Transition Planning From the Child Welfare System for Youth with

Special NeedsBrian Blalock, Bay Area Legal Aid

Jenny Pokempner, Juvenile Law Center

Challenges of Transitioning Youth in the Child Welfare System Transition from the child welfare system

(CW) is difficult for youth in general. Youth with disabilities face additional

challenges: They often have multi-system needs. The complexity of their needs is often not fully

recognized. To transition they need to coordinate with complicated

adult serving systems. Their age-appropriate needs for freedom and

responsibility are often not prioritized. They are less likely to have a support system or

advocate to follow them post-transition

Goals of Today’s Workshop 1. Discuss legal framework for advocacy

around transition to adulthood for youth with disabilities.

2. Introduce benefits and systems advocates need to know for transition advocacy.

3. Spotlight best practices in the states.

Youth in Care have Many and Multiple Health and Behavioral Health Care Needs Of youth who enter the child welfare system: Almost 90% have some health problem or

need 55% have two or more chronic health care

conditions Almost 25% have three or more chronic

health care conditions 30-60% have developmental delays 50-80% have mental and behavioral

health problems 30-40% are receiving special education

services

Youth with Disabilities in Foster Care Have Even Poorer Outcomes than their Non-Disabled Peers They are: More likely to be maltreated while in the

system More likely to have placement instability More likely to be institutionalized Lower rates of achievement of

permanency and longer stays in care Poorer educational achievement

The Legal Framework for Transition

Providing the Least Restrictive Setting and Services for Individuals with Disabilities The Americans with Disabilities Act and

Rehabilitation Act Prohibit disability discrimination in the

provision of services and require that individuals be served in the most integrative setting appropriate to their needs.

Individuals with disabilities must be provided an equal opportunity to benefit from all of their programs, services, and activities provided by federal, state, and local government.

Providing the Least Restrictive and Most Family Like Setting to Youth in the Child Welfare System Federal law requires that states have a

case review system in place to ensure that each youth has a case plan designed to achieve placement in a setting that is: the least restrictive, most family like, consistent with the youth’s best interests, and meets the youth’s special needs.

42 U.S.C.A. §675 (5)(A)

The Importance of Reduced Restriction and Community Integration Outcomes tend to be poorer in congregate

care and other restrictive settings. Best practices support utilizing

community and integrative settings that “normalize” a youth’s experience.

Access to people and resources in the community helps a youth build skills and a support network.

The successful development of independent living skills relies upon exposure to the community.

State Law Example Promoting Less Restrictive Placements CA Law

Youth cannot remain in group care past age 19 or high school graduation except in limited circumstances.

If they remain in group care due to medical or mental health treatment needs, this can only be temporary and a plan must be in place to prepare for a less restrictive option.

The law requires close scrutiny of the case until a step-down placement is made.

State Case Law ExampleIn the Matter of Daniel M., 631 N.Y.S.2d 470 (1995). Court ordered the child welfare agency to

pay for 4 hours of skilled nursing per day to allow child to be moved from an institution to foster care.

Order supported by: State law given the court plenary power to

order dispositions that serve the child’s best interest, and

Federal and state law that required that the child be placed in the least restrictive environment.

Relevant Laws: Monitoring of Health and Disabilities Needs Federal child welfare law (Fostering

Connections) requires that states have a plan for the ongoing oversight and coordination of health care services for any child in foster care placement, including how needs will be met and continuity of care will be provided following transition. 42 U.S.C.A. §622 (b)(15)(A).

Federal and state child welfare law requires monitoring health and well-being related to case planning and court reviews. 42 U.S.C.A. § 675 (1) (C) & § 675 (5)(D).

Federal law requirement to update health and educational records in the case file and providing youth who age out a copy of their records at no charge. 42 U.S.C.A. § 675 (5)(D).

State Examples: PA Juvenile Court Rules Require that the court make findings and

orders related to any health and disability issues at every court hearing.

Orders can be made for evaluations and treatment.

State Examples: CA Juvenile Court Rules Requires that the court obtain records

and make orders related to special education and/or disability-related accommodations.

Allows orders to be made for assessment for special education eligibility, mental health and early intervention services, and development disability screening.

