Federal Court Mandates Raise in Foster Care Maintenance Rates
by Regina Deihl
After three and a half years of litigation, the US District Court in San Francisco ordered the California Department of Social Services (CDSS) to “immediately” implement new, higher reimbursement rates for California foster parents.1 The court’s order, issued by Judge William Alsup, was the outcome of a lawsuit filed in October 2007 by three California caregiver organizations: the California State Foster Parent Association, the California State Care Providers Association, and Legal Advocates for Permanent Parenting.
California foster parents expressed excitement and relief at the court’s decision.
“We are thrilled that the court understood our concerns and ruled in our favor. This will make a huge difference for our children and families,” said San Diego foster parent Patty Boles, who runs a support network for foster parents and children.
Shauna Mullins, a San Mateo County foster and adoptive parent, said, “This raise in reimbursement rates will allow us to provide children with items other kids take for granted. Most children come into foster care with little or nothing. Many of them have never had a new pair of shoes or a chance to play on a sports team or participate in regular childhood activities. While we are ‘not in it for the money,’ the new [reimbursement] rates will allow us to give them a normal childhood.”
The parents also expressed appreciation to both the law firm Morrison & Foerster and the Children’s Advocacy Institute for their work on the case.
In their legal complaint, plaintiffs had alleged that California’s reimbursement rates for county-licensed foster parents failed to meet the requirements of the federal Child Welfare Act.2 The Act requires states that accept federal foster care funding to “cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, reasonable travel to the child’s home for visitation, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement.”3
Foster parents in a number of counties report that many families do not come forward to foster children because they cannot afford to, especially during the state’s ongoing recession.
“As volunteers, many of us cannot afford to subsidize the care of the state’s children, even though we love the kids,” said Lois Raap, an attorney and longtime Santa Clara County foster parent. “Raising children is an expensive proposition, and we have a hard time stretching our budgets to meet their needs. The number of foster homes statewide has dropped dramatically over the past decade, and finding an appropriate local home for a child is a challenge. In some counties, there has been a drop in county-licensed homes by more than 50 percent, and placements for teens are especially hard to find.”
On October 21, 2008, the District Court issued its initial order. Relying on Missouri Child Care Association v. Martin,4 the court explained that “the Act’s mandate with respect to foster care maintenance payments includes both a procedural and a substantive component: procedurally, the state must take the enumerated cost factors into account, and substantively, the state’s rates may not fall too far out of line with the cost of providing those items.”5 The District Court also noted that “defendants offer no evidence suggesting that California’s rate schedule, when originally enacted or at any time thereafter, was in any way based on the cost categories.”6 The court was, however, reluctant to order the state to utilize a specific methodology for determining the rates, leaving it to the state to determine a methodology for covering the enumerated costs.7
In response to the District Court’s order, CDSS appealed the case to the 9th US Circuit Court of Appeals, raising the threshold question of whether the foster parents had a private right of action to enforce the federal requirements. The 9th Circuit denied the appeal, holding that “[t]he district court correctly permitted the Foster Parents’ action to go forward because the [Child Welfare Act] grants foster care providers a federal statutory right to payments that cover certain enumerated costs, a right redressable under § 1983.”8
After its appeal was denied, CDSS complied with the District Court’s order by setting new reimbursement rates for foster parents in California. The new rates are $134 to $176 per month higher than the old rates, depending on the age of the child. Below is a chart setting out the new rates, which took effect on May 27, 2011.
0 – 4
5 – 8
9 – 11
12 – 14
15 – 19
Foster parents and their advocates expect the case to serve as a model for efforts to raise foster care maintenance rates in other states.
Regina Deihl is the Director of Legal Advocates for Permanent Parenting (LAPP), a California non-profit assisting foster parents, kinship caregivers, and adoptive families. LAPP was a plaintiff in California State Foster Parent Assn., et al v. Wagner et al. Ms. Deihl is a national expert on improving the lives of foster children by supporting their caregiver families.
- Order Granting Plaintiff’s Second Motion For Further Relief, California State Foster Parent Ass’n v. Wagner, (No. C 07-05086) (May 27, 2011).
- 42 U.S.C. § 670 et seq.
- See 42 U.S.C. §§ 672(a), 675(4)(A).
- Missouri Child Care Ass’n v. Martin, 241 F. Supp. 2d 1032 (W.D. Mo. 2003).
- California State Foster Parent Ass’n v. Wagner, C 07-05086, 2008 WL 4679857 (N.D. Cal. Oct. 21, 2008), overturned on other grounds.
- California State Foster Parent Ass’n v. Wagner, 624 F.3d 974 (9th Cir. 2010).