In 2013, the Florida Legislature passed Senate Bill 1036 authorizing young adults in foster care, who have not reached permanency before 18 years of age, to remain in care until 21 years of age, or age 22 years of age in the case of a young adult ...

 

DEPARTMENT OF CHILDREN AND FAMILIES

Family Safety and Preservation Program

RULE NOS.:RULE TITLES:

65C-41.004Case Management Services For Young Adults in Extended Foster Care

65C-41.005Judicial Interaction

65C-41.006Discharge from Program

PURPOSE AND EFFECT: In 2013, the Florida Legislature passed Senate Bill 1036 authorizing young adults in foster care, who have not reached permanency before 18 years of age, to remain in care until 21 years of age, or age 22 years of age in the case of a young adult with a disability. This legislation substantially amended the following sections of the Florida Statutes: 39.013, 39.6013, 39.701, 409.145, 409.1451, 409.175, and 409.903 and created Sections 39.6035 and 39.6251, Florida Statutes. These changes necessitate new rule development. The new rule titles will be as follows: 65C-41.004, Transition and Case Plans; 65C-41.005, Discharge from Program; 65C-41.006, Appeals.

SUMMARY: The Department of Children and Families intends to implement Senate Bill 1036 in 65C-41, F.A.C., Extension of Foster Care. The new rules will require transition and cases plans; set forth the conditions for discharge from extended foster care; and provide an appeal procedure for young adults determined to no longer be eligible for, or denied readmission into, extended foster care.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department used a checklist to conduct an economic analysis and determine if there is an adverse impact or regulatory costs associated with this rule that exceeds the criteria in Section 120.541(2)(a), F.S. Based upon this analysis, the Department has determined that the proposed rule is not expected to require legislative ratification.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 39.0121, 409.1451, F.S.

LAW IMPLEMENTED: 39.6012, 39.6035, 39.6251, 39.701, 409.1451, F.S.

A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: Wednesday, March 25, 2015, 9:00 am – 12:00 pm (ET)

PLACE: (1) Attending in person at: Florida Department of Children and Families, 1317 Winewood Boulevard, Bldg. 1, Secretary’s Large Conference Room, 2nd Floor, Tallahassee, FL 32399-0700

(2) Via conference call: Dial 1-888-670-3525, Code: 314 879 3079 #

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Jodi Abramowitz, [e-mail] or 850-717-4189.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

65C-41.004 Transition and Case Plans. Case Management Services For Young Adults in Extended Foster Care

(1) Transition planning.

(a) Transition planning must begin within 180 days of the young adult’s 17th birthday, or as soon as possible within 30 days of being placed into licensed foster care after that date. The transition plan must be completed at least 60 days prior to the young adult’s 18th birthday, or as soon as possible for any young adult who enters licensed foster care after that date, and no later than the last judicial review hearing during the young adult’s minority.

(b) All young adults with diagnosed disabilities or mental health needs shall be provided with an equal opportunity to participate in transition planning. A young adult with a diagnosed disability or mental health need may need additional support; therefore, the designated staff shall work in consultation with all of the young adult’s service providers.

(c) If the young adult intends, after discussion with the case manager, to opt out of extended foster care, the case manager shall provide the young adult the form “My Decision to Opt Out of Foster Care,” CF-FSP 5375, January 2015, which is hereby incorporated by reference and available at www.dcf.state.fl.us/dcfforms/Search/DCFFormSearch.aspx, or any other form that addresses all components of CF-FSP 5375.  Upon receipt of the completed and signed form, the case manager shall:

1. Provide the young adult a copy of the completed form; and

2. Discuss with the young adult the options for enrollment in Aftercare or Postsecondary Education Services and Support (PESS).

