16 Years After Historic Ruling: Some Foster Kids May See Light at the End of the Tunnel



Many years after an historic series of legal battles began concerning the use of Supplemental Security Income by the foster care industry was waged in the courts, a modest step toward the attainment of a longstanding promise to foster children and their families has been taken by the Social Security Administration.

Writing on the Social Security Blog on September 8, 2016, Susan Wilschke, explains how Social Security may help young people with disabilities who are about to leave foster care, often at age 18:

When foster care ends, they may become eligible for SSI – but in the time period before SSI payments begin, they may be left without any means of support. On August 1, 2016, we expanded the early application period for people leaving foster care from 90 days ahead of the date they leave foster care to 180 days ahead, as a pilot test nationwide. Starting an SSI application earlier allows for a smoother transition out of foster care for those eligible for SSI as adults.1

The Juvenile Law Center, Community Legal Services, and Homeless Advocacy Project have jointly created a toolkit for advocates that explains the new policy changes in plain English, providing them with valuable information – including forms – so that they may be better equipped to aid youth transitioning from foster care into adulthood.

As the toolkit explains it, this new policy allows foster youth of any age to apply for SSI up to 6 months (180 days) before they leave care. Beginning August 1, 2016, foster youth can submit an application and get a disability determination 6 months before their expected discharge date, even if they do not yet meet the income eligibility requirements due to their foster care payments.

The step-by-step guide provides tremendous help to advocates seeking to navigate the intricacies of the Social Security System, and as such it has the potential to assist many youths who may otherwise find themselves emancipated from foster care quite literally penniless, as up to this point in their journey their SSI benefits have been used by child welfare agencies to offset their costs of care. As the toolkit itself explains,

Youth transitioning out of foster care are a particularly vulnerable population. Studies have confirmed what advocates in the field know from experience – that youth who age out of foster care are more likely to experience negative outcomes, including homelessness, unemployment, incarceration, and lack of access to health care. Many of these young people have disabilities that could qualify them for SSI, and that cash assistance can be a vital source of stability as they transition out of the foster care system. Yet too often, youth leave foster care without SSI benefits in place, and with no other source of income or support, placing them at a high risk of becoming homeless while they wait for their SSI applications to be processed and approved.

“Providing stability for these vulnerable youth as they leave care requires thoughtful planning and coordination among many different agencies and actors,” said Community Legal Services attorney and Independence Foundation Fellow Claire Grandison.

“We know that foster youth with disabilities face a tremendous uphill battle as they prepare for adulthood and independence,” said Karen Lindell, an attorney at Juvenile Law Center.

“By allowing foster youth to apply for SSI benefits six months before they leave care, this new policy will help avoid destabilizing gaps in support during critical transition periods. This increased stability can have lifelong benefits, as it allows these vulnerable young adults to focus on finishing school, learning a trade, or developing life skills, rather than on finding a place to sleep at night.”

According to Public Legal Services of Philadelphia, this modest change also offers the potential to increase successful family reunifications:

This new policy can also help in reunifying families by providing an immediate source of additional financial support that many families need, thus reducing financial stresses. In Pennsylvania, the rate of failed reunifications is 28%. This new policy means that families will have income from SSI in place more quickly after reunification, easing the transition and reducing financial strain.2

This is a crucial point, as having had a child or children removed is frequently the financial kiss of death for a family. Those parents with the financial resources to fight for their children may find those resources quickly depleted by legal fees. Parents reliant on meager social supports may find them cut off completely, only to be replaced by a bill for child support to pay for their children’s foster care and other services, regardless of whether or not they were actually at fault. Compliance with reunification plans frequently makes it impossible for parents to maintain a job, and non-custodial parents frequently find themselves saddled with child support obligations designed to reimburse the state, while providing precious little actual support to their children.3

Advocates should avail themselves of this opportunity to help wards of the state approaching emancipation to increase their chances of a successful reunification with their families, as well as to provide them with something of a safety net against the well-documented perils they are certain to face on the streets devoid of families and other social supports.

