This Article examines the legality and policy concerns of state foster care agencies using children's Social Security benefits as a state funding stream. The practice requires foster children who are disabled or have deceased or disabled parents to pay for their own care. Often with the assistance of private consultants under contingency fee contracts, agencies look for children who are eligible for Social Security benefits and interject themselves as the children's representative payees. Rather than using the benefits to serve the children's unmet needs, the agencies use their fiduciary power to access the children's benefits and apply the funds to reimburse foster care costs for which the children have no legal obligation. Although the practice was upheld by the Supreme Court in Washington State Dep't. of Social and Health Services vs. Guardianship Estate of Keffeler, the decision was limited and legal and policy questions remain unresolved. This Article provides a framework for renewed policy discussions and expanded litigation strategies in the wake of Keffeler. The Article investigates agency practices, weighs the policy concerns, analyzes several possible legal challenges that remain after Keffeler, and concludes with concrete suggestions for reform.
Foster Children Paying for Foster Care, 27 Cardozo L. Rev. 1797 (2006)