(d) In the event the young adult refuses to participate in transition planning; fails to designate a qualifying activity;  fails to live in an approved living arrangement; refuses to sign the transition plan after completion; or opts out of extended foster care, or the case manager determines that the young adult is ineligible due to the young adult’s placement as a child other than in licensed foster care, the case manager shall provide a notice, “Notice of Discharge from Extended Foster Care,” CF-FSP 5376, May 2014, which is hereby incorporated by reference and available at www.dcf.state.fl.us/dcfforms/Search/DCFFormSearch.aspx, or any other form that addresses all components of CF-FSP 5376.

(2) Transition and Case Plans. Each young adult in extended foster care must have both a transition plan and a case plan developed by the case manager in consultation with the young adult.

(a) Transition Plan. The provisions of the transition plan form the basis of the young adult’s case plan and delineate the young adult’s short-term and long-term goals, the young adult’s obligations, and the obligations of the foster parent, the case manager, and any other service provider.

1. The transition plan shall be coordinated with the case plan; however, a change in the transition plan does not require an amendment to the case plan or a return to court unless there is a substantial change in circumstances, a change in goal, or the young adult requests a hearing.

2. The transition plan shall include an agreement by the young adult to comply with the provisions to engage in one or more of the qualifying activities required by Section 39.6251(2), F.S., to participate in case management activities and judicial review proceedings as delineated in Rule 65C-41.003, F.A.C., and to remain in the approved living arrangement as detailed in the transition plan. The agreement shall also include a provision that the young adult shall sign necessary releases to enable the case manager to verify participation in the qualifying activities.

3. The transition plan shall address allowance.

a. Whether an allowance will be provided to the young adult and the amount of the allowance shall be discussed in consultation with the young adult and foster parent or designated staff.

b. The foster parent or designated staff shall use a reasonable and prudent parent standard to decide whether an allowance will be provided and the amount.

c. If the young adult is in licensed out-of-home care, the foster parent or caregiver shall make the ultimate decision.

d. If the young adult is in non-licensed care, designated staff shall make the ultimate decision.

e. The decision and rationale shall be supported by documentation in the young adult's case plan and transition plan.

4. If the young adult is a parent, the transition plan shall address the young adult’s goals and needs in his or her role as a parent, as well as any referrals to service providers.

5. Amending the Transition Plan.  The transition plan may be amended at any time, without court approval, whenever the young adult and the designated staff agree. The plan shall be periodically reviewed and must be updated when necessary prior to each judicial review hearing.

6. Portability.  The services provided under this rule are portable across county lines and between lead agencies.

a. The service needs that are identified in the original or updated transition plan shall be provided by the lead agency where the young adult is currently residing but shall be funded by the lead agency that initiated the transition plan.

b. For all young adults in foster care who are on a living arrangement out-of-state or visiting out-of-state, the lead agency with primary case management responsibilities shall provide maintenance payments; case planning, including a written description of all services that will assist the young adult in preparing for the transition from care to independence; as well as regular case reviews that conform with all federal scheduling and content requirements.

(b) Case Plan.  The young adult must have a case plan while in extended foster care.

1. The case plan must include:

a. A description of the qualifying activity or activities in which the young adult will engage to maintain eligibility for remaining in extended foster care. If the young adult has chosen an alternate or secondary qualifying activity, it shall be included in the case plan;

b. A description of the programs and services necessary to assist the young adult to successfully participate in the chosen qualifying activities, and a designation of who is responsible for providing these programs and services, and who is responsible for paying the costs of such programs and services;

c. A description of the young adult’s long-term goals for living independently and the services to be provided to assist the young adult in meeting those goals; and

d. A designation of the permanency goal of transition from care to independent living.

2. The young adult’s case plan shall be developed as part of the initial transition planning process, and shall include the young adult’s long-term goals.

3. The case plan shall be reviewed with the young adult prior to each judicial review hearing, and shall be updated as necessary.

(3) Provision of Services.  The community-based care lead agency must ensure that the young adult is provided necessary services.  Necessary services include:

(a) Those services, including participation in programs, that are identified in the young adult’s case plan.

(b) Supervision of the young adult at a level that is consistent with the young adult’s individual educational and health care needs, permanency plan and independent living goals as assessed with input from the young adult.

