Maryland Legislators File New Laws to Protect Foster Children


legislatorDelagate Geraldine Valentino-Smith
legislatorMaryland State Senator Jamie Raskin

On March 3 of this year, Baltimore University’s Professor of Law Daniel L. Hatcher announced that Maryland State Senator Jamie Raskin and House Delagate Geraldine Valentino-Smith had sponsored legislation that “takes an important step toward improving protection of foster children’s own resources.”

Maryland SB 524, entitled “Family Law – Protecting the Resources of Children in State Custody,” and its companion HB 575, entitled “Family Law – Protecting the Resources of Children in State Custody” would mandate that:

  • The foster care agency serve in a fiduciary capacity for children in its care, only serving their best interests;
  • In addition to deciding how to best use the children’s resources for current unmet needs, the foster care agency begin conserving at least a percentage of the funds to help those children who will soon be aging out of care;
  • The foster care agency help children begin to understand finances and start planning for their futures.

“SB 524 and HB 575 help ensure that foster children’s own resources are used to truly help the children, including aiding the children’s struggle for future self sufficiency,” Hatcher explains.

Professor Hatcher continues on to explain that:

Maryland hired a private company last year — Maximus, Inc. — to provide an assessment for how the state can obtain more resources from foster children and, according to Maximus’ report, “maximize revenue gain”; the report describes foster children as a “revenue generating mechanism.” The Maryland Department of Human Resources contracted with Maximums despite litigation regarding the practice and a finding by the Maryland Court of Appeals that the agency violated foster children’s due process rights by providing no notice to the children or their lawyers.

BACKGROUND

MAXIMUS had persistently pursued human services contracts in Maryland, and the efforts paid off handsomely. The Afforable Care Act in particular provided the company with many golden opportunities.

According to an announcement in the company’s Investor Relations pages, on June 14, 2013, the company was awarded a five-year base that is valued at approximately $36 million to operate call centers for the Maryland Health Benefit Exchange – which is used by Maryland residents to look for health insurance under the federal Affordable Care Act. The contract started on June 3, 2013, and will run through December 31, 2017.

Richard A. Montoni, Chief Executive Officer of MAXIMUS, explains that, “This latest contract award is part of our growing portfolio of work related to the Affordable Care Act, which includes our selection as the vendor of choice to support state health insurance marketplaces in Minnesota, New York, Connecticut, Vermont and Hawaii.”

With regard to the Maryland Human Services Agency’s use of foster children’s SSI and related benefits, Yvonne Wenger of the Baltimore Sun reports that as of February of 2014, the Agency was “considering whether to hire a private contractor to routinely screen foster children for benefits and apply to get them — which would increase the money the state collects each year.”

Wenger explains that a report that MAXIMUS provided to Maryland in September 2013 “shows the state could expect to collect Social Security disability benefits on behalf of approximately a quarter of its foster care children, based on national norms. That would generate as much as $6.9 million to $9.2 million each year.”

By that time, MAXIMUS was already described as one of two of the largest of the Maryland Human Services Agency’s largest contractors, the other contractor being Xerox, according to a letter dated November 1, 2013, addressed from the Agency to Maryland State Treasurer Nancy K. Kopp.

THE LEGAL CHALLENGE

In October, 2010, a lawsuit was filed against the agency by the University of Baltimore Civil Advocacy Clinic. As its press release explained at the time:

Alex M. alleges that BCDSS and the Maryland Department of Human Resources secretly applied for Social Security Old-Age, Survivors, and Disability Insurance benefits (“survivor benefits”) on Alex’s behalf when his father died, and took the money for the state’s fiscal self-interests rather than for Alex’s benefit. Alex appealed a judge’s dismissal of the lawsuit, and an appellate brief has just been filed on his behalf in the Maryland Court of Special Appeals.

During the course of the litigation, Professor Hatcher requested some relevent documents through the Maryland Public Information Act. He reported through the Baltimore Sun that efforts to “maximize revenue gain” included in a proposal by MAXIMUS inluded;

  • A goal to increase the number of Maryland foster children determined disabled for Social Security benefits from the current 2 percent to 15-20 percent
  • Plans to convert up to $9 million annually in resulting children’s benefits to government revenue;
  • And a warning that Maryland may be double-dipping by possibly obtaining foster children’s assets and other funds to reimburse itself for state costs more than once.

Time passed, and in March 2013, Professor Hatcher, together with other child advocacy groups, filed another legal brief, this time in the Court of Appeals of Maryland, saying they endorsed the arguments “as to the illegality and impropriety of the DSS conduct at issue in this case.”1

On September 26, 2013, the Maryland Court of Appeals issued its final ruling in In Re: Ryan W., explaining in part that:

All of a child’s resources, including “survivor’s disability insurance,” are subject to allocation by the Department to reimburse itself for the “cost of care” of a foster child in an out-of-home placement.

The Court continued on to rule that the applicable state regulation

identifies explicitly “survivor’s disability insurance” as an example of resources that may be tapped by the Department for self-reimbursement. Foster children over the age of 18 in an out-of-home placement, if entitled to survivor’s disability benefits, may elect either to receive the payments themselves and then reimburse the Department, or to have the Department appointed as the child’s representative payee for the benefits.2

Having lost all available judicial remedies, Professor Hatcher and other child advocacy groups are pursuing available legislative remedies. Time will tell how the Maryland legislature will handle these two important bills. Meanwhile, MAXIMUS is fast at work maximizing revenue for the state off the backs of helpless foster children.

There may be cause for cautious optimism. Professor Hatcher explains, “The Senate bill, with amendments, received a unanimous favorable vote from the Senate Judicial Proceedings Committee. A hearing will soon be held before the House Judiciary Committee. Members of that committee should follow the lead of their counterparts in the Senate.”

Maryland residents may wish to consider calling or writing their representatives in support of these two bills.


1. Among the advocacy groups were First Star and the Children’s Advocacy Institute, who together published “The Fleecing of Foster Children: How We Confiscate Their Assets and Undermine Their Financial Security,” which examines the issue of child welfare agencies using SSI, survivor’s benefits, and other funds available to children under the Social Security Act to offset the costs associated with foster care.

2. In re: Ryan W. 76 A.3d 1049, 434 Md. 577 (2013). See also In re: Ryan W. 207 Md. App. 698, 56 A.3d 250 (2012) cert. granted, 429 Md. 428 (2012) (Court of Special Appeals of Maryland opinion on motion for consideration, dated November 21, 2012, (citing DHR regulatioon that provides that all of a foster child’s resources, “including parental support, the child’s own benefits, insurance, cash assets, trust accounts, and, for the child who is preparing for independent living, the child’s earnings, are considered, as established in the service agreement, in determining the amount available for reimbursement of the cost of care”).

Related

Alex Myers v. Baltimore County Department Of Social Services, Et Al. No. 2765. Amicus brief of Public Justice Center, Legal Aid Bureau, Randall & Sonnier, Children’s Advocacy Institute, And Susan Leviton. (Court 0f Special Appeals of Maryland, October 8, 2010).