Bills seek to codify court ruling on services for developmentally disabled foster children

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ANNAPOLIS – Cross-filed bills in the General Assembly again seek to codify and clarify a 2015 Court of Appeals decision that found juvenile courts have the authority to order transition care for individuals with developmental disabilities as they age out of the foster system.

House Bill 279 and Senate Bill 272 are identical to legislation that passed the House of Delegates last year but stalled in the Senate. The bills would authorize a juvenile court to direct the provision of services needed after the court’s jurisdiction ends when the child turns 18 or, in special cases, 21.

The Court of Appeals affirmed that authority in the case of Dustin R., who was in therapeutic foster care from age 2 and faced “falling off a cliff” when he turned 21 in 2013 absent the juvenile court’s order, Mitchell Y. Mirviss, who represents Dustin, told the House Judiciary Committee on Thursday.

The ruling did not, however, extend to those designated as a Child in Need of Assistance (CINA), only those who are under an order of guardianship whose parents have had their rights terminated. The legislation seeks to add parity for developmentally disabled children who are receiving services from the state regardless of the status of their parents’ rights.

“What you have is a very lean bill that does one thing and one thing only: it plugs the gaps (in the law),” said Mirviss, a partner at Venable LLP in Baltimore. “These children are the highest-risk people in the state.”

Last year, 32 developmentally disabled children aged out of youth services and into adult services with the state, Mirviss said, which should have a “de minimus” impact on the Department of Health and Mental Hygiene’s budget.

Mirviss disagreed with the Fiscal and Policy Note prepared by the Department of Legislative Services, which estimated millions of dollars in costs to the state as a result of the bill.

Bureaucratic process

Mirviss said it can be difficult to get a plan in place in time for the child to transition and if DHMH disputes the level of services required, the plan goes through a hearing process.

Margaret Holmes, Dustin’s attorney from Maryland Legal Aid, said the individuals impacted by the bill are extremely vulnerable and need their services to continue as they transition to the adult system.

“Dustin was the most medically-fragile foster child in the state,” she said.

Dustin has an intellectual disability, severe seizure disorder, scoliosis, osteoporosis, cerebral palsy and other physical issues as well as the mental capacity of a six-month old and an inability to speak, according to the Court of Appeals’ December 2015 opinion. He also requires a full-time nurse.

During the process of planning his transition out of guardianship and the foster care system when he turned 21, his advocates argued he should continue receiving funding from DHMH to provide “life-saving services” and, after a judge ordered that funding, the agency appealed. The Court of Appeals held juvenile courts can order services to continue for seriously disabled children under the guardianship of the state so long as the order is made before the child turns 21.

DHMH supports the bill with amendments that more clearly define some of the terms, including the class of CINA designees it applies to, according to Valerie Roddy, deputy director of fiscal operations for the agency.

There is a planning process for a child’s transition, according to Roddy, but DHMH is a “large service-delivery system” that does not always move as quickly as needed.”