(c) Life skills instruction, counseling, educational support, employment preparation and placement, and development of support networks that are consistent with the young adult’s assessed needs and interests, and with the goals identified by the young adult in the transition plan and case plan.

(d) Regular case management reviews, at least monthly, but more often as necessary and as agreed to by both the case manager and the young adult.

(e) Any additional services that are necessary to assist the young adult in complying with the conditions of extended foster care.

(4) Prior to each judicial review hearing, the designated staff shall assist the young adult in preparing for the hearing by jointly developing the report, which addresses the young adult’s progress in meeting the goals in the case plan. The report must include information on the young adult’s progress on the case plan and the transition plan, as applicable, and shall propose modifications as necessary to further the young adult’s goals.

(5) Procedures for a Young Adult Wishing to Remain in Extended Foster Care until the 22nd birthday.  A young adult must be actively participating in extended foster care on his or her 21st birthday, and have a documented disability, in order to remain in care until his or her 22nd birthday.

(a) The case manager for a young adult who has a documented disability shall discuss with the young adult and  any designated decision-making authority for the young adult,  within 180 days of the young adult’s 20th birthday, whether the young adult wishes to remain in extended foster care after his or her 21st birthday.  This discussion shall occur during the transition planning for possible discharge based on reaching the maximum age for participation.

(b) If the young adult who has a documented disability requests discharge from, or otherwise opts out of continuing in extended foster care beyond the 21st birthday, the case manager shall provide the form “My Decision to Opt Out of Foster Care,” CF-5375, incorporated in paragraph (1)(c) of this rule, or any other form that addresses all components of CF-FSP 5375, and specify that the young adult has requested discharge from the program on the 21st birthday.

Rulemaking Authority 39.012, 39.0121 FS. Laws Implemented 39.6012, 39.6035, 39.6251, 39.701,  FS. History–New._______.

 

65C-41.005 Discharge from Program. Judicial Interaction

(1) A young adult shall be discharged from the extended foster care program when the young adult is no longer eligible to participate in the program.

(a) A young adult shall be discharged from extended foster care when categorical eligibility ends on the earliest of the dates that the young adult:

1. Reaches 21 years of age or, in the case of a young adult with a disability, reaches 22 years of age;

2. Knowingly and voluntarily withdraws his or her consent to participate in extended foster care. Withdrawal of consent to participate in extended foster care shall be verified by the court pursuant to Section 39.701, F.S.;

3. Achieves Permanence. Permanence due to a voluntary return by the young adult to his or her legal parent after the age of 18 disqualifies the young adult from participating in extended foster care during the time the young adult is living with that parent. However, in the event that living arrangement fails, the young adult will no longer be considered to have achieved permanence, and the young adult is again eligible for extended foster care.

(b) Except as provided for in subparagraph (1)(c) of this rule, a young adult shall be discharged from the extended foster care program for failure to participate in one or more qualifying activities set forth in Section 39.6251(2), F.S., unless that failure is based on a documented disability.

(c) A young adult may not be discharged from the extended foster care program for ceasing to participate in one or more qualifying activities set forth in Section 39.6251(2), F.S., if he or she provides within 20 days of ceasing participation:

1. Documentation of efforts to resume a qualifying activity; or

2. Documentation of a condition that limits participation, pursuant to Section 39.6251(2)(e), F.S.

(d) A young adult may be discharged from the extended foster care program for failure to reside in the approved living arrangement.  The length of the young adult’s absence from the approved living arrangement that supports the determination that the young adult is not residing in the approved living arrangement shall be determined during transition planning and documented in the transition plan.

(e) A young adult may be discharged from the extended foster care program for failure to actively participate in case management and supervision provided by the case manager.

