The sponsor of Florida's 2013 law extending foster care to age 21 is working on a legislative fix to resolve confusion about which state agency is responsible for severely disabled young adults in the program.
Sen. Nancy Detert, R-Venice, is meeting with children's advocates and service providers about the issue, which involves whether the state Agency for Persons with Disabilities or the Department of Children and Families should pay for disabled people in foster care between ages 18 and 22.
"There's a fear that (the Agency for Persons with Disabilities) would dump kids in extended care who need care that foster-care groups aren't used to giving," Detert said. "There's just a lot of little problems that need to be sorted out as to who's in charge of handicapped kids in extended foster care."
The bill named for her, the Nancy C. Detert Common Sense and Compassion Independent Living Act, went into effect on Jan. 1, extending from 18 to 21 the age a young person can opt to stay in foster care. For those with major disabilities, it's 22.
Before the law, representatives of severely disabled foster kids turning 18 could cite impending homelessness as an emergency that would qualify the young adults for services through what is known as the Agency for Persons with Disabilities' Medicaid "home- and community-based" services waiver.
But since the law went into effect, many say, the Agency for Persons with Disabilities has taken the position that children aren't homeless if they can choose to stay in foster care --- which is funded by the Department of Children and Families through the privatized community-based care agencies.
"At that point, APD started saying, 'These are not homeless youth anymore,' " said Janice Thomas, assistant secretary for child welfare at the Department of Children and Families. "Now they're not homeless, because we're obligated to pay for extended foster care for them. I don't want to say (APD) refused. It's more like they say they're not eligible because they're not homeless."
However, Denise Arnold, the Agency for Persons with Disabilities' deputy director of programs, said a wide array of services --- including nursing, personal care and various therapies --- is available to children in foster care under a different Medicaid program, which involves enrolling Medicaid beneficiaries in managed-care plans.
"Anything that a child --- defined as under 21 --- would need comes from the state plan if they're Medicaid-eligible," she said. "In the case of these foster kids, they are Medicaid-eligible."
Arnold said that because services for foster kids are available elsewhere, federal law bans the agency from duplicating them under the home- and community-based waiver.
"Once they reach age 21 and older, if they're an APD client, we are always picking up what service ended in the state plan that now needs to be continued," Arnold said. "And we always pick that up under the waiver. Because the waiver has similar services, but the waiver is designed to not duplicate what else is also available."
But Gerry Glynn, chief legal officer at Community Based Care of Central Florida, disagreed. He said many children with severe disabilities go into foster care only because the Agency for Persons with Disabilities hasn't done its job.
"If the families with whom these children live had the support of the Agency for Persons with Disabilities, many of them never would have come into foster care," he said. "But it was due to a failure of (APD) to have the resources to be able to serve these families that many of these families felt no other choice but to give up their children to the state and place them in foster care."
Foster care was extended to give kids who had been removed from their homes a better chance to prepare for independence, Glynn said, but the disabled foster children whose services are at issue will never be able to live independently --- or to make decisions about their care.
"These youth cannot live independently, thus they do not qualify for extended foster care," he said.
Advocates say they're considering a lawsuit to get the services delivered.
"These transition years wouldn’t even be a discussion if APD fulfilled the statutory mandate to make kids in foster care the number-two priority and moved them all off the wait list when they were under 18," said Robin Rosenberg, deputy director of the advocacy group Florida's Children First.
Attorney Paolo Annino, who leads the Children's Advocacy Center at the Florida State University College of Law, is representing one disabled foster child and points to the case of another, Amber Russell, who he represented in 2006.
"(The 1st District Court of Appeal in Tallahassee) said that children who are abused, neglected or abandoned are not to be penalized just because they're foster-care children and not receive the same type of services that all other children with disabilities would receive," Annino said.
He also noted that children in foster care have a "much higher rate of disabilities than the general population" and are 40 to 60 percent more likely to become homeless.
Detert said she's still gathering information and hadn't taken a position on how the new law might be altered. She said it had been well received by providers overall, especially given that "it is an extra expense" for them.
"It's certainly a topic for discussion for the upcoming session, and that's always true with big changes," Detert said. "You make the big change, and then you start hearing from people saying, 'This doesn't work for us.'"