A BRIEF HISTORY

The use of Supplemental Security Income by child welfare agencies seeking to offset their costs of foster care became a contentious issue during the mid-1990s, attaining national attention by virtue of a legal action initiated in Washington State.4

The central issue on the case was whether the State could appoint itself as the “representative payee” for foster children in its care who qualified for these SSI benefits to the near-total exclusion of other and more appropriate payees – such as grandparents and other relatives – converting the funds to its own benefit. In its ruling on the case, the Washington Supreme Court noted that,

DSHS admits it would probably not even apply to be a representative payee if it could not rely on the child’s SSI benefits to reimburse the cost of care.  By the same token, DSHS admittedly cannot actively seek reimbursement from benefits paid to private representative payees because Congress specifically protects Social Security benefits from transfer, assignment, execution, levy, attachment, garnishment, or other legal process under 42 U.S.C. § 407(a). Thus, DSHS receives reimbursement for foster care only if it serves as a representative payee, and it only serves as representative payee so it can confiscate the child’s money.

This scheme stands in stark contrast to 20 C.F.R. § 404.2021 which expressly provides, “Our primary concern is to select the payee who will best serve the beneficiary’s interest.” Obviously the child is better off with any payee other than the state because DSHS must provide foster care under state law regardless of whether it receives a reimbursement. DSHS’s self-prioritization is extremely disquieting in the face of a regulatory mandate that we consider these disenfranchised children before enriching government coffers.5

Even as the case wound its way to the U.S. Supreme Court, the debate began in scholarly circles, with two early articles in particular standing out in the their harsh condemnation of the practice.6 An article by Tobias J. Kammer in Washington Law Review noted that the Supreme Court of Washington recognized that unless the state forced DSHS to apply for Social Security benefits, claiming the practice to be serving the best interests of foster children, many children would be left entirely without benefits.

The case wound its way to the United States Supreme Court, which unanimously ruled that the use of SSI by states to pay for “current maintenance costs” for foster children was an appropriate use of the funds, and that enforcement of the Social Security rules and regulations was the function of the Secretary of the Social Security Administration. More to the point, the U.S. Supreme Court explained that “there is reason to believe that if state agencies could not use Social Security benefits to reimburse the State in funding current costs of foster care, many States would be discouraged from accepting appointment as representative payees by the administrative costs of acting in that capacity.” And, without such agencies to identify children eligible for federal benefits and to help them qualify, “many eligible children would either obtain no Social Security benefits or need some very good luck to get them. With a smaller total pool of money for their potential use, the chances of having funds for genuine needs beyond immediate support would obviously shrink, to the children’s loss.”8

The ensuing debate centered around the promise that these federal funds would provide some tangible benefits for foster children, as well as for their families. Many advocates were unpersuaded by this argument, as it soon became quite clear that foster children saw none of the benefits of this financial arrangement. As Angie Schwartz and Diana Glick explained in Clearinghouse Review, “advocates cite the enormous potential for abuse on the part of child welfare agencies as well as actual abuses documented in SSA audit reports, which have indicated malfeasance in the handling of SSI benefits for foster youths.”9

Among the advocates of this position was Emily W. McGill, who expressed this sentiment quite clearly in Case Western Reserve Law Review, explaining that:

A particularly lucrative method of foster-care funding comes from the foster children themselves, when child welfare agencies become representative payees for foster children receiving Social Security benefits and then apply those benefits to the cost of foster care. By using the Social Security benefits of foster children, agencies can receive additional federal funding and reduce the amount of state expenditures. This fiscal benefit to the state may be a significant detriment to foster children, for it strips them of assets that could be used to meet their individual needs or plan for their eventual emancipation.10

McGill further explains that, “In practice, child welfare agencies are almost always appointed representative payees for foster children who are receiving benefits.” In support of this position, McGill notes that at the time the U.S. Supreme Court reviewed the state of Washington’s use of foster children’s benefits, that state’s agency was the representative payee for 1,411 of the 1,480 foster children receiving Social Security funds, and that similar statistics were to be found in most states.11

The United States Supreme Court sent its ruling back to Washington state, where its own Supreme Court found itself bound by the ruling of the higher Court in 2004. Regarding the allegations of gross financial improprieties on the part of the State, the Washington Supreme Court explained that it was bound by the higher Court’s ruling, and that these claims would be the responsibility of the Commissioner of Social Security. As the Court explained it:

