Advocates say a major storm is brewing that could overwhelm the state’s child foster care system.
The problem is legal liability insurance, or, more specifically, the lack thereof.
Insurance companies, advocates and providers say, are not taking on new private foster care agencies as clients and some agencies are being notified that they’re losing their insurance, including some of the state’s biggest foster care providers. Some others are being forced into high-priced, low-benefit insurance plans. Many may ultimately find themselves out of business.
As of the end of February, more than 18,000 kids were in the foster care system, and only a minority of those are actually being cared for by the state. Many are placed with private, not-for-profit agencies. The state generally contracts out services like these, mostly to charities that can also raise additional funds.
If those providers are forced out of existence, the state would have to take the foster kids in, and the state simply has no room (or money) for them. The worst-case scenario would be disastrous.
Advocates say they’ve been warning about this for years and have been ignored. And then California made big headlines last fall when it became public that it is facing a foster care “cliff” this summer, when many private agencies will lose their liability insurance coverage. And now, as one person involved said, “It’s kind of cascading across the country.”
Two identical bills have been introduced to address the problem, Senate Bill 1696 sponsored by Sen. Laura Fine and House Bill 3138 sponsored by Rep. Suzanne Ness. The bills would grant the foster care agencies and their employees immunity from civil liability for a two-year period “unless the agency’s acts or omissions constitute willful and wanton conduct.”
This being Illinois, the politically powerful trial lawyers have a large seat at the bargaining table. They’re the ones who file the lawsuits.
“Foster youth in care are among the most vulnerable within our communities,” said Illinois Trial Lawyers Association Executive Director Jim Collins in a statement. “In the tragic event that youth in care are harmed or killed as a result of the negligence of agencies whose charge is to ensure their safety and well-being, the public policy of Illinois should be one that preserves access to justice for the affected youth. Proposals that reduce or erode access to justice for youth victims are as misguided as they are unjust; if there is an insurance ‘crisis’ that has been inflicted upon provider agencies, policymakers should focus on an insurance solution.”
And because of that opposition, numerous sources say the bills will not move forward as currently constructed.
Even so, advocates and lobbyists I’ve spoken with on and off the record said they’re optimistic.
“I don’t know that there’s agreement necessarily about what the solutions are,” said Andrea Durbin of the Illinois Collaboration on Youth, “but people are trying to come together, at least, to figure out what can we do in the short run and what can we do in the long run.”
Durbin said part of the challenge is the desire to “provide child victims of abuse, especially sexual abuse, with opportunities for recourse as adults, and I don’t have any complaints or beefs with that. But it means, as an insurer, you have a long tail of liability.”
“People want justice,” Durbin said. “They want justice for that child. And so they end up wanting to punish somebody. And the only person is the community provider. So, we end up sort of holding the bag for the systemic failures.”
One idea that’s been floating around is moving the private foster care providers into the Illinois Court of Claims umbrella. That court handles lawsuits against the state and it has a $2 million damages cap. The attorney general’s office has so far resisted the solution, citing staff capacity. But advocates say that DCFS is rarely sued in the Court of Claims, so the staff excuse doesn’t hold water.
Rep. Ness, D-Crystal Lake, the bill’s House sponsor, said she believes the negotiators “need to come up with a short-term solution to give the state some more time to look at longer-term solutions. I don’t think that this is a DCFS problem only. I think it’s also an insurance problem.
Ness said negotiators must find a way to come to an agreement so “these kids don’t have to be disrupted again and placed in other homes because the agencies they’re with cannot get insured. We can’t let that happen.”
I couldn’t agree more.
- Perrid - Monday, Mar 10, 25 @ 8:00 am:
I mean, the best long term solution is to be better at preventing sexual assault or other harms, right? If the risk is lower then insurance premiums should be lower.
Of course, I don’t know where to find that particular magic wand. And without being able to fix the underlying cause, we’re left with deciding which symptoms to treat.
- Homebody - Monday, Mar 10, 