There are thousands of children in the commonwealth being raised by grandparents or other family members---while they are stepping up to care for these children—many of them say, the state is falling short in providing the resources they need to be successful in caring for them. In a three part series we explore the topic of kinship care in Kentucky.
It all began with a ruling from a federal judge saying Kentucky must provide payments to kinship caregivers--it's now referred to as DO v Glisson. But, as thousands of families are coming to find out, it's only to those who meet certain conditions.
“These payments must be made if certain conditions are met. The conditions would be they were neglected or abused at home—and judicial finding of that neglect or abuse. The court removes the children from the home by judicial decision. The cabinet approves the placement, so the cabinet will approve a relative. They’ll do a background check, always a criminal background check, a home evaluation and a global assessment of the relative to make sure it’s a safe appropriate placement for the child," explained Richard Dawahare, the attorney who tried the case. "Once that happens, the cabinet approves a placement, judicial finding of neglect is made and the child comes from a poor home, which usually they are entitled to food stamps from the home they were removed from—then they are entitled to these payments.”
While the ruling was a win, problems quickly arose. Families weren't getting the payments. The Cabinet for Health and Family Services says this is due to the limited nature of the ruling. But Richard Dawahare says families are being wrongly denied their due.
“They’re not in it for the money, they love and want to take care of the children. Most of the people I deal with are of low or limited means, and it doesn’t matter because they are going to take care of the child but they know because of the publicity they know about the payments—and they know they are entitled. And the need and want help," he said.
This stemmed another lawsuit. Dawahare brought in the law firm Wyatt, Tarrant, & combs to assist with this new lawsuit filed in the United States District Court Eastern District of Kentucky. They are seeking to make it class action. The lawsuit says that qualifying families are being denied payments from the cabinet, while the cabinet removed the hearing process that allow families to dispute denials from DCBS.
“We are seeking class action capability, we are seeking to get the foster care maintenance benefits for our plaintiffs, and if class action, then the entire class," said Douglas L. McSwain, Partner at Wyatt, Tarrant & Combs. "And we’re also seeking to having an remedial due process reinstated to people who in the future may think they are entitled and disagree with the cabinet over it and the cabinet may think they are not. But that’s what you have due process hearings for. Then the issues can be joined in an appropriate appeal at the state level and doesn’t have to be brought in federal court.”
The hope is to help get the families the help they need to care for the families in need.
“These relatives or plaintiffs, the money is not coming to them for the child they have got to use their own limited resources. But often times the children do without or the family, the whole family live without." said Dawahare. "So its a huge deal for them it is an investment for people and not only people but some of the most vulnerable citizens of this state at a critical time in their lives because these children have already been subject to abuse, neglect, a lot of us can’t appreciate the trauma they went through.”
“Our goal is to try and help this litigation bring about a correct result that aligns the financial incentives of preferring to help keep children with the best care they can get with relatives," said McSwain. "And at the same time, encouraging the relatives to take care of those children by removing barriers, financial barriers that may preclude them from being able to do the care”
But even with a favorable outcome, thousands of families still won't qualify.
"It won’t help every child in the commonwealth that is living with a relative or fictive kin but it’s certainly got the possibility of helping ot get a clearer understanding of the law," said McSwain.
Dawahare isn't doing this to villainize the cabinet he says, but to help those in need.
"We have a wonderful state and a wonderful system. We have a lot of compassionate people, in Washington they came together," he said. "Our state is full of compassionate people, the people even we are opposed against in the cabinet do a lot of good work, a lot of good work we’re just a couple of parts too short in building this bridge”
The case is still currently in discovery and scheduled to be heard in Fall 2019.
This lawsuit is expected to go on for awhile. In the meantime, Senator Reggie Thomas, D-Lexington, has prefiled a bill to provide payments to low income relative and fictive kin caregivers. The measure would establish the KinCare Support Program and would provide payments to families with temporary or permanent custody of a child.
Senator Thomas says he believes it's important to pay families who are not covered under DO v Glisson.
"These family members, these grandparents who are doing the right thing, do deserve some help from the state," he said.
These payments would be a minimum of $300 per month per child through the age of 18.
The Department for Community Based Services denied an on camera interview but did answer questions submitted. Below are the questions and answers from DCBS.
