The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
Former foster youth are vulnerable to poor overall health upon exiting foster care.2 They are at greater risk of homelessness, substance abuse, disabilities, and mental health issues than the general population.3 In a recent study, 51% of young women who aged out of foster care were pregnant at least once by age 19, even after controlling for race/ethnicity.4
The disturbing health outcomes for these youth may reverse course now that the Patient Protection and Affordable Care Act (Affordable Care Act or “ACA”) expands Medicaid coverage for youth who age out of foster care. States must make such youth, known as “former foster care children,”5 eligible for Medicaid under the ACA until they turn 26. Youth are eligible provided they:
- were in foster care when they turned 18 or aged out of foster care as defined by the state in which they aged out,6
- were receiving Medicaid when they exited care,7 and
- are not otherwise eligible for, or enrolled in, mandatory coverage.8
Expanded Medicaid will help youth who have aged out of foster care for both preventative and nonroutine medical care through age 26.9 However, categorical Medicaid eligibility for “former foster care children” may create unintended consequences related to permanency, portability, and coverage requirements.
Expanding the Affordable Care Act
In 1999, under the Chafee Act, Congress permitted states to expand Medicaid coverage to youth aging out of foster care through age 21 (the Chafee Option). About 30 states elected to create a new category of Medicaid coverage to former foster youth.10 The Chafee Option does not require enrollment in Medicaid by age 18 in foster care (in contrast to the ACA), but coverage under the Chafee Option ends at age 21.
Currently, 20 states that chose not to earmark a Medicaid program through the Chafee Option will now be required to create a former foster care Medicaid category. For a list of states that currently have a Chafee Medicaid category for former foster youth visit: http://aspe.hhs.gov/hsp/13/ChafeeMedicaidReport/rpt2.cfm.
On July 15, 2013, the Centers for Medicaid & Medicare Services (CMS) determined the parameters for Medicaid eligibility under the ACA for former foster youth11 and further ruled the new ACA coverage supersedes categorical Medicaid eligibility under Chafee.12 Two important features to Medicaid coverage under the ACA are:
There is no financial means test for Medicaid coverage of former foster care youth, unlike many other eligibility categories.13
Medicaid eligibility is both proactive and retroactive. Youth who age out of foster care after January 1, 2014, will be eligible for Medicaid coverage until they turn 26. Former foster youth who aged out of care previously and are under age 26 (youth born after 1988), will also be eligible.14 However, identifying youth who qualify may be difficult once they have exited foster care. (See box, below)
While some youth who age out of foster care may be eligible for Medicaid under other categories of coverage, they will be assigned to Medicaid under their status as a former foster care child unless they qualify under a mandatory Medicaid category.15 Notably, youth who age out of foster care are covered by full Medicaid benefits and EPSDT (Early Periodic Screening Diagnostic Testing) through age 21.16 Coverage for ages 21 through 26 will be determined by state Medicaid plans, but will include preventive services, early intervention services, diagnostic services, and treatment for physical and mental health.17 CMS noted that states will have the option to design and provide voluntary enrollment in an Alternative Benefits Plan (i.e., a health care exchange) targeted to former foster care children that provides more comprehensive coverage.18
Former Foster Care Children Medicaid coverage is designed to be flexible and can stop and restart based on individual circumstances. Coverage resumes if former foster youth:
- lose other health insurance coverage due to unemployment,
- accept a job with no health insurance, or
- enroll in an education program with inadequate health insurance coverage.19
Former foster care children will also remain eligible for coverage after they leave military service or prison, based on their former foster care status.20 Because former foster youth move often, this built-in flexibility will likely improve stability and health outcomes for those who have exited care.
Although every state will be required to provide Medicaid coverage to any youth who ages out of foster care, that does not translate to covering youth who exit care in another state. States will have the option, but will not be required, to cover individuals who were in foster care and had Medicaid coverage in any state, rather than limiting coverage to former foster youth who aged out in that particular state.21 Many child welfare advocates expressed concern regarding this position. However, the final regulation did not address portability and it remains unclear whether the “former foster care children” mandatory expansion will transfer to another state. 22
This lack of clarity may leave the Department of Health and Human Services (and individual state Medicaid providers) vulnerable to litigation because restricting Medicaid coverage could place an undue burden on a former foster youth’s right to travel or live in another state. 23 Potential travel restrictions based on loss of health coverage might hinder opportunities for youth who exit care to attend college, work, or move out of state.