Provision of Services Medicaid’s EPSDT requirement for youth

under 21 Schedules re: screenings and access to

treatment Medically necessary services are provided States can elect to provide optional services

(some of which can be especially helpful to older youth)

State Juvenile Codes and Case Law Juvenile Court judge has authority to order a

disposition (placement and services) that meet the child’s needs.

Child welfare agency’s obligation to provide services ordered by the court.

Child Welfare Transition Planning Federal and state child welfare laws

require that a transition plan be developed with the youth at least 90 days prior to discharge from care that includes specific plans in several areas, including health, health insurance, housing, education, employment, mentoring, and support services.

The plan must also include information about health care decisionmaking options.

42 U.S.C.A. §675 (5)(H)

Fostering Connections Extension of Care OptionsYouth can remain in the child welfare system past 18 age if they are engaging in at least one of the following:

Completing secondary education or an equivalent credential;

Enrolled in an institution that provides post-secondary or vocational education;

Participating in a program actively designed to promote or remove barriers to employment;

Employed for at least 80 hours per month; or Have a behavioral health or medical

impairment that prevents them from engaging in the above activities.

42 U.S.C.A. 675 §(8)(B)

Affordable Care Act and Foster Youth Beginning January 2014, youth will be

categorically eligible for Medicaid until age 26 regardless of income if: They were in foster care at age 18 and Enrolled in Medicaid

Entitlement to a Free Appropriate Education

under the IDEA Individuals with Disabilities

Education Act (IDEA) Passed by Congress in 1975 Entitlement program Categorical eligibility Broader array of accommodations and

services and heightened due process protections

Accommodations and services formalized in an Individualized Education Plan (IEP)

Special Education Rights “FAPE”: Youth with disabilities are entitled to “free

and appropriate public education” Must be in the least restrictive environment Schools are to seek out youth who may require

special education services and screen them (“child find” obligation).

When eligible for special education, a child/youth is entitled to an IEP until they receive their high school diploma or turn 22, whichever is first

The IDEA does not extend past high school. Youth with disabilities or impairments in post secondary programs may be eligible for an accommodations (504) plan, but no right to specialized instruction and related services.

Transition Planning for Youth with IEPs Must begin at age 16 (some states begin

earlier) Must be informed by age-appropriate

transition assessments IEP and transition goals must be aligned Must have goals in the following areas:

Post secondary education/training Employment Independent/community living

The Transition from High School to Post-Secondary Ed/Training or Work: Tips Ensure that youth who have IEPs have an

educational decision maker. The school has a responsibility under the IDEA

to appoint one. The court may also be able appoint one if

necessary. Ensure that youth with an IEP have a

quality transition plan---this is an underutilized tool.

Ensure that the required Summary of Academic Achievement and Functional Performance has been completed.

The Transition from High School to Post-Secondary Ed/Training or Work Consult with Office of Vocational

Rehabilitation and the special education team about post-school options.

Ensure that the youth is connected with the disabilities services office at any post secondary program so that accommodations plans can be developed. There is no IEP in post-secondary education

programs. The ADA and Rehab Act apply

Resources and Advocacy for Individuals with Disabilities Federally mandated resources. They serve all individuals with disabilities,

not just youth in care. There services are often under-utilized by

youth and youth advocates.

Federal Provision of Advocacy for Individuals with Disabilities Protection and Advocacy Systems (P & As)

are in place in each state for Individuals with developmental disabilities

(PADD) Individuals with mental illness (PAIMI) Individuals with disabilities that do not fall in

the above categories (PAIR) Federal law also provides for advocacy through

Client Assistance Programs (CAP) for individuals receiving services from the Office of Vocational Rehabilitation and Centers for Independent Living (Programs funded by the Rehabilitation Act).

The P & A and CAP System P & As and CAPs

Can provide legal representation and advocacy Investigate complaints, including having

access to facilities To find the P & A and CAP in your state:

http://www.ndrn.org/en/ndrn-member-agencies.html

Meeting Treatment, Service and Placement Needs while in the

System

What services and supports should be put in place for youth with special needs while in the system? Placement should be in the least

restrictive setting. Begin from position that the youth’s needs can

be met in the community with appropriate treatment and services.