1. Back in August at a committee hearing Commissioner Clark told lawmakers there had been 23,000 applications submitted to get monetary assistance for kinship care (as a result of Do v. Glisson) but only around 1,800 were approved. Where are those numbers at now? What is the average payment per relative caregiver? How much money has been allocated so far total?
As of late November (the latest figures we have readily available), 1,471 individuals have been deemed qualified and have been notified of their eligibility to receive payment, and 1,085 individuals have submitted their caregiver agreement packets. The call volume to the Kinship Support Hotline remains the same, high, with what appears to be an increased volume in individuals checking the status of their inquiry. DCBS has received over 29,000 calls since February 13, 2018; however, many of these are repeat calls. House Bill 200 (2018 Regular Session) included an additional budget request of $11.3 million for State Fiscal Year (SFY) 2019 and $11.625 million in SFY 20 specifically for relative placement due to the D.O. v Glisson case. From February through the first week of December 2018, DCBS has issued 10,469 foster care benefit payments under the ruling totaling $9,501,682.94. These payments do not include other ancillary costs, such as legal services, staffing, and technology. In addition, a foster child is considered categorically eligible for Medicaid administered by another department, the Department for Medicaid Services. At present, the ruling is having an approximate $1.5 million monthly impact in benefit issuances alone and is anticipated to have better than $20 million impact on DCBS, inclusive of operating costs and benefits, for the SFY. Treating these relative and fictive kin caregivers like foster parents, DCBS reimburses the qualified caregiver as follows: $24.10 per day per child from birth to age 11, and $26.20 per day per child age 12+ --roughly $750 per month per child. The relative or fictive kin caregiver may qualify for a higher per diem if the relative or fictive kin becomes a certified foster parent and completes required training.
2. I know the cause of these low numbers is because the vast majority of the applicants did not qualify for the assistance under the ruling. How does one qualify for the payment?
The U.S. Court of Appeals entered the ruling on January 27, 2017. The state’s appeal to U.S. Supreme Court was denied on October 10, 2017. The ruling treated the relative caregiver like a foster parent, because DCBS/the cabinet placed the child with the relative (i.e., conducted a home study and background checks), and the child’s custody was transferred from the cabinet to the temporary custody of the relative. Under the ruling, the relative caregiver was deemed qualified for a foster care per diem for the care of the child. In the D.O. case, the qualification for the foster care per diem ceased upon permanent custody established using a DNA-9 (court) form. DCBS has extended the application of the ruling to other like cases, including fictive kin.
3. Speaking with kinship care providers throughout the state many say they just want to have some of the same benefits that foster care givers are provided. Are there plans to try and provide some of the same benefits to kinship care providers as foster care? (i.e. monetary assistance, childcare assistance, respite care, college assistance)
Yes, DCBS just filed a new ordinary administrative regulation on December 13th that outlines a proposed service array for relative and fictive kin caregivers, 922 KAR 1:565. The goal is to provide a menu of legal and service options to the caregiver, from which the caregiver can select the options most closely aligned with the caregiver’s preferences and the child’s individual needs. Informed by the work of Kentucky Youth Advocates, the Annie E. Casey Foundation, and Child Welfare Transformation, DCBS has multiple related initiatives and new programmatic features in development and/or under implementation. Funding, of course, is a factor. DCBS was also awarded federal Kinship Navigator Grant funds in Federal Fiscal Year 2018 to support its efforts and has additional opportunities to build on current and proposed supports presented in the Title IV-E of the Social Security Act, as amended by the Family First Prevention Services Act of 2018 (Pub. L. 115-123).
4. Many kinship care providers are unaware of the resources the cabinet has available to them—what are some of those?
Attached is an overview that is currently used, though it will require update in the near-term. In addition to reaching out to local DCBS staff with whom the relative or fictive kin caregiver may have a relationship or familiarity, DCBS supports a kinship support hotline.
5. What can you say to the kinship care providers who feel CHFS don’t place the same value in them as foster parents?
DCBS very much values relative and fictive kin caregivers. In fact, the findings of the assessment that Annie E. Casey Foundation conducted in the past year were that Kentucky is a leader in valuing kinship caregivers as a best option for children who have to be removed from their homes. DCBS and the courts look to these caregivers first, whenever possible, due to the reduced trauma and increased continuity for the child in placement. DCBS agrees that its service array needs to better match this value, and through the support of public and private partners, DCBS is in a position to better realize and effect that service array.