Master Trust/“Client Trust”

1. Master Trust/“Client Trust” Legal Fiduciary Obligations And Necessary Social Work

2. FIRST RULE OF MASTER TRUST Who’s money is this? The money in Master Trust is the child’s money! It is not “our” money. Deborah Schroth, 11/6/2008

3. Antoine – see facts from final slide. • Fee Waiver? Why or why not? • If yes, what are the considerations? • Age? • Likelihood to age out? • Needs? • Life Insurance from the VA? • How much can Antoine accumulate in his client trust account? • Why do you give this answer? Deborah Schroth, 11/6/2008

4. What is Master Trust • Master Trust is a legal document, on file in the Circuit Court of the Leon County, -- with a copy maintained by the Department’s Agency Clerk -- that authorizes the creation of trust accounts for children in foster care • has multiple sub-accounts within it • each child has his or her own separate accounting • The individual “accounts” within the Master Trust are also called the “client trust accounts.” Deborah Schroth, 11/6/2008

5. Do all Children in Foster Care have Master Trust • No, only children who receive some sort of unearned income, or assets, will have a Client Trust Account created pursuant to the Master Trust agreement. • Examples include children receiving monthly benefits from the Social Security Administration (the majority) or an annuity, or children who have received a one-time payment, such as a court judgment. Deborah Schroth, 11/6/2008

6. Legislative Purpose & Fiduciary Duty Section 402.17, F.S. provides responsibility to the Department and its contracted agents to: • hold in trust and administer money and property of children in care. • act as trustee of the children’s money and property in accordance with the usual fiduciary standards applicable generally to trustees, and • protect both the short term and long term interests of the children for whom a Master Trust account has been established Deborah Schroth, 11/6/2008

7. Who Administers this Administration varies by CBC. • In some areas, this is administered by local DCF Fiscal office, e.g., all NE Region except for Gainesville, which is administered by Partnership for Strong Families. • In other areas, this is administered by the CBC, e.g., Big Bend Community Based Care handles the trust fund in much of the NW Region. Do you know who to contact? Deborah Schroth, 11/6/2008

8. Who Administers this What to do? • If you don’t know, contact your local DCF Fiscal office to find out who administers Master Trust for your kids, and secure contact information. • Make contact with the Fiscal Agent to find out exactly how the administrator handles the different issues raised in this presentation. Deborah Schroth, 11/6/2008

9. Does each child have a separate bank account? No, just separate accounting. • DCF maintains one account for all its foster children within each district/region. • If CBC administration, one account for each CBC. • There are no individual bank accounts . . . • For large sums, should request permission for a separate investment from the court. Deborah Schroth, 11/6/2008

10. Source of Funds – Necessary Info It is necessary to know the basics about the child’s income stream in order to know how to correctly administer the child’s trust account. Initial questions: • Was there a one-time payment, or are there recurring payments? • What is the source of the payment? • Government benefits? These will usually be recurring. • Life insurance proceeds? • Annuities – annual or monthly? • Court judgment or settlement award? Deborah Schroth, 11/6/2008

11. “Public Benefits” Possible public funds: • Social Security Administration (SSA) • Survivor’s = Death of a parent or guardian • SSDI = Disability of a parent or guardian • SSI = the Child’s own disability • Combination of SSI and either SSDI or Survivor’s • Issue of knowing determinations and possible appeal of a denial of an SSI application Deborah Schroth, 11/6/2008

12. Social Security Benefits SSA administers different benefit programs: • Insured Benefits • Survivor’s Benefits • Social Security Disability Insurance (SSDI) • Welfare Benefits • Supplemental Security Income (SSI) Deborah Schroth, 11/6/2008

13. SSA Survivor’s Benefits • These are benefits that are paid out to surviving family members of a deceased insured worker. • Unmarried childrenwho are younger than age 18 (or up to age 19 if they are attending elementary or secondary school full time) also can receive benefits. Additionally, children can receive these benefits at any age if they were disabled before age 22 and remain disabled – therefore, need to consider applying to SSA for “Disabled Adult Child’s” benefits before aging out of care. • Even after TPR or a subsequent adoption, the child still can receive benefits Deborah Schroth, 11/6/2008