(2) A young adult may elect voluntary discharge from the extended foster care program. When a young adult indicates to a case manager or designated staff that he or she wishes to leave the program, the case manager or designated staff shall provide the young adult with the form “My Decision to Opt Out of Foster Care” CF-FSP 5375, January 2015, which is incorporated by reference in Rule 65C-41.004, F.A.C., or any other form that addresses all components of CF-FSP 5375, and ask the young adult to complete the form and return it to the case manager.  The case manager shall inform the young adult of other available services in Postsecondary Education Services and Support and Aftercare Services. When a young adult elects voluntary discharge from extended foster care, or when the young adult is discharged, the case manager shall request that the Children’s Legal Services attorney file a motion to terminate jurisdiction and schedule a court hearing on that motion.

(3) Before the case manager may discharge a young adult from extended foster care, other than when the young adult voluntarily leaves the program, the case manager must provide the young adult with a written notice that describes all reasons for the discharge and the form “Due Process Rights for Young Adults Formerly in Foster Care,” CF/PI 175-74, August 2014, which is incorporated by reference in paragraph 65C-41.006(2)(d), F.A.C., or any other form that addresses all components of CF/PI 175-74.

Rulemaking Authority 39.012, 39.0121 FS. Law Implemented 39.6251, 39.701, 39.013 FS. History–New______.

 

65C-41.006 Appeals. Discharge from Program

(1) The Department, the community-based care lead agency and its contracted service provider staff shall treat all young adults fairly and afford them due process. A young adult applying for or receiving extended foster care services has the right to receive written notice of adverse actions by the Department or its contracted service provider and to resolve issues about eligibility by meeting with representatives of the Department or its contracted service provider or through the fair hearing process. The fair hearing process is available to any young adult who is determined to no longer be eligible for extended foster care, or who has been denied readmission into extended foster care.

(2) Notice of Adverse Action. The community-based care lead agency shall give timely and adequate written notice to the young adult regarding any decision to deny readmission or terminate participation in extended foster care.

(a) The notice shall be provided on the form “Notice of Discharge from Extended Foster Care,” CF-FSP 5376, incorporated by reference in 65C-41.004(1)(d), F.A.C, or on any other form that addresses all components of CF-FSP 5376 and meets the requirements set forth in subparagraph (2)(c) of this rule.

(b) The notice shall be considered timely:

1. When the notice concerns an application for readmission into care, if it is delivered to the young adult within 10 business days of the lead agency receiving the application.

2. When the notice concerns any decision to discharge a young adult from participation in extended foster care, if it is delivered to the young adult at least 30 calendar days before the action described in the notice becomes effective.

(c) The notice shall be considered adequate if it explains in the primary language of the young adult:

1. the proposed action;

2. the reasons for the proposed action;

3. the young adult’s right to request a fair hearing;

4. the person whom  the young adult would contact to request a fair hearing or for additional information about the decision, including the contact’s name, telephone number, e-mail address and mailing address; and

5. in bold type, the timeline for requesting a fair hearing.; The notice must specifically include the following information, in bold type:

a. that the request for a fair hearing must be sent to the case manager no later than 30 calendar days from the date the notice was received by the young adult; and

b. that the request for a fair hearing must be sent no later than 10 business days after the notice is received for the young adult to continue to participate in the program pending the completion of the fair hearing process.

6. The notice also must inform the young adult that if the last day to request a fair hearing falls on a weekend or holiday, the request will be considered timely if it is sent the first business day after the deadline.

(d) A “Request for Fair Hearing on Application Denial or Discharge from the Extended Foster Care Program; or on Denial, Termination, or Reduction of Postsecondary Education Services and Support  or Aftercare Services Benefits,” CF-FSP 5380, August 2014, incorporated by reference, and “Due Process Rights for Young Adults Formerly in Foster Care,” CF/PI 175-74, incorporated by reference in 65C-41.005(3), F.A.C, or any other forms that address all components of CF-FSP 5380 and CF/PI 175-74, shall be attached to the notice. Forms CF-FSP 5380 and CF/PI 175-74 are available at www.dcf.state.fl.us/dcfforms/Search/DCFFormSearch.aspx.  45 C.F.R. §205.10,  July 1992, is incorporated by reference and available at http://www.gpo.gov/fdsys/granule/CFR-1997-title45-vol2/CFR-1997-title45-vol2-sec205-10/content-detail.html.