Respondent further alleges that the State double dips, sweeps children’s accounts, and uses funds for programmatic costs. A misuse of funds may create an equal protection violation because children with private representative payees are getting full use of their benefits, but children with a state representative payee are not. However, the United States Supreme Court did not address these misuse of funds arguments but suggested Keffeler take his complaints to the Commissioner “who bears responsibility for overseeing representative payees.”12

The disenfranchised children of whom the Washington Supreme Court wrote in its first ruling had now become officially and irrevocably disenfranchised by virtue of the ruling of the highest Court in the land. And, their disenfranchisement was now officially sanctioned nationwide.

THE DISENFRANCHISED CHILDREN

Nowhere is the foster care system’s self-prioritization more disquieting and apparent than in another Washington case – one in which the Department waged a three-year legal battle raising several arguments to the effect that it was under no obligation whatsoever to assist homeless families and children, regardless of whether that homelessness may have served to make children candidates for entry into foster care.13

The case its way into the state’s Supreme Court 1997, where DSHS argued that the definition of “child welfare services” was so vague that it was under no legal obligation to provide them. The Department also argued that the only children that it considered to be homeless were those children who were also “dependent” children, meaning that they were not only homeless, but without the benefit of a family. At this juncture, the Washington Supreme Court turned to Webster’s Third New International Dictionary to define the meaning of the term “homeless” for the benefit of the Department. It also referenced a number of state reports on the topic of homelessness, as well as relevant state statutes, to clarify that homeless children did not need to be either without a family or orphaned in order to be eligible for services, as the Department had – rather incredibly – asserted.14

The Department’s true motivations emerged when it presented a “plan” that would provide aid to those children who were not only homeless, but also eligible for AFDC benefits – meaning that if placed into foster care, they would be eligible for generous rates of federal financial reimbursements. The Court ultimately ruled that the applicable state statute “requires the Department of Social and Health Services to provide child welfare services and to develop, administer, supervise, and monitor a coordinated and comprehensive plan that establishes, aids, and strengthens services for the protection and care of homeless children.”15

The Washington Supreme Court’s patience with DSHS appeared to be put to the test. Noting that courts “will not interfere with the work and decisions of an agency of the state, so long as questions of law are not involved, and so long as the agency acts within the terms of the duties delegated to it by statute,” noted that “where the acts of public officers are arbitrary, tyrannical, or predicated upon a fundamentally wrong basis, then the courts may interfere to protect the rights of individuals.”

In more recent times, several states have applied for “waivers” of the strict regulations that come with federal funding under Title IV-E, providing themselves with the potential to produce financial gains that may confound outside auditors. The Social Security Advisory Board explains in a 2014 report that “at least some of the waivers may inadvertently result in improper SSI payments and States may be receiving Federal funds from two sources for the same purpose.”

Citing a report by the SSA Office of Inspector General, the Board explains: “The OIG report noted that it did not believe that Florida’s accounting system provided enough detail to confirm its assertion, and moreover, several other States, Indiana, Ohio, Oregon and California were also participating in the same waiver program.”16

This variety of financial double-dipping is a widespread and longstanding problem, and one that is not necessarily limited to those states operating under Title IV-E waivers. An Audit of recent vintage conducted in Richmond, Virginia, found – among numerous other financial improprieties – that in addition to the overpayments refunded during the audit scope, “an additional liability of at least $100,000 still exists that must be refunded to SSA, as 37 (44%) of the 85 foster care clients who received SSI during the audit scope inappropriately received SSI and Title IV-E benefits concurrently.”17

SSA INVESTIGATES

The U.S. Supreme Court left it to the Social Security Administration to investigate claims of financial misdeeds among the states. Unfortunately, the Social Security Administration can be extremely lax in its investigations of alleged financial improprieties – even when they are brought to the Agency’s attention by its own Inspector General. In February of 2009, the Inspector General had identified 402 children whose benefits were deemed to have been at risk for abuse. Together, these representative payees handled about $2.4 million annually. As of March 2010,