14. SSA Survivor’s Benefits • The benefit amount is based on the earnings of the person who died. The more the worker paid into Social Security, the greater the child’s benefits will be. • This money will accumulate in the child’s Master Trust, with funds spent as appropriate. The SSA places no limit on how much money the child can accumulate from this benefit. Deborah Schroth, 11/6/2008

15. SSA Disability Benefits • Disability benefits are paid through two sources: • SSDI - an insurance program for workers who have paid into the system, and • SSI – a welfare program for aged, blind or disabled persons with limited income and assets. Deborah Schroth, 11/6/2008

16. SSDI – Insurance Benefit • Children may receive SSDI benefits when an insured parent or guardian is disabled and receives SSDI herself. • The amount of the benefit depends on the parent’s length of covered employment and total number of beneficiaries. • Again, no limit to amount child may accumulate in the master trust account. Deborah Schroth, 11/6/2008

17. SSI: Supplemental Security Income • SSI is a welfare program for persons who are aged, blind or disabled. Children may participate in this program. • As a welfare program, there are maximum income and asset limitations. What is the asset limit? There must be more careful oversight of children in care receiving SSI, to ensure that no “overpayment” occurs. • Benefit amount is uniform: $ 674 in 2009. (If a combo of SSI and other SSA, amount is $ 694.) Deborah Schroth, 11/6/2008

18. SSI: Supplemental Security Income SSA often takes a long time to agree that someone is disabled; most likely will need to use an attorney to appeal an initial denial. When approved, applicant is entitled to “retroactive” benefits, i.e., benefits dated back to the date of application and/or onset of disability, whichever last occurs. • If lump sum benefit is for more than six months of payments, must open a “dedicated account” for those payments. Deborah Schroth, 11/6/2008

19. SSI: Dedicated Lump Sum Accounts • These funds may only be used for specific types of expenses, and may not be used for “basic monthly maintenance,” such as food, clothing or shelter. This means that the dept./CBC cannot deduct the “cost of care” for the months this money represents. • This must be a separate account, and no other funds can be mingled in the account. Deborah Schroth, 11/6/2008

20. Uses of Dedicated Funds You can use the money only for the following expenses: medical treatment; and education or job skills training. The following expenses are also allowed, if they benefit the child and are related to the child's impairment: personal needs or assistance (e.g., in–home nursing care) special equipment; housing modification; therapy or rehabilitation; or other items or services approved by your local Social Security office. Deborah Schroth, 11/6/2008

21. SSI Overpayment • SSI is a welfare-type payment, designed to provide for the ordinary needs of day to day existence; there are certain instances when SSI will not be payable. Examples: • Child will be in a hospital or correctional facility or a runaway for more than 30 consecutive days. (Why is this?); • Child is able to save the money; asset limit is $2000, with certain things not counted, such as a car. (Why is this?) • Monthly income exceeds a specific limit. (Student rules.) Deborah Schroth, 11/6/2008

22. SSI Overpayment • First, SSA stops payments. • If situation changes before 9 months, child’s benefits will be reinstated, if requested. • SSA asks for its money to be returned if any monthly payments during period of ineligibility. • Will discuss later: should the child be responsible to repay this money? Deborah Schroth, 11/6/2008

23. “Public Benefits”: How the money is paid • Disabilities of non-age; SSA won’t pay the funds directly to a child. • SSA selects a “representative payee.” • State regs say DCF should always apply for this; • Federal regs say the State is the payee of last resort. • “Rep Payee” is the person designated to receive, spend and save the child’s funds. • SSA has numerous rules for “Rep Payees.” Deborah Schroth, 11/6/2008

24. Other types of income/assets • Private Annuities • Lump sum • Discuss when income/assets should not be in Master Trust. • Inadequate understanding of asset management or lack of time to do so. • Benefits too great: CFOP indicates “large sums” as being $20,000. • Need better investment than minimal interest rate. Deborah Schroth, 11/6/2008

25. Medicaid Issues • Regular (Foster Care): asset restriction • Former Foster Care: no asset or income restriction • Medicaid Waiver: Various asset and income restrictions. Check with local ACCESS. • Through SSI • Through two other Medicaid sources • Necessary for APD residential services Deborah Schroth, 11/6/2008

