Lone leg­is­la­tor snuffs set­tle­ment

Rep. Sylvia Luke re­fused to fund the deal to raise rates paid to foster par­ents

Honolulu Star-Advertiser - - FRONT PAGE - By Su­san Es­soyan ses­soyan@starad­ver­tiser.com

Af­ter years of le­gal wran­gling, the state and ad­vo­cates for foster par­ents thought they had a deal to help cover the cost of car­ing for foster chil­dren — but one state law­maker tor­pe­doed the set­tle­ment. The U.S. District Court had given pre­lim­i­nary ap­proval and let­ters had been sent to 6,000 fam­i­lies about the pro­posed law­suit set­tle­ment, which would raise the rates that foster par­ents are paid to care for abused and ne­glected chil­dren. Such le­gal set­tle­ments are sub­ject to fund­ing by the Leg­is­la­ture, but they are sel­dom nixed so late in the game. Now the is­sue is likely headed back to court and could cost the state far more, ac­cord­ing to at­tor­neys who sued the state, claim­ing it was vi­o­lat­ing fed­eral law by not cov­er­ing the cost of foster care.

“We were def­i­nitely sur­prised,” said plain­tiffs’

If we are pro­vid­ing funds for pro­grams, should one pro­gram take prece­dence over the other just be­cause we have a law­suit?” Sylvia Luke House fi­nance chair­woman

at­tor­ney Claire Wong Black, es­pe­cially since the set­tle­ment “was ne­go­ti­ated with the as­sis­tance of the court and had the ap­proval not only of the Depart­ment of Hu­man Ser­vices and the At­tor­ney Gen­eral’s Of­fice but also the gov­er­nor.” House Fi­nance Chair­woman Sylvia Luke’s de­ci­sion to cut the funds was made with­out public in­put, but she ex­plained her rea­son­ing in a re­cent in­ter­view af­ter the leg­isla­tive ses­sion ended. She said she ob­jected to pay­ing $1.1 mil­lion in at­tor­neys’ fees and she wasn’t sure the state could af­ford the higher rates. She also re­sented the court sys­tem med­dling in what she sees as a leg­isla­tive pre­rog­a­tive. “The con­cern that I had is this was re­ally about pay­ing lawyers as about try­ing to fund pro­grams,” Luke said. “If we are pro­vid­ing funds for pro­grams, should one pro­gram take prece­dence over the other just be­cause we have a law­suit?”

She added, “We had told the At­tor­ney Gen­eral’s Of­fice, what needs to be made clear to the court is that pro­grams can­not be set, the mone­tary amounts can­not be set through the ju­di­ciary.” As a con­di­tion of re­ceiv­ing fed­eral re­im­burse­ment, the law re­quires the state to set rates to fully cover the cost of pro­vid­ing foster care to chil­dren who are re­moved from their homes. That in­cludes food, shel­ter, cloth­ing, school sup­plies and other costs.

THE CLASS-AC­TION suit was filed in 2014 and set­tled last year on the eve of trial af­ter ex­ten­sive tes­ti­mony by ex­perts on both sides. The $1.1 mil­lion in at­tor­neys’ fees was a big dis­count from the $2.9 mil­lion in costs in­curred by the three law firms rep­re­sent­ing the plain­tiffs. “I un­der­stand about her con­cern about at­tor­neys’ fees,” said Black, who is with All­ston Hunt Floyd & Ing. “The sim­ple so­lu­tion is for the state to fol­low its obli­ga­tions un­der the law. If they are com­plain­ing about the fact that this dragged on so long and in­curred fees, that is a di­rect re­sult of the state’s be­hav­ior.”

In re­sponse to Luke’s con­cern about judicial over­reach, Black said: “The courts can­not usurp the leg­isla­tive func­tion. What they can do is re­quire the state to com­ply with their obli­ga­tions un­der fed­eral law, and when that im­pli­cates their fund­ing, then it is well within their purview.”

The other firms on the case were the Hawaii Ap­ple­seed Cen­ter for Law and Eco­nomic Jus­tice, and Mor­ri­son & Fo­er­ster of Palo Alto, Calif. The suit, Pa­tri­cia Shee­hey et al v. Pa­tri­cia MacMana­man, was filed af­ter years of fruit­less ad­vo­cacy to get the foster board rate raised. For 24 years, the rate in Hawaii was fixed at $529 a month. If it had kept pace with in­fla­tion, the rate would have nearly dou­bled to $950 a month over those years, ac­cord­ing to the plain­tiffs. Not long af­ter the suit was filed, the state boosted rates to a range of $576 to $676 a month de­pend­ing on the child’s age. Luke said she thought that would be the end of it. But the law­suit con­tin­ued be­cause ad­vo­cates felt the amounts still fell short of what was re­quired un­der the law.

THE SET­TLE­MENT would have pushed the monthly rates to $649 to $776 per child, and in­creased the an­nual cloth­ing al­lowance. It called for an ad­di­tional $4.5 mil­lion in state funds and $2.4 mil­lion in fed­eral funds in each of the next two years. The agree­ment also called for the state to reg­u­larly re­view rates and as­sure they were ad­e­quate, as is re­quired un­der fed­eral law. “That part of the set­tle­ment was re­ally im­por­tant to the foster fam­i­lies — that the state was go­ing to be bound to look at cost-of-liv­ing in­creases,” Black said. “They could not turn a blind eye any more.” The set­tle­ment agree­ment does not ex­pire un­til the end of June, ac­cord­ing to Joshua Wisch, spe­cial as­sis­tant to the at­tor­ney gen­eral. He said the court has been no­ti­fied that the agree­ment was not funded.

A re­lated law­suit filed in state court was set­tled for $2.3 mil­lion in back pay to foster par­ents, but those funds were cut by the Leg­is­la­ture as well. Black said that was a frac­tion of what was owed, and “if we pur­sue that state law­suit for back pay, you are talk­ing multiples” of that fig­ure. Al­though the Leg­is­la­ture re­fused to fund the foster care set­tle­ment, it added $5 mil­lion to the at­tor­ney gen­eral’s bud­get for lit­i­ga­tion. Sen. Jill Tokuda, thenWays and Means chair­woman, said that would put peo­ple on no­tice. “We need to make sure that the at­tor­ney gen­eral takes very se­ri­ously those claims that come against us, which is why we did put $5 mil­lion more into the lit­i­ga­tion fund so that peo­ple re­al­ize that if they chal­lenge us, even those that are friv­o­lous, that we will take that se­ri­ously,” Tokuda said. Sherry Cam­pagna, a foster mother who was a plain­tiff in the state law­suit, said vul­ner­a­ble chil­dren ul­ti­mately will suf­fer un­less foster care rates are raised be­cause many good par­ents won’t take in needy kids with­out ad­e­quate com­pen­sa­tion. “When I meet great fam­i­lies and I try to re­cruit them as foster par­ents, they won’t do it af­ter they see the num­bers,” said Cam­pagna, who waived any per­sonal claims as part of the set­tle­ment. The Cam­pag­nas have four chil­dren aged 2 to 16 — in­clud­ing foster, adopted and bi­o­log­i­cal kids.

“We be­lieve ev­ery kid de­serves at least a tem­po­rary respite from the craziness of the lives that they are sub­jected to,” she said. “Un­for­tu­nately the state now has a very large bill to pay to sup­port our most vul­ner­a­ble chil­dren. They should do the right thing and pay their bills.”



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