SSA had only reviewed 50 of the 402 children’s representative payees we identified and referred to the Agency. The Agency had not yet assessed the suitability of the remaining 352 children’s representative payees who were receiving benefit payments on behalf of children who were in the foster care agency’s custody. Also, as of February 2010, the Agency had not assessed the suitability of the 186 representative payees who were foster care parents.18

In many respects, the Social Security Administration’s investigative decision-making appears to parallel that of Child Protective Services. The criteria used in the selection of the 50 out of the 402 referrals remains a mystery. SSA also failed to provide the Inspector General with sufficient and reliable information to support its suitability decisions for the few representative payees that were actually reviewed. As the Inspector General explains it: “Therefore, we could not independently determine whether the suitability assessments were conducted in accordance with Agency policy and supported the decisions made. As a result, we have no basis to determine whether the Agency’s decision to allow 34 of the 49 representative payees to continue serving as payees was the correct decision. Nor could we determine why SSA determined five representative payees were unsuitable but found no misuse.”19

Then there is the stunning lack of documentation that is a familiar hallmark of CPS decision-making, once and again remarkably paralleled by the Social Security Administration. As the Inspector General’s report explains:

We requested documentation supporting SSA’s suitability assessments of the representative payees. The Agency only provided brief summaries of the decisions made, not the basis for those decisions. SSA staff reported no documentation or further information for the suitability assessments could be located.20

SEEKING SOLUTIONS

An article of recent vintage examining the support provided to youths emancipated from foster care notes that, “An interaction effect indicated that Black youth were significantly less likely to receive services in large urban areas than other racial/ethnic groups.” This much comes as no surprise. However, the article continues on to note that, “Young people with disabilities or medical/psychological conditions were generally more likely to receive services than youth without disabilities.” This serves well to raise the question of whether child welfare agencies are more willing to provide after-care support services to those emancipated from foster care who are the recipients of the funding provided by the social security program at the time of their release.21

This is one of many areas open for exploration by advocates in light of the new regulations.

In 2002, the American Bar Association crafted a Resolution urging the Presidential Administration to support – and for Congress to enact – legislation that would serve to strengthen the safeguards and protections of individuals receiving benefits under programs administered by the Social Security Administration.

Aware of the many system-wide abuses with respect to agencies being appointed as representative payees for the elderly, as well as for juveniles, the ABA urged the Social Security Administration that in the case of organizational representative payees it would act to

cooperate with state and territorial courts with guardianship, juvenile, or family law jurisdiction by disclosing to them and members of the immediate family of a Beneficiary, under an appropriate exception to the Privacy Act of 1974, (“routine use”) information about representative payees or former representative payees considered for appointment as guardians for Beneficiaries or recipients of entitlements administered by the Social Security Administration or another government agency.22

The Resolution continued on to urge that, “In the case of organizational fiduciaries, disclosure of information about their records as representative payees should be made to a requesting state or territorial court without further administrative delay.” Four of the ABA’s key reform proposals included:

  • Replacement by SSA of any benefits misappropriated or misused by an organizational representative payee if not otherwise reimbursed;
  • Mandatory initial and continued bonding of organizational representative payees in all states where they provide services;
  • Forfeiture by representative payees of any fees normally allowed by SSA for any months in which an organizational payee has misused all or part of a Beneficiary’s benefits;
  • Authority for SSA to impose a civil monetary penalty against organizations which misuse, convert, or misappropriate payments for Beneficiaries received while acting in a representative payee capacity.

Several other specific reform proposals were put forth in the Resolution, and advocates may do well to consider it as something of a model from which to craft a similar contemporary position statement that they may collectively agree upon and ratify as signatories.

CONCLUSION

While the recent update to Social Security regulations finally serves as some small measure of progress, many key policies of the Social Security Administration remain unchanged. Indeed, the Social Security Advisory Board notes in its 2014 Annual Report that,

State agencies remain at the bottom of the payee preference list but are often automatically appointed as the payees for foster children through a process called the “kiddie loop” which is an expedited way to name a representative payee for more than one beneficiary.23

A revised version of the program instruction concerning the Kiddie Loop went into effect on November 2, 2016, to reflect technical changes in the computer system. The most recent version of this instruction states that an operator of the system should:

Use the “kiddie loop” shortcut function in the eRPS when one applicant files to be payee for more than one beneficiary. . . You can use this shortcut even if the beneficiaries are entitled on different account numbers as long as they reside in the same household.24


1. Susan Wilschke, “Helping Young People with Disabilities Successfully Transition to Adulthood,” Social Security Matters, September 8 2016.

