The state has long taken foster children's disability and survivor benefits without notifying them

Try this on for size: The Maryland agency overseeing foster care has been appropriating foster children’s assets — orphaned children’s survivor benefits, for example — and handing them over to the state.

There’s more: Not only does this agency take assets from children, but Gov. Martin O’Malley and the head of the Maryland Department of Human Resources encourage the practice, going so far as to hire a private company to help obtain Social Security disability (SSI) and survivor benefits (SSDI) from foster children to use as government revenue.

Children’s Social Security benefits are intended to serve the children’s best interests, not to pay the state back for foster care. But our foster care agency is targeting abused and neglected children who are disabled or have dead parents, applying for Social Security benefits on their behalf — and then diverting the money to state coffers. The practice has been occurring for years, but in secret. Children and their lawyers are not notified.

Despite litigation regarding the practice, Maryland hired a private contractor — MAXIMUS (tag line: “Helping Government Serve the People”) — to help broaden these efforts to “maximize revenue gain.” Records obtained under the Maryland Public Information Act request expose:

•MAXIMUS recommendations “designed to promote the identification of and subsequent acquisition of all SSI/SSDI benefits for all qualifying foster care children;”

•MAXIMUS’ encouragement of caseworkers “to refer any child suspected from suffering from any illness — from a quadriplegic to ADHA [sic];”

•A goal to increase the number of Maryland foster children determined disabled for Social Security benefits from the current 2 percent to 15-20 percent

•Plans to convert up to $9 million annually in resulting children’s benefits to government revenue;

•And a warning that Maryland may be double-dipping by possibly obtaining foster children’s assets and other funds to reimburse itself for state costs more than once.

Two foster children challenged the agency practice, and their cases worked through the Maryland courts. I represented Alex, and the Legal Aid Bureau represented Ryan. Alex entered foster care at age 12, when his mother died. His father died shortly thereafter. Ryan entered foster care at age 9, and then both of his parents died. Both boys were shifted between numerous group homes and foster care placements. The boys never knew their parents left them with survivor benefits because the foster care agency never told them — and never told them it applied for their benefits, that it became representative payee to gain control over their money, or that it routed their money into state coffers. Both boys left foster care penniless.

The Court of Appeals denied hearing Alex’s appeal, but it granted review of Ryan’s case, and I filed an amicus brief on behalf of several advocates. The court just issued a ruling in Ryan’s case, concluding that Maryland violated Ryan’s constitutional due process rights by applying for and taking his funds without notifying him or his lawyer. This is an important ruling for foster children’s rights. If children can find another representative payee, the state can no longer force them to hand over their money.

But unfortunately, the court upheld the state’s argument that when it serves as payee it can divert children’s benefits to repay state costs and thus bolster government revenue — even though children have no debt obligation to pay for their own foster care. This part of the decision is incorrect in my view. But even if it’s correct, the court recognizes that Maryland has discretion as representative payee to consider the best use of the children’s money.

So, since the state has discretion, I posit this question: what should our governor do? If our state and foster care agency need more revenue, is the answer really to take resources from the very children this agency exists to serve?

Other states do it too, but that doesn’t make it right.

Consider how the children are fairing: Twice as many foster children suffer from post traumatic stress disorder as Iraq war veterans; over one-third of children aging out of foster care never graduated from high school; only 3 percent complete college; less than half find employment; 85 percent suffer from mental health issues; over one-third are homeless; and almost 75 percent of males become incarcerated by age 26.

A better approach would use children’s money to actually help the children, such as conserving the children’s funds in individualized plans to help their specialized needs and to help them achieve independence once they leave foster care.