell) PageC 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 STAFF ANALYSIS OF ASSEMBLY BILL 1133 (Mitchell) PageD 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 STAFF ANALYSIS OF ASSEMBLY BILL 1133 (Mitchell) PageE 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 STAFF ANALYSIS OF ASSEMBLY BILL 1133 (Mitchell) PageF 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. STAFF ANALYSIS OF ASSEMBLY BILL 1133 (Mitchell) PageG 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 STAFF ANALYSIS OF ASSEMBLY BILL 1133 (Mitchell) PageH 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 STAFF ANALYSIS OF ASSEMBLY BILL 1133 (Mitchell) PageI 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. - SECTION1.2 - 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 STAFF ANALYSIS OF ASSEMBLY BILL 1133 (Mitchell) PageJ subdivision (b) of Section 1760.2 of the Health and Safety Code,preferencepriority 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) Thepreferencepriority 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 STAFF ANALYSIS OF ASSEMBLY BILL 1133 (Mitchell) PageK Oppose: None received -- END --