Ensuring/Insuring Foster Care
.... what happens when foster carers can't get liability coverage?
As I noted a few weeks ago, a California foster provider may shut down due to its inability to obtain liability insurance coverage.
The problem is not a new one — I’ve heard horror stories from childcare providers and private foster care agencies for several years now about how expensive and difficult it is to find the insurance coverage that regulators require an agency to have if it is going to provide services for children. The State of Georgia, for example, requires any agency contracting with the Division of Family and Children Services to have at least $3mm in aggregate commercial coverage plus similar limits in automobile and professional liability coverage. Even when insurance is available, rates have skyrocketed. Adding to the problem is increased liability for long-standing private agencies that have greater exposure as states lift statutes of limitation for historic claims. When I went to get commercial insurance for my small consultancy business a couple of years ago, I found that telling companies I did child welfare consulting was a non-starter for many of them.
The reality is that a private agency unable to obtain or afford insurance will go out of business. Critics of foster care like Richard Wexler seem giddy over the issue; perhaps he’d prefer to see private agencies driven out of business. But without private providers, the state or local government would be in charge of all foster and residential care services, and government agencies are often completely immune from liability or have limited liability. In Georgia, for example, our individual foster parents who provide services directly to the state agency are generally free from any personal liability, while the state agency itself has limited liability in certain circumstances.
Reasonable people can agree that if a child suffers a significant injury or abuse while in foster care, that child might be due some measure of damages. And while fear of tort liability is certainly an imperfect deterrent to wrongdoing, it may help ensure those caring for children in the state’s custody follow the rules. But does it make sense that a foster child’s ability to recover may depend upon whether he or she was placed in a private agency foster home or group home vs. a public foster home or residential facility?
What solutions are there? Here are a few ideas I’ve come across that could help make liability coverage more available and affordable for private providers:
Safe Harbor Rules. Providing foster and residential care to children in state custody requires adherence to state laws and regulations and professional standards of care, including rules and standards designed to keep children safe. While attorneys often cite an agency’s failure to abide by those safety standards as evidence of liability, compliance usually does not by itself provide immunity from liability. Laws could, however, be passed to limit liability for those providers who demonstrate they complied with the standards even though a child suffered harm.
Safe Provider Discounts. Auto insurers, often encouraged by state laws, offer “safe driver” discounts, especially if you’re willing to install a device in your vehicle to monitor your driving. Insurers, regulators, and/or lawmakers could likewise create a “safe provider certification” for private agencies. A successful audit followed by annual reviews could entitle a provider to a discount on liability insurance, a legal cap on damages, or other benefits. Such a program would certainly improve safety for children, and there are good organizations out there who can provide auditing and advice.
Subsidies. Our child welfare system has acknowledged the need for public-private partnerships, and the state cannot carry out its obligations to children in its custody without assistance from the private sector. Often those private providers are nonprofits, unable to survive on contract payments alone, and must raise philanthropic funds to fulfill their mission. If the government is going to ask private agencies to fulfill the state’s obligations to care for these children and assume liability for harm to one of those children, it’s reasonable to ask the state to assist paying for the insurance coverage the agency must have to operate. Of course, the state would be free to require the agency be certified as a safe provider.
Thoughts?
In other news:
Rolling Stone on children removed from parents using THC.
Latest on Kansas’ efforts to improve its child welfare system.
Article on the guy who’s trying to keep Washington’s children with complex needs from lingering in hospitals.
The Taliban don’t respect women’s rights. But you already knew that. Now, they’re sending child brides back to their abusers.
Good article from The Imprint on the importance of Just Culture in child welfare. Learn more about how just culture improves child safety in our new book!
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