If the setting is not currently the least restrictive pull together the youth’s team to determine what it would take to reduce the level of restriction.

What services and supports should be put in place for youth with serious medical needs while in the system? Ensure that the placement and service

providers understand the youth’s disability and are equipped to serve the youth. If they are not, services should be arranged

for or a new provider is needed. Repeated reports of non-compliance may be a

sign that the treatment is not the right fit, another service or provider must be added, or an assessment or evaluation must be done to

determine the nature of the barrier to progress

Promoting Least Restrictive Settings: Strategies Enhanced rates for caregivers of higher

needs youth. Ensure that all medically necessary

services are provided in all settings. Work to develop capacity of providers to

deliver supportive settings that also allow maximum community access and independence. Draw on expertise of adult disability

community where inclusion and integrative settings are accepted driving principles.

What services and supports should be put in place for youth with serious health needs while in the system? Ensure that youth has a medical home Ensure that the youth is receiving all services they are

entitled to to the same degree as their non-disabled peers. Permanency services Independent living services beginning at age 16 Education services in the least restrictive setting

Youth should be in the community school Transition services must also be provided by the

school if the youth has an IEP (special education services)

Planning for the Transition

Some Differences Between Child and Adult Serving Systems Child Welfare/Child Serving Systems Many services are

mandated or considered entitlements.

Child welfare services usually include placement and services.

Juvenile court oversees service provision and can order appropriate services and placement.

Adult Serving Systems/Programs Few services are

mandated or are entitlements.

Placement may not be part of the service array.

No court oversight or entitlement to a lawyer or advocate to ensure provision of services.

A snap shot of the child to adult cliff: Medicaid pre and post age 21 The Early and Periodic Screening,

Diagnostic, and Treatment is Medicaid's comprehensive and preventive child health program for individuals under the age of 21.

It includes periodic medical screening, vision, dental, and hearing services.

It requires that any medically necessary health care service be provided to eligible youth (w/a few exceptions).

Medicaid Coverage After Reaching Age 21 After age 21 the EPSDT requirement no

longer applies.

The types and amounts of treatment and services an adult can receive are much more limited.

Examples of Changes in Coverage At Age 21 Hearing aids are not covered. You can only get 1 wheelchair every 3 years. Stays at psychiatric hospitals are limited to a

certain number of days a year. Home health services, including nurses aids,

physical, occupational, and speech therapists are limited by per month caps.

Preventing Falls from the Cliff: Filling the Transition Gap with Resources Available in Most States Home and Community Based Medicaid

Waivers Supplemental Security Income

Home and Community Based Medicaid Waivers (HCBS) Treatment and services for individuals

with significant cognitive, developmental, and/or physical disabilities so that they can remain in the community.

Services can be paid for that may be limited under MA coverage.

Some waivers provide services and placement while others just provide services.

Many waivers have waiting lists. They are not entitlements. Eligible individuals do not automatically receive services.

HCBS Waivers in Your State To find out the waivers available in your

state see http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/Waivers.html?filterBy=1915 (c)#waivers

Examples of What Waiver Programs Can Provide: PAConsolidated waiver for individuals with intellectual disabilities The waiver can provide:

Nursing Assistive tech. Behavioral supports Companion services Educ. Support services Supported employment Family living/life share (foster home) Community living arrangement (CLA) Home finding Day & residential habilitation Homemaker/chore services Specialized supplies

Autism Waiver in PA Examples of Services Assistive technology Behavioral specialist Community inclusion Residential habilitation Respite Family training Therapies (counseling, occupational, speech and

language) Supported employment Job assessment and finding Temporary crisis services

Independence Waiver for Individuals with Physical Disabilities in PA Examples of Services Assistive tech/specialized equipment Community integration services Education services Supported employment Environmental adaption Home health services/nursing services Personal assistance services Supported employment Respite

What is SSI Cash Entitlement

Guarantees Medical Assistance

Who is Eligible?An individual who: Has very little income and assets, and Has a disability

Criteria for children (under 18) is related to disabilities that interfere with daily functioning

Medical criteria for the evaluation of children under 18 can be found here: http://www.ssa.gov/disability/professionals/bluebook/ChildhoodListings.htm

Criteria for adults is related to the degree to which the disability interferes with the ability to work

Transition Aged Youth and SSI 301 Benefit Continuation Rule

Section 301 of the Social Security Disability Amendments of 1980

Allows benefits to continue even after SSA conducts a review at age 18 and determines that impairments are no longer medically disabling

Individuals must participate in approved programs of vocational rehabilitation that began before SSA determined that their disabilities ended.