2. “New Social Security Policy Benefits Youth Leaving Foster Care,” Community Legal Services of Philadelphia. This point bears some emphasis, as families impacted by the system almost-invariable find themselves drained of their meager financial assets. They may – quite literally – find themselves forced to “reimburse” the state for the service of having destroyed their family.

3 See in Re Shawna Maye Galehouse, 326712 (Mich. Ct. App. 2016) (parents charged $126,494.22 by County for costs of daughter’s care, regardless of culpability and regardless of duplicitous federal reimbursements); In re Interest of Gabriela H., 280 Neb. 284, 785 N.W.2d 843 (2010) (“It is clear from the record that DHHS declined to accept the relinquishment of parental rights because one of the parents was paying a ‘pretty substantial amount’ of child support which partially offset DHHS’ cost with respect to [the child’s] care”); In Re Betty P., E2010-00318-COA-R3-PT (Tenn. Ct. App. 2010) (termination of parental rights upheld where mother fell $400 behind on support obligation); Dorothy E Roberts, Northwestern University (Evanston, and Institute for Policy Research, Is There Justice in Children’s Rights?: The Critique of Federal Family Preservation Policy (Evanston, IL: Institute for Policy Research, Northwestern University, 1999) (“The loss of benefits may cause parents to be evicted from their homes, run out of food, and lose other resources needed for reunification with their children.”); Harriet Shaklee, Jeri Bigbee, and Misty Wall, “Grand Families Count In Idaho,” Idaho Kids Count Policy Brief, 2008 (“Relative caregivers may find themselves seeking social services for the first time to manage the expenses of the additional children in their home, and many will need a lawyer to establish their rights and authority as caregivers. Some will deplete life savings and retirement accounts to meet these many expenses associated with kincare”); Daniel L. Hatcher and Hannah Lieberman, “Breaking the Cycle of Defeat for ‘Deadbroke’ Noncustodial Parents Through Advocacy on Child Support Issues,” Clearinghouse Review 37 (2003): 5–22 (“Unrealistic order amounts, inappropriate imputation of income, lack of access to agency files, agency failure to modify orders, inappropriate driver’s license suspensions and credit reporting, contempt proceedings against obligors who do not have the ability to pay child support, and errors in paternity establishment can significantly harm fathers, mothers, and children.”); Daniel L. Hatcher, “Collateral Children: Consequence and Illegality at the Intersection of Foster Care and Child Support,” Brooklyn Law Review. 74, no. 4 (2009): 1333–80 (“Saddled with the additional child support obligation, the parents’ struggles toward economic stability and family reunification are often derailed. Case plans required by federal law to aid reunification are illegally converted into debt-collection tools. If the parents fall behind, the government-owed debt can become a consideration, sometimes the sole factor, for the permanent seizure of their children through the process of terminating parental rights”); Families in Crisis,” Report 2, 1991-92 San Diego County Grand Jury, February 6, 1992 (“Judges and referees were observed, seemingly without thought, ordering parents into programs which require more than 40 hours per week. Frequently, these parents have only public transportation. Obviously, there is no time to earn a living or otherwise live a life”). But see also Child Welfare Services: Protection of Children, 2008-2009 San Diego Grand Jury, June 2009 (noting that “This practice continues nothwithstanding In re Ivan C., 2005 WL 1317045 (Cal. App. 2 Dist., 2005), in which the Court of Appeals ruled that: ‘The Department’s obligation to tailor services to an individual family’s needs includes making reasonable efforts to assist in areas where compliance is difficult. This includes helping to meet the scheduling needs of a working parent.’”); Leslie J. Harris et al., “Reasonable Efforts to Reunify in Dependency Cases” (Oregon Child Advocacy Project, 2009) (examining Oregon dependency system, noting that inherent in the general planning and reasonable efforts requirements is “the obligation of DHS to offer a parent a package of services that fit together and fit with the parent’s work schedule”).