26. Medicaid Issues • Current issue: failure of understanding of interaction of Medicaid Waiver and either foster care or former foster care Medicaid. • Ex: Master Trust account exceeds $2000. Who pays for APD services? Who pays for medications, doctor visits, etc.? Deborah Schroth, 11/6/2008

27. Due Process Issues • Fiduciary Obligation vs. Cost of Care • Supreme Court re SSI – OK for states to pay themselves cost of care from normally restricted SSI payments. (Case did not address issue of fiduciary obligations.) • Constitutional Issue • Notice required prior to alienation of property. Deborah Schroth, 11/6/2008

28. Cost of Care Deduction • Also called “fee maintenance”, this is the monthly cost to DCF of caring for the child, i.e., monthly board rate. • Statute requires DCF to balance its own fiscal needs to take this fee against the child’s immediate and long-term needs. • To fulfill its fiduciary duty, DCF must offer a possible waiver of this cost of care deduction. Deborah Schroth, 11/6/2008

29. Cost of Care Examples • Daryl receives $ 674 per month in SSI benefits. His monthly cost of foster care is $ 675. Because the Social Security Administration requires that insitutionalized SSI recipients receive a monthly personal allowance of $ 30, Daryl is only accruing $30 monthly in his master trust account, and this only due to SSA regulations. • Angela receives $ 850 per month in SSDI benefits, due to the death of her father. Her monthly cost of foster care is also $ 650. Therefore, she accrues $ 200 monthly in her master trust account. • Benjamin receives $ 674 per month in SSI benefits, but his monthly cost of foster care is only $ 475 monthly. Therefore, Benjamin accrues $ 199 monthly. Deborah Schroth, 11/6/2008

30. Cost of Care Examples • Carmen receives SSDI Benefits of $350 monthly. Carmen is also disabled. Her cost of care is $1800 monthly. She is 15. • What does she accrue, if anything in her account? • What else should happen here? Deborah Schroth, 11/6/2008

31. Notice – of Master Trust and Right to Request a Waiver of Cost of Care Fee • When • MT is established: within 30 days (Form CF FSP 5222) (CFOP II-11, at p. 14)) – and - • Each JR (Form 285D) • To Whom • the child, • parents or legal guardians (unless TPR), • guardian ad litem, • Foster parents, • The court, and, if applicable, • the child’s attorney Deborah Schroth, 11/6/2008

32. Notice – at each JR • Must include a copy of the Notice of Fee Assessment And Rights Of Foster Child Regarding Government Benefits (Note: the form applies to client trust regardless of source of income - misnamed) and • A copy of the most recent quarterly accounting Deborah Schroth, 11/6/2008

33. Notice: Form 285D • Case Manager to complete pages 1 and 2 • Entire form (which includes the request for fee waiver) to be attached to JRSSR and delivered to required persons. • What • Go through an actual form (11 – 14): Form DCF Form CF 258D, Jan. 1998. Notice of Fee Assessment and Rights of Foster Child • Must do this correctly to be meaningful • “meaningful” – a Constitutional due process requirement Deborah Schroth, 11/6/2008

34. Access to Accounting • All persons entitled to notice also have the right to access the full accounting at any time. • Fiscal office must provide an annual accounting. CFOP Part I, Section (8)j. Deborah Schroth, 11/6/2008

35. Fee Waiver • What this is • This is a request by or on behalf of a child to “keep” more of her income for a specific purpose. • Increased monthly spending allowance; • For additional short-term needs • To meet long-term needs. • Special methods necessary if child receives SSI. • The process – in general Deborah Schroth, 11/6/2008

36. Fee Waiver – Why Request One? • Fiduciary obligation • Current mandated process makes no prior determination before deducting total cost of care as to whether this should or should not be done as to any particular child/youth. • To balance short-term and long-term interests of each child with the interests of the Department. • What happens if the required notices were never given? Discussion. Deborah Schroth, 11/6/2008

37. Fee Waiver – Why Request One? • Long-term interests of youth likely to age-out • To assist a parenting youth with expenses related to her child • To procure necessary services not ordinarily provided • Tutoring – almost always necessary • Mental health care • “Normalcy” activities Deborah Schroth, 11/6/2008

