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
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STAFF ANALYSIS OF ASSEMBLY BILL 1133 (Mitchell)
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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
STAFF ANALYSIS OF ASSEMBLY BILL 1133 (Mitchell)
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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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