4. Guardianship Estate of Keffeler v. Dep’t of Soc. & Health Servs., 145 Wash.2d 1, 4, 32 P.3d 267 (2001).

5. Id at 274-275.

6. Jim Moye, “Get Your Hands Out of Their Pockets: The Case Against State Seizure of Foster Children’s Social Security Benefits,” Georgetown Journal on Poverty Law & Policy 10 (2003): 67; Tobias J. Kammer, “Keffeler v. Department of Social and Health Services: How the Supreme Court of Washington Mistook Caring for Children as Robbing Them Blind,” Washington Law Review. 77 (2002): 877. Both of these influential articles predated the U.S. Supreme Court’s ruling on the Keffeler case.

7. Kammer, p. 877, fn 3.

8. Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 123 S. Ct. 1017, 154 L. Ed. 2D 972 (2003).

9. Angie Schwartz and Diana Glick, “Use of Supplemental Security Income to Maximize Assets and Income for Foster Youths with Disabilities, The,” Clearinghouse Review 41 (2008): 602. In support of their claims of malfeasance, Schwartz and Glick cited two government-issued reports in particular: Office of the Inspector General, “Financial-Related Audit of the Baltimore City Department of Social Services-An Organizational Representative Payee for the Social Security Administration,” Audit (Social Security Administration, September 2001) (Baltimore Department “did not record, or incorrectly recorded, benefit receipts and/or disbursements” in 82 percent of sampled cases. These and other problems were identified as pervasive, and the OIG recommended that the agency must install controls to ensure that it could “significantly improve its financial management and oversight of Social Security benefits”); Office of the Inspector General, “San Francisco Department of Human Services – An Organizational Representative Payee for the Social Security Administration,” Audit (Social Security Administration, November 2003) (finding duplicated payments with regard to the SSI and Title IV-E programs; a lack of meaningful financial controls; that the Department had mis-allocated funds; and that certain child beneficiaries had been underpaid or not paid at all).

10. Emily W. McGill, “Penny Wise, Pound Foolish: Child Welfare Agencies as Social Security Representative Payees for Foster Children,” Case Western Reserve Law Review 58 (2007): 961.

11. Ibid at 964. The by-now-infamous case to which McGill refers is, of course, Wash. State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 381, 123 S. Ct. 1017, 154 L. Ed. 2D 972 (2003).

12. Guardianship Estate of Keffeler ex rel. Pierce v. State, 151 Wash.2d 331, 88 P.3d 949 (2004).

14. 949 P.2d at 1297-1298.

15. Id. Footnote 7 of the ruling is quite illustrative, and is worthy of noting herein in its entirety:

A social worker employed by DSHS testified by affidavit that the parents’ procurement of safe and stable housing is a precondition to the return of the children in 90 percent of her caseload. The caseworker testified that DSHS caseworkers are not able to offer any housing assistance to families, even when it would prevent a foster care placement or allow a family to be reunited. Another caseworker testified that he frequently includes the need for adequate housing in the court orders of parents whose children are in foster care and that, in his opinion, if adequate housing were available to caseworkers for use in these cases, reunification would happen earlier and more frequently than it currently happens. Another DSHS caseworker testified that caseworkers are not able to address problems of at-risk families and prevent foster care because, without housing, services or treatment are either inaccessible to the family or ineffective. When the family is homeless, the caseworker is often left with the choice of doing nothing or taking the child into foster care. Former King County Superior Court Judge Terrence A. Carroll testified by affidavit that a family’s homelessness or other lack of adequate housing is a significant factor contributing to the need for foster care placement in a substantial number of cases in Washington State and that homelessness prevented or significantly delayed the child’s return to the family in a substantial number of cases. Former Judge Carroll also testified that DSHS has not equipped its caseworkers to provide effective housing resources and that caseworkers routinely opposed proposals that the court order such services by asserting that the caseworker lacked the resources.

16. Social Security Advisory Board, “Social Security Advisory Board Statement on the Supplemental Security Income Program,” concluding statement, 2014 Annual Report of the SSI Program (Social Security Administration, August 22, 2014). The Florida audit cited therein was: Office of the Inspector General, “Florida’s Title IV-E Waiver May Impact Supplemental Security Income Benefits” (Social Security Administration, May 2009) (“We believe Florida’s accounting system does not provide enough detail to confirm State funds, rather than Title IV-E funds, are being used for foster care maintenance payments for those children also receiving SSI payments. As such, the State could be receiving Federal funds from two sources for the same purpose”).