The “former foster care children” category provides more expansive medical coverage than some basic forms of Medicaid, and not all former foster youth will qualify for different Medicaid packages in other states. Consequently, some former foster youth who elect to live in another state may not have continued Medicaid coverage unless they:
- meet eligibility criteria for the new state,
- move where providers accept their home state’s Medicaid, or
- move to a state that covers any “former foster care child” regardless of home state.
Therefore, it will be important for independent living caseworkers, lawyers, and advocates to inform youth exiting care of potential changes to their health coverage if they choose to move to another state.
Permanency Decision Making
This Medicaid category expansion also poses some difficult questions regarding a child’s right to permanency. The Adoption and Safe Families Act (ASFA) requires states to act quickly to ensure children do not languish in foster care.24 However, the categorical Medicaid eligibility requirement to age out of foster care may conflict with the ASFA objective to promote permanency. If a youth is placed permanently with a relative, he or she may become ineligible for categorical Medicaid coverage through age 26 as a “former foster child.”
While many adolescents who are adopted are eligible for medical coverage and/or Medicaid through their adoptive parents, those seeking permanence with a relative may have fewer long-term insurance options beyond age 21. Approximately one quarter of all kids in state custody are living in some type of kinship care arrangement.25 In many cases, families that seek guardianship or kinship care of adolescents in foster care may not have the financial ability to place such children on their medical insurance—often because they are either on Medicaid or do not have health coverage themselves.26
As a result, once children leave the foster care system for permanency with a relative, they are no longer eligible for Medicaid coverage as “former foster care children” and must find other health insurance options beyond age 21.27 Such youth may feel compelled to choose between relinquishing their right to extended health coverage to be with family members or remaining in foster care until age 18. Attorneys for youth in foster care must carefully discuss the effects of permanency versus long-term Medicaid coverage.
Enrollment and Recertification
In most states, former foster youth must apply for Medicaid and recertify annually. Studies have highlighted the difficulties Medicaid users face navigating both the enrollment and recertification process.28 Enrollment and recertification requirements for “Former Foster Care Child” Medicaid have yet to be determined; however, any requirements for coverage may become barriers to maintaining health insurance for youth aging out of care.
Although independent living workers may assist former foster youth in recertifying or maintaining enrollment until age 21, independent living services generally do not continue through age 26. It will be vital for independent living workers, attorneys, and advocates to teach former foster youth how to enroll and maintain their Medicaid eligibility. Trainings and policies must ensure the transition to “Former Foster Care Child” Medicaid is seamless and accessible to caseworkers, youth, attorneys, and advocates.
Youth in foster care, their independent living caseworkers, attorneys, and advocates must understance the consequences and benefits of the Affordable Care Act. On one hand, expanded Medicaid coverage for youth aging out of foster care through age 26 can be an invaluable benefit. However, it may also create problems for:
- youth who move out of state,
- youth who want to live permanently with a relative caregiver, and
- youth who have difficulty navigating the Medicaid enrollment and recertification processes.
Therefore, it is necessary to provide trainings and policies for youth and professionals serving them to help guide youth through decisions on their future medical coverage.
Eliza M. Hirst, Esq., CWLS, is Deputy Child Advocate, Delaware Office of the Child Advocate.
Reaching Out to Clients Aging Out of the System
One defining feature of the Affordable Care Act is that it expands health care coverage for dependents under age 26 on their parents’ plans. To ensure youth aging out of the foster care system are not disadvantaged by lack of a secure tie to family, the law also allows eligible foster youth to remain on Medicaid until they turn 26.
As attorneys representing children in care, you have a role to play in ensuring youth aging out of the foster care system are aware of their new expanded eligibility. Be sure to speak with your clients who have already or will shortly age out of the system about this opportunity to obtain free health care coverage and the requirements they must meet to qualify.
Several organizations have developed resources to help inform advocates and youth about eligibility under the ACA. The following resources provide tips for communicating with potentially eligible youth, along with further information about this important legislative change:
- SPARC: Medicaid to 26 for Youth in Foster Care: Key Steps for Advocates
- SPARC: Medicaid Outreach Toolkit
- Georgetown University Health Policy Institute: ACA to Keep Foster Care Youth Covered As They Transition to Adulthood
- American Academy of Pediatrics: Health Insurance for Young Adults Who used to be in Foster Care
1. Thanks to HyeJi Kim, 2L at University of Pennsylvania for her assistance.
2. M. Pergamit et al. Providing Medicaid to Youth Formerly in Foster Care Under the Chafee Option: Informing Implementation of the Affordable Care Act. Office of the Assistance Secretary for Planning and Evaluation USHHS, November 2012, available at http://aspe.hhs.gov/hsp/13/ChafeeMedicaidReport/rpt2.cfm.
