Another challenge for state’s foster care system

Advocates say a major storm is brewing that could
overwhelm the state’s child foster care system.

The problem is legal liability insurance, or, more
specifically, the lack thereof.

Insurance companies, advocates and providers say, are not
taking on new private foster care agencies as clients and some agencies are
being notified that they’re losing their insurance, including some of the
state’s biggest foster care providers. Some others are being forced into
high-priced, low benefit insurance plans. Many may ultimately find themselves
out of business.

As of the end of February, more than 18,000 kids were in
the foster care system, and only a minority of those are actually being cared
for by the state. Many are placed with private, not-for-profit agencies. The
state generally contracts out services like these, mostly to charities that can
also raise additional funds.

If those providers are forced out of existence, the state
would have to take the foster kids in, and the state simply has no room (or
money) for them. The worst -case scenario would be disastrous.

Advocates say they’ve been warning about this for years
and have been ignored. And then California made big headlines last fall when it
became public that it is facing a foster care “cliff” this coming summer, when
many private agencies will lose their liability insurance coverage. And now, as
one person involved said, “It’s kind of cascading across the country.”

Two identical bills have been introduced to address the
problem, SB1696 by Sen. Laura Fine and HB3138 by Rep. Suzanne Ness. The bills
would grant the foster care agencies and their employees immunity from civil
liability for a two-year period “unless the agency’s acts or omissions
constitute willful and wanton conduct.”

This being Illinois, the politically powerful trial
lawyers have a large seat at the bargaining table. They’re the ones who file
the lawsuits.

“Foster youth in care are among the most vulnerable
within our communities,” said Illinois Trial Lawyers Association Executive
Director Jim Collins in a statement. “In the tragic event that youth in care
are harmed or killed as a result of the negligence of agencies whose charge is
to ensure their safety and well-being, the public policy of Illinois should be
one that preserves access to justice for the affected youth. Proposals that
reduce or erode access to justice for youth victims are as misguided as they
are unjust; if there is an insurance ‘crisis’ that has been inflicted upon
provider agencies, policymakers should focus on an insurance solution.”

And because of that opposition, numerous sources say the
bills will not move forward as currently constructed.

Even so, advocates and lobbyists I’ve spoken with on and
off the record said they’re optimistic.

“I don’t know that there’s agreement necessarily about
what the solutions are,” said Andrea Durbin of the Illinois Collaboration on
Youth, “but people are trying to come together, at least, to figure out what
can we do in the short run and what can we do in the long run.”

Durbin said part of the challenge is the desire to
“provide child victims of abuse, especially sexual abuse, with opportunities for
recourse as adults, and I don’t have any complaints or beefs with that. But it
means, as an insurer, you have a long tail of liability.”

“People want justice,” Durbin said. “They want justice
for that child. And so they end up wanting to punish somebody. And the only
person is the community provider. So, we end up sort of holding the bag for the
systemic failures.”

One idea that’s been floating around is moving the
private foster care providers into the Illinois Court of Claims umbrella. That
court handles lawsuits against the state and it has a $2 million damages cap.
The attorney general’s office has so far resisted the solution, citing staff
capacity. But advocates say that DCFS is rarely sued in the Court of Claims, so
the staff excuse doesn’t hold water.

Rep. Ness, D-Crystal Lake, the bill’s House sponsor, said
she believes the negotiators “need to come up with a short-term solution to
give the state some more time to look at longer-term solutions. I don’t think
that this is a DCFS problem only. I think it’s also an insurance problem.

Ness said negotiators must find a way to come to an
agreement so “these kids don’t have to be disrupted again and placed in other
homes because the agencies they’re with cannot get insured. We can’t let that
happen.”

I couldn’t agree more.

This article appears in Opioid overdoses increase.