The issue at hand is dealing with child welfare. As it stands, children who are impoverished qualify under Title IV-A means testing to apply for Social Supplemental Income payments, including eligibility of Medicaid. Children who have been under the auspices of the state, more readily recognized as foster care, and have been returned to the legal custody and guardianship of the original parent, reunification, generally, automatically qualify for SSI as having been judicially assessed as special needs through the state court. This state court qualification also determines the funding formulas pertaining to the Federal Medical Assistance Percentage (FMAP), Title IV-E and Targeted Case Management of Medicaid.
Due to the aforementioned eligibility determinations, a child's medical and psychological records when in foster care become hermetically sealed and are not subject to the purview of the original parent, even under a FOIA.
Simply put, an original parent may not access the child's medical and psychological records who has been under the auspices of the state, creating an obstacle for the Social Security Administrative Law Judges to make a determination of eligibility for SSI benefits.
Under the Child Abuse Prevention and Treatment Act (CAPTA, P.L. 93-247), in order to receive a Federal grant, States must preserve the confidentiality of all child abuse and neglect reports and records to protect the privacy rights of the child and of the child's parents or guardians except in certain limited circumstances. All jurisdictions have confidentiality provisions to protect abuse and neglect records from public scrutiny. Confidentiality provisions mandate that such records are confidential, and many include specific mechanisms for protecting them form public view.
Pursuant to P.L. 93-247, these certain limited circumstances only release records in instances of individual state child fatality review. For this matter, a claimant is not entitle to medical records.
In the case of Tampico v. EOUSA, No. 04-2285, slip op. at 8 (D.D.C. Apr 29, 2005), the court clarified the position that is applied to all child protection cases, as it is a federally funded law enforcement action by qualifying certain records containing identifying information pertaining to children involved in criminal proceedings by statute to the Freedom of Information Act under Exemption 3.
Congress exempted nine categories of documents from the broad disclosure requirements of the Freedom of Information Act. Exemption 3 applies to documents that are specifically exempted from disclosure by another statute. 3 U.S.C.S. Sec 552(b)(3). Exemption 6 protects personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. 5U.S.C.S. Sec. 552(b)(6). Exemption 7(C) excludes records or information compiled for law enforcement purposes, but only to the extent that the production privacy. 5 U.S.C.S. Sec 552(b)(7)(C).
Then, under the Federal Victims Protection and Rights Act (3) the term "child abuse" means the physical or mental injury, sexual abuse or exploitating, or negligent treatment of a child (18 U.S.C. Sec 3509). As seen in the language of the statute, the terms "child abuse" and "child neglect" are fungible, one in the same. A child can and is placed into foster care to access medical care and resources when an original parent cannot afford health insurance or is denied coverage. This is standard procedure for the States and have no qualms in generating a list of administrative policies for each state.
Again, an original parent may not access the former foster child's medical and/or psychological records when presenting a case to an Administrative Law Judge for a Social Security determination of eligibility for SSI.
An Administrative Law Judge (ALJ) has subpoena powers pursuant to CFR 20 405.322. The Administrative Law Judge, upon his own initiative possesses the ability to issue subpoena for production of documents in the light of a claimant's release for request of information to previously mentioned medical and psychological authorities, including state regulatory agencies and keepers of the record, in a claimant's case have failed to respond and produce records.
Not only do ALJs significantly fail to exercise these subpoena powers, but the length of time it takes for a decision to be rendered for eligibility of SSI averages over one year, causing the child to economically and in some cases medically suffer, defaulting the grant of custody and guardianship of an original parent back to the state. Recidivism rates manifest when a child is placed back to the foster care system to access funding for services because of the delays of the ALJ, severely skewing national statistics of why children are in foster care and unnecessarily expending funding of foster care programs.
Another layer of time in determinations is placed upon the claimant's case when an appeal is sent to the Decision Appellate Board, further exasperating the wait in the form of another year.
The role of the ALJ in SSI cases of children and youth is to expedite the navigation of the child welfare system to provide desperately needed relief in the form of a determination of eligibility. California has recognized that the ALJ has neglected to recognize the duties to function in the best interests of the child and has adopted its own policy to provide for expedient determination of eligibility for SSI.
In addition, the role of the ALJ is to help children who are survivors of the death of a parent. Huffington post did a piece on this: Fighting for Scraps: Foster Children Denied the Funding They Need
The ALJ presiding over child cases also has a responsibility to refer violations of law to an investigative entity, preferably the Department of Justice. This would be a basic start to stopping fraud in child welfare.
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