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Tuesday, September 08, 2009

Ind. Decisions - Certainly we haven't heard the last of: "Apparently there are all sorts of surprises in the special session budget"

The headline to Tim Evans' story today in the Indianapolis Star is "New law lets DCS decide out-of-state placements." More correctly, it would be "Revision of a few words in a subsection ..."

Specifically, during the 2009 Special Session of the Indiana General Assembly, IC 31-40-1-2(f) was amended as follows:

(f) The department is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement does not comply with the conditions stated in IC 31-34-20-1(b) or IC 31-37-19-3(b). is not recommended or approved by the director of the department or the director's designee.
This has been criticized as "an 11th-hour insertion" into the special session budget [via PL 182-2009(ss), SECTION 387], passed June 31st and effective July 1st - there was no opportunity for public input and one doubts that most legislators were aware of the change or its implications.

As I wrote in this August 30th ILB entry:

Of course the constitutional "one subject" requirement was intended to protect against the type of action. These is at least one case currently pending before our Supreme Court involving similar last minute additions to the "budget bill" in an earlier year. But the Courts has consistently avoided addressing this problem, claiming that "separation of powers" ties its hands.
From the lengthy Star story today:
A last-minute change to Indiana law enacted during the legislature's special session in June essentially has shifted all future decisions on out-of-state placements to the DCS director.

The change in state law came after DCS lost a Supreme Court decision in April that gave more deference to judges in making placement decisions when there is a dispute about who should pay.

Whether the new approach is good or bad for Hoosier children -- about 150 are sent to out-of-state programs each year -- is a matter of debate.

Opponents say it could lead to costly decisions not always in the best interest of the child, but others believe it's generally a bad idea to move children far away from home. DCS is less likely than the court to ship children out of state.

DCS Director James Payne acknowledged the Supreme Court ruling in April was a factor in seeking the new law. Because the state now is paying for services, he said, "it was anticipated a DCS recommendation would carry extra consideration."

But, Payne emphasized, the change was driven more by what's best for Hoosier children -- keeping them closer to home, their caseworkers and family connections -- and the importance of supporting Indiana businesses during tough economic times.

Payne said looking only at initial costs can be misleading. He explained an out-of-state facility might have a lower daily rate, but the overall cost could still be higher because of travel, the length of stay and the need for additional services when the child returns to Indiana.

Economic considerations, he acknowledged, also must be factored into decisions.

"Why would we be sending Indiana tax dollars to other states if we have the appropriate services here?" Payne said, adding that the array of programs available in Indiana is adequate.

Technically, judges can still over-rule DCS and send a youth to another state for treatment, but without the agency's approval, the child's home county must bear the cost. And since the $600 million cost of child-welfare services was shifted from counties to the state this year, most counties no longer have budgets to pay those costs. * * *

[St. Joseph County Probate Judge Peter Nemeth] also has a gripe with how the change was made. He said such a critical issue should not be decided in a late-night meeting of a legislative committee without debate or public input -- and it might have been based on bad information.

"One of the driving factors for the change, as I understand it, was that for some reason, legislators had the idea judges were driving the increase in expenditures for children's services, which I don't think is true," he said.

Nemeth said he believes most judges are being fiscally responsible while also watching out for the best interests of children.

That's what he was doing, he believes, when he recently decided to send a teen to a specialized drug-treatment facility in Iowa.

DCS disagreed, but the Indiana Court of Appeals last week agreed with Nemeth, who had found the DCS recommendation was more costly and "contrary to the welfare and best interest of the child."

That case and the Madison County one that went before the Supreme Court were initiated before the new law took effect July 1.

For more, including summaries of all the recent court decisions, see this list of earlier ILB entries, most of them headed "Apparently there are all sorts of surprises in the special session budget."

Posted by Marcia Oddi on September 8, 2009 09:52 AM
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Decisions | Indiana Government | Indiana Law