By Kelli Kennedy
May 28, 2010 / South Florida Times
MIAMI (AP) — A few months after a 10-year-old child was placed with eight other children in a Tampa foster home overseen by a single mom, a 13-year-old boy sneaked into his room and raped him in 2005.
But Hillsborough Kids Inc., a state contractor that placed the boy, says it's not liable because it subcontracted with another agency which directly cared for the boy. They contend the state Department of Children and Families is ultimately responsible for overseeing its providers, according to court documents.
The lawsuit filed on behalf of the boy has dragged on for three years and is the crux of an ongoing argument between DCF and the contractors it hires to place and monitor foster children: Who should be financially responsible when one of the children is harmed?
That question has major repercussions for both taxpayers and the children. If it's the state, the contractors would be off the hook and a victimized foster child would be limited by law to receiving $200,000 in damages from the state unless the Legislature approves a higher amount. If it's the contractors, an injured child could receive whatever damages a court awards up to $3 million per incident and it would be paid by the contractor and its insurance company.
Child advocates say DCF and its contractors are trying to dodge responsibility and are wasting taxpayer money as discussions drag on. In the end, they say, it leaves abused children with little legal or financial recourse. The state spent more than $740 million this year on foster care, employing 21 contractors to oversee between 9,000 and 10,000 foster children.
“It's sad and a complete waste of resources when we see each blame the other or duck behind technical defenses while the innocent foster child is suffering and waiting to get help,” said Howard Talenfeld, a child advocate and Broward County attorney.
DCF says it's spent millions in legal fees on cases it wasn't responsible for, according to a letter obtained by The Associated Press. Meanwhile, private contractors argue they should have immunity from large judgments just like the state does, despite a statute and contracts that say otherwise. Additionally, providers say they couldn't afford rising insurance premiums and legal fees brought by an increase in lawsuits.
Florida became the first state to fully privatize its child welfare programs in 2005, inking multimillion dollar contracts with providers that DCF says includes the cost of caring for children and enough for insurance if a foster child is harmed.
The Legislature privatized the system after some high-profile cases where government workers lied about visiting foster homes, resulting in the death or disappearance of some children. Backers said privatization would keep children safer and the Legislature removed a cap on how much money abused children could receive by pushing the responsibility onto private insurers.
But providers say that's unfair and DCF Secretary George Sheldon told the AP he supports giving them sovereign immunity, which could limit judgments, fearing a multimillion dollar verdict could break them. He suggested increasing the cap on the insurance contractors are required to carry and barring judgments over that amount. Any change to the statute would require legislative action. Providers have shopped an amendment to various legislators in the past few years, but little has come of it.
Critics say the state has been lax in enforcing the statute, which defines the relationship as an outsourcing of state jobs, and shouldn't pay to defend cases where providers are at fault.
The providers “want to be able to take all this money from taxpayers and they don't want to be accountable. It's absurd,” said attorney Karen Gievers, who is representing the 10-year-old boy who was raped.
She is also suing the organization for negligence in the case of a foster child, saying its workers ignored signs he was sexually abused while bouncing between more than 43 foster care placements in roughly 14 years.