(e) The notice shall be sent by certified mail or provided to the young adult by hand delivery.  The notice shall also be sent via e-mail if the young adult has provided an e-mail address. If the young adult has provided a telephone number, designated staff shall call the young adult and advise him or her that the notice has been sent and also is available for pickup at the community-based care office. Documentation of hand delivery and e-mail shall be made in the young adult’s file contemporaneously with the hand and e-mail delivery. The certified mail receipt shall also be placed in the young adult’s file.

(3) Request for Fair Hearing.

(a) A young adult shall have 30 calendar days from the date of receipt of the notice of adverse action to request a fair hearing.  If the young adult requests the fair hearing within 10 business days of the date of receipt of the notice of adverse action terminating participation in extended foster care, then the young adult shall remain in extended foster care pending the resolution of the fair hearing.

(b) The request for a fair hearing may be made orally or in writing.

1. The form “Oral Request for Fair Hearing,” CF-FSP 5381, August 2014, incorporated by reference, or any other form that addresses all components of CF-FSP 5381, shall be used by the case manager or designated staff to document oral requests for a fair hearing.  This form is available at www.dcf.state.fl.us/dcfforms/Search/DCFFormSearch.aspx.

2. Written requests may be prepared by the young adult on the form “Request for Fair Hearing on Application Denial or Discharge from the Extended Foster Care Program; or on Denial, Termination, or Reduction of Postsecondary Education Services and Support PESS or Aftercare Services Benefits,” CF-FSP 5380, incorporated in subsection (2)(d) of this rule, or any other form that addresses all components of CF-FSP 5380, or in any other manner the young adult chooses.

(c) The  request for a fair hearing is made on the date the young adult sends a written request for fair hearing by

U. S. Mail or e-mail, or hand-delivers the written request to the staff member of the agency (or his or her  designee)

who sent the notice of adverse action. An oral request for a fair hearing is made on the date the young adult speaks with his or her case manager or designated staff, the community-based care agency providing him or her with independent living services, or the Office of Appeal Hearings in Tallahassee. If the deadline to request a fair hearing is a Saturday, Sunday or holiday, the request shall be timely if it is made on or before the first business day after the weekend or holiday.

(4) Transmittal of Hearing Request to the Department or Its Contracted Service Provider.

(a) Within one (1) business day of receiving the young adult’s request for a fair hearing, staff shall send the request for a fair hearing and notice of adverse action by facsimile or e-mail transmission to the legal representative for the Department and the Office of Appeal Hearings of the Department of Children and Families.

(b) If a request for a hearing is not sent by the young adult within the stated timeframes, the request shall be forwarded to the Florida Department of Children and Families’ Office of Appeal Hearings with a notation that the request was late being sent to the lead agency by the young adult.

(c) Staff shall forward a copy of all documentation supporting the decision regarding participation in extended foster care to the Regional Legal Counsel and the legal representative for the Department within three (3) business days of receipt of the young adult’s request for fair hearing.

(5) Additional Local Preparation for Fair Hearings.

(a) The staff person receiving the request shall, within five (5) business days, prepare copies of the young adult’s complete extended foster care file, and copies of the young adult’s case file records from his or her dependency case file during the young adult’s 17th year of age to provide to both the young adult and the legal representative for the Department or its contracted service provider. Staff shall provide the complete file to both the young adult and the legal representative for the Department or its contracted service provider, whether or not a request has been made.

(b) The designated staff responsible for the young adult’s extended foster care case (the case manager in the county where the young adult’s participation originated) shall coordinate and participate in the fair hearing, even if the hearing takes place in a different county or region. The fair hearing shall take place in the county in which the young adult lives.

Rulemaking Authority 39.012, 39.0121, 409.1451 FS. Law Implemented 39.6251, 409.1451 FS. History–New____.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Kirk Brown

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Mike Carroll

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: September 10, 2014

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: August 15, 2013