Generally SSA must also determine that the completion of this program will reduce the likelihood that the recipient will need to rely on disability benefits.

Continuation in an IEP program is automatically considered an acceptable program that will reduce dependence on benefits. 20 C.F.R. 404.328(b), 416.1338(e)(2).

Can a Youth in Care Receive SSI? Yes, BUT the cost of care is counted as

income for the youth and is deducted dollar for dollar from the SSI benefit.

For many youth, especially those in more expensive placements, receipt of SSI may not make sense while in care, especially for IV-E eligible youth.

Applying for SSI in anticipation of discharge for youth with disabilities, however, is essential!

How can SSI help a youth transitioning out of foster care? It can help prevent homelessness:

The benefit level is more than other cash assistance programs (TANF, General Assistance) and may cover the cost of room and board.

Paired with other services, it may facilitate a solid transition plan. SSI eligibility may be a gateway to other programs and

benefits, such as permanent affordable housing or other specialized programs.

Young adults receiving SSI have access to several programs that incentivize work and education: Youth can work part-time and still receive SSI Social Security has programs to help recipients pursue education

or attempt work without losing eligibility. Youth can receive school scholarships and receive SSI

simultaneously

SSI Basics as a Youth Transitions Who can apply for a youth in care?

If 18, the youth. If under 18, the parent or guardian, but a

caseworker or foster parent can start the application.

When can you submit an application for a youth in care? 3 months before discharge date.

When can you start preparing the documents to submit? As early as possible!

SSI Basics What documentation do you need to

apply? Records of diagnoses, treatment, and how the

disability impacts on the youth’s functioning in the areas of daily living and work.

Important to have “adult” diagnoses. Important to show capacity or lack of capacity

related to work—vocational eval/assessment, work experience in school/IEP.

Important to show level of adaptive functioning.

Providers and IL programs can assist with documenting adaptive functioning.

State Models for Access to SSI: CA

California Legislation AB 1633

(1) development of best practice guidelines(2) counties manage benefits in youth’s best interests(3) assist youth in receiving direct payment of finding payee (4) Inform youth of process of maintaining eligibility as adults

AB 1331

(1) Screen every youth for SSI eligibility between age 16.5 and 17.5(2) Make an SSI application on behalf of likely eligible youth(3) When necessary, forego federal foster care benefits for one month

Sample SSI Application Timeline Under AB 1331

Change aid code &

submit SSI application; Youth

determined eligible for

SSI; benefits placed in suspense

Conduct screening

Return aid

code

CDR conducte

d

Youth discharged,

SSI benefits

taken out of suspense,

and AB 1633 duties

met

Goal is for youth with disabilities to exit care with SSI in place

Not greater than 12 months

16.5

17 1817.5*

18.5

What are the AB 1633 Duties?

1. Manage SSI in best interests of child Maintenance accounts Dedicated accounts

2. Assist youth in receiving direct payment or finding new payee before emancipation

3. Inform youth of SSI/SSP eligibility and process of maintaining eligibility and assist the youth with the continuing disability review process

New Requirements for Youth Participating in Extended Foster Care

Timeline for application remains the same – goal remains having SSI eligibility established at around the time the youth turns 18

Ensuring SSI is in place provides youth maximum flexibility and choice among benefits, services and supports

If youth is approved for SSI but receives federal foster care in excess of SSI – same workaround that is used to allow youth to apply for SSI will be used to maintain eligibility

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Contact Information

Jenny PokempnerJuvenile Law Center(215) 625-0551 jpokempner@jlc.org

Brian BlalockYouth Justice Project DirectorBay Area Legal Aid(510) 250-5201bblalock@baylegal.org