38. Fee Waiver – Why Request One? • For SSI recipients, to ameliorate the effects of the child’s disabilities • Adaptive equipment, including special computer programs and hardware • Special learning tools • Restrictions? • Cannot use the child’s money to pay for items ordinarily to be paid from another source • Foster Care Board Rate • Medicaid Deborah Schroth, 11/6/2008

39. Fee Waiver – Why Request One? • To enhance a child’s potential • Extra-curricular academic and sports activities • Artistic activities • Music lessons • Art lessons • To save for the child’s future as an adult • In other words, to use the child’s money to benefit the child Deborah Schroth, 11/6/2008

40. Fee Waiver – How to Request One? The fee waiver request will • be case specific and individualized • One time only or recurring • Why is this necessary? • submitted through a fully completed “Notice of Fee Assessment and Rights of Foster Child Regarding Government Benefits” form (CF 0285D) to the Region, Circuit or CBC • have documentation that substantiates the request attached to the request Deborah Schroth, 11/6/2008

41. Fee Waiver – Standards for Review • Age of the client. (Looking towards needs of older youth both short-term and looking towards adulthood). • Health status and needs of client. • Case goal. • If not adoption/reunification, “quality of life considerations become more critical.” • Individual concerns; documentation Deborah Schroth, 11/6/2008

42. Fee Waiver – Who Should Request One? • The child might initiate • By asking caseworker • By asking CLS attorney or child’s own attorney • By asking GAL • GAL or parent might initiate Deborah Schroth, 11/6/2008

43. Fee Waiver – Who Should Request One? • Court might order case manager to initiate • Court sees unmet needs of the child, and understands Master Trust enough to know that there is money that could be accessed to help the child. • Court may order someone to make a fee waiver request, but court has no subject matter jurisdiction to entertain such a request, or to order a fee waiver. Deborah Schroth, 11/6/2008

44. Fee Waiver procedure Rule 65C-17.005, F.A.C. • Local review committee (at least 3 people) appointed by the Region or Circuit leader or designee will review and approve or deny the request based on theinterests the child and the availability of funding. • requires an actual meeting of the committee; • meeting is open to the person requesting the waiver and his representative, who does not need to be an attorney • audio-taping of the meeting Deborah Schroth, 11/6/2008

45. Fee Waiver procedure, cont’d Rule 65-6.022, F.A.C. • Requires the fee review committee’s recommendation to the District Administrator to be made within 30 days of receipt of the request for fee waiver; • Requires the District Administrator to notify the person requesting the fee waiver within 10 days of making the decision. Question: Are we involved at this point? Deborah Schroth, 11/6/2008

46. Fee Waiver – Denied! • Each child has the right to appeal the decision of the region or circuit. • Appeal normally goes to DOAH • Next appeal goes to District Court • Child should have an attorney at this point! Deborah Schroth, 11/6/2008

47. Account Management • Actual accountings • Notices from SSA or other benefit provider • SSI/Medicaid Interface • $2000 maximum but only for SSI/APD issues • Spending plans • Not spending sprees – when would this happen? • $2000 in account • For all accounts? Deborah Schroth, 11/6/2008

48. Spending plans • Example (but not the best) at CFOP p. 66 • Should be developed using the same considerations as used for Fee Waiver request • Should be developed with the child’s input, in consideration of the child’s wants and needs • Should be submitted to the court as part of the JRSSR. Deborah Schroth, 11/6/2008

49. Considerations for expenditures • Prudent Parent standard • Not spending just to spend • For disabled children • Services tailored to ameliorate effects of disability • Do not pay for something Medicaid must provide • But do supplement Medicaid • Discuss examples of disabilities and services • Allowances/self-management Deborah Schroth, 11/6/2008

50. Special Considerations for Youth Transitioning from Foster Care • Preparation for aging out – long-term needs • At what age: 65C-17.004 says 15 • Why? RTI and Transitional services are not entitlements • Bank account establishment • “Automatic” Court order at age 16 • Fee Waiver Considerations • For youth with SSI, how to layer expenditures Deborah Schroth, 11/6/2008