Who pays for child neglect?

By Kelli Kennedy
Associated Press Writer

MIAMI (AP) — A few months after a 10-year-old child was placed with eight other children in a Tampa foster home overseen by a single mom, a 13-year-old boy sneaked into his room and raped him in 2005.

But Hillsborough Kids Inc., a state contractor that placed the boy, says it’s not liable because it subcontracted with another agency which directly cared for the boy. They contend the state Department of Children and Families is ultimately responsible for overseeing its providers, according to court documents.

The lawsuit filed on behalf of the boy has dragged on for three years and is the crux of an ongoing argument between DCF and the contractors it hires to place and monitor foster children: Who should be financially responsible when one of the children is harmed?

That question has major repercussions for both taxpayers and the children. If it’s the state, the contractors would be off the hook and a victimized foster child would be limited by law to receiving $200,000 in damages from the state unless the Legislature approves a higher amount. If it’s the contractors, an injured child could receive whatever damages a court awards up to a $3 million per incident and it would be paid by the contractor and its insurance company.

Child advocates say DCF and its contractors are trying to dodge responsibility and are wasting taxpayer money as discussions drag on. In the end, they say, it leaves abused children with little legal or financial recourse. The state spent more than $740 million this year on foster care, employing 21 contractors to oversee between 9,000 and 10,000 foster children.

“It’s sad and a complete waste of resources when we see each blame the other or duck behind technical defenses while the innocent foster child is suffering and waiting to get help,” said Howard Talenfeld, a child advocate and Broward County attorney.

DCF says it’s spent millions in legal fees on cases it wasn’t responsible for, according to a letter obtained by The Associated Press. Meanwhile, private contractors argue they should have immunity from large judgments just like the state does, despite a statute and contracts that say otherwise. Additionally, providers say they couldn’t afford rising insurance premiums and legal fees brought by an increase in lawsuits

Florida became the first state to fully privatize its child welfare programs in 2005, inking multimillion dollar contracts with providers that DCF says includes the cost of caring for children and enough for insurance if a foster child is harmed.

The Legislature privatized they system after some high-profile cases where government workers lied about visiting foster homes, resulting in the death or disappearance of some children. Backers said privatization would keep children safer and the Legislature removed a cap on how much money abused children could receive by pushing the responsibility onto private insurers.

But providers say that’s unfair and DCF Secretary George Sheldon told the AP he supports giving them sovereign immunity, which could limit judgments, fearing a multimillion dollar verdict could break them. He suggested increasing the cap on the insurance contractors are required to carry and barring judgments over that amount. Any change to the statute would require legislative action. Providers have shopped an amendment to various legislators in the past few years, but little has come of it.

Critics say the state has been lax in enforcing the statute, which defines the relationship as an outsourcing of state jobs, and shouldn’t pay to defend cases where providers are at fault.

The providers “want to be able to take all this money from taxpayers and they don’t want to be accountable. It’s absurd,” said attorney Karen Gievers, who is representing the 10-year-old boy who was raped.

She is also suing the organization for negligence in the case of a foster child, saying its workers ignored signs he was sexually abused while bouncing between more than 43 foster care placements in roughly 14 years.

Providers should have immunity against large judgments in cases where they subcontract with other providers, because they are acting on behalf of the state, just as DCF does when it contracts with them, said Ed Savitz, general counsel for Hillsborough Kids. The state is paying Hillsborough Kids nearly $200 million for a three-year contract to oversee about 2,500 kids.

Attorney Richard Filson says he’s encountered the same argument in nearly every case he’s filed against DCF providers, including a lawsuit against the Sarasota YMCA, claiming it placed a baby with a foster parent who shook the child to death and another alleging a foster parent burned a child’s chest with an iron.

DCF says it’s still named in lawsuits even though local providers were caring for the child.

“DCF didn’t tell them how to behave, we don’t micromanage how they behave but we get sued nevertheless,” said DCF’s general counsel Jerry Curington.

The agency says it has paid millions of taxpayer dollars to settle cases where its contractors were at fault, according to a February letter sent by DCF’s general counsel to a contractor. The agency said it has no system to determine exactly how many millions it has paid out and says it recoups fees from the providers on rare occasion.

Our Kids, which contracts with DCF to care for kids in Miami-Dade and Monroe Counties, has seen an increase in the number of lawsuits since the partnership, CEO Fran Allegra said.

The organization had one lawsuit in 2006, another in 2007 and two lawsuits in both 2008 and 2009. Defending them is costing providers statewide millions a year in premiums, she said. Our Kids pays $250,000 a year in premiums. It receives nearly $500 million from the state for a five-year contract to serve about 3,300 kids.

For two years, Allegra says the organization has been paying legal fees in a case where it had no interaction with the child.

Fifteen-year-old Stephanie Dorismond was found dead in a motel room in 2007. Authorities say a 36-year-old man crushed her skull with a toilet lid.

The girl was removed from her mother’s care after abuse allegations, placed with an uncle she claimed sexually abused her and then placed back with her mother. Allegra says her agency was asked to find housing for the girl and located a spot at a sexual abuse treatment center, but was later told she was being placed back in her mother’s care.

DCF investigated the family several times and an agency report concluded it should have asked a juvenile judge to oversee the family and order services and supervision.

DCF says the agency will always pay when liable, but it often takes lengthy legal proceedings to determine whether DCF or the provider is at fault.

DCF asked providers to add the agency’s name to existing insurance policies, but they balked at the request, saying it gives the department the ability to settle cases without regards for their position and jeopardized their future.

A handful of agencies are refusing to sign the new contract requiring the addition, despite lengthy negotiations.