3. Casey Family Programs. Improving Outcomes for Older Youth in Foster Care, 2008.
4. Dworsky, et al. “Health Insurance Coverage and Use of Family Planning Services Among Current and Former Foster Youth: Implications of the Health Care Reform Law.” J. Health Pol. Pol’y & L. 38, April 2013, 421, 422, citing Dworsky, A. and M.E. Courtney. “The Risk of Teenage Pregnancy among Transitioning Foster Youth: Implications for Extending State Care beyond Age Eighteen.” Children and Youth Services Review 32(10), 2010, 1351-56.
5. Medicaid refers to the population of youth who have aged out of foster care as “former foster care children.”
6. 78 Fed. Reg. 4594, 4604 (Jan. 22, 2013) (to be codified at 42 C.F.R. § 435.150). This provision is aimed at giving former foster youth the same opportunity as many of their peers who will be eligible for coverage under their parents’ insurance policy until age 26. Lehmann, Brooke, Jocelyn Guyer & Kate Lewandowski, Child Welfare and the Affordable Care Act: Key Provisions for Foster Care Children and Youth, Center for Children and Families, June 2012.
7. 111 P.L. 148 § 2004 (2010); 42 U.S.C.S. §1396(a)(10)(A)(i)(IX). Such coverage is intended to apply to youth who age out of care at 18, even if they exit care in a state that extends foster care beyond age 18 with Title IV-E funds.
8. On March 23, 2012, CMS released a separate Medicaid Eligibility final rule, which extended Medicaid to an “adult group,” comprised of nonpregnant individuals aged 19-64 who are not otherwise eligible for mandatory Medicaid coverage, not entitled to or enrolled in Medicare, and have a household income at or below 133 percent of the federal poverty level. This eligibility group will be codified at 42 C.F.R. § 435.119.
9. This provision will be effective starting January 1, 2014. 78 Fed. Reg. 42160 (2013) (to be codified at 42 C.F.R. Parts 431, 435, 436, 438, 440, 447, 457).
10. M. Pergamit et al., 2012.
11. 78 Fed. Reg. 42160 (2013) (to be codified at 42 C.F.R. Parts 431, 435, 436, 438, 440, 447, 457).
12. However, optional eligibility for youth who age out of foster care to age 21 under Chafee is still available and does not require former foster youth to have Medicaid when they turn 18. 78 Fed. Reg. 4594, 4604 (2013). See also, M. Pergamit, 2012.
13. Ibid., 4604.
14. First Focus. Affordable Care Act (ACA) Coverage for Youth Aging Out of Foster Care, Advocates for Children of New Jersey, January 2013.
15. M. Pergamit et al., 2012. Former foster youth may be eligible for coverage if their income is 138% below poverty, they are pregnant, disabled, or the parent of a child under other Medicaid eligibility groups.
16. 78 Fed. Reg. 42160, 42193-4 (2013).
17. First Focus, 2013.
18. 78 Fed. Reg. 42160, 42193-4 (2013).
19. M. Pergamit et al., 2012.
22. YaMinco. “CMS Issues Final Rule on the ACA and Foster Care.” CWLA Children’s Monitor, July 12, 2013.
23. Duffy ex. Rel Duffy v. Meconi, 508 F. Supp. 399 (D. Del. 2007). Every citizen has a fundamental right to travel. Saenz v. Roe, 526 U.S. 489 (1999).
24. 42 U.S.C.A. § 671(a) (West 2012). “In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which . . . . (19) provides that the State shall consider giving preference to an adult relative over a non-related caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant State child protection standards . . ..”
25. Annie E. Casey Foundation. Stepping Up for Kids: Policy Report, 2012.
26. Rubin, et. al. “The Impact of Kinship Care on Behavioral Well-being for Children in Out-of-Home Care.” Journal of Pediatric & Adolescent Medicine, June 2008.
27. Those youth who live with a permanent relative, although not eligible for “former foster care” Medicaid coverage, might be eligible for other forms of Medicaid coverage beyond the age of 21.
28. M. Pergamit et al., 2012.