17. Office of the City Auditor, “Department of Social Services CSA and Foster Care Audit” (City of Richmond, VA. May 2011). p. 20. A close reading of this and related financial audits in light of the findings made in the Florida audit may suggest that the Title IV-E waivers may not in and of themselves be responsible for the duplicate billings; rather it appears likely that the waivers provide states with greater opportunities to better obfuscate their billing practices and procedures, thus rendering it impractical or exceedingly difficult for outside auditors to conclusively identify the actual source (as well as the underlying intent) of the financial discrepancies.

These are but the tip of the proverbial iceberg. By the mid-1990s, similar federal revenue maximization practices had become pervasive throughout the foster care system. See for example Inspector General, “Accounting for Social Security Benefits by the County of Los Angeles, California,” Audit (Social Security Administration, April 1998) (County routinely reimbursed itself retroactively for foster care costs without seeking prior authorization, failed to create dedicated accounts for large lump-sum awards, and misappropriated the interest earned on children’s SSI accounts to the tune of $72,000 in 1997); Inspector General, “Review of the County of Los Angeles’ Peformance as Representative Payee for Title II and Title XVI Children in Foster Care,” Audit (Social Security Administration, July 1997) (“DCFS voluntarily returned over $1 million to SSA representing children’s conserved funds in excess of the $2,000 title XVI resource limit and benefits received for children who were not in the County’s care”); Inspector General, “Accounting for Social Security Benefits by Contra Costa County, California,” Audit (Social Security Administration, November 1998) (similar financial improprieties).

Such fiscal improprieties were not limited to SSA-administered programs, and were found to be not only statewide in scope, see e.g. Inspector General, “Foster Care Training Administrative Costs Claimed for Federal Reimbursement by the California Department of Social Services,” Audit (U.S. Department of Health and Human Services, September 1997) ($8.4 million inappropriately claimed resulting in an overclaim of Federal funds totaling $2.1 million; $2.8 million federal funds claims inadequately supported; two duplicate claims totaling $6.8 million in costs claimed); Inspector General, “Audit of Title IV-E Foster Care Eligibility in California for the Period October 1, 1988 through September 30, 1991,” Audit (U.S. Department of Health and Human Services, March 1994) (review of a statistical sample of 805 cases statewide resulted in the identification of 313 cases for which eligibility for federal financial participation “was not supported for all or part of the payments made on behalf of children”) but rather were nationwidein their scope. See Inspector General, “Summary Report on Nationwide Audit of Training Contract and Administrative Costs Charged to Department of Health and Human Services Supported Programs,” Audit (U.S. Department of Health and Human Services, April 1997) (“we found improper practices for identifying and charging training and administrative costs existed to some extent in all seven States reviewed. As a result, we have recommended financial adjustments totaling $58,222,453”). While numerous newer audits reveal strikingly similar results, I focus herein on a representative sample drawn from the 1990s to illustrate that this is part of a continuum that remains an unchanging constant in the foster care industry.

18Inspector General, “Benefit Payments Managed by Representative Payees of Children in Foster Care,” Evaluation Report (Social Security Administration, June 2010). p. 3.

19. Ibid. p. 5.

20. Ibid.

21. Nathanael J Okpych, “Receipt of Independent Living Services among Older Youth in Foster Care: An Analysis of National Data from the U.S.,” Children and Youth Services Review 51 (2015): 74–86.

22. ABA House of Delegates, “Legal Problems of the Elderly,” Resolution (American Bar Association, February 2002).

23. Social Security Advisory Board, “Social Security Advisory Board Statement on the Supplemental Security Income Program.” See note 16.

24. Program Operations Manual System (POMS), GN 00502.110 Taking Applications in the eRPS. Section C. 3. Social Security Administration. Effective dates 11/02/2016 – Present. Program Operations Manual System (POMS), SI 00830.410 Foster Care Payments, details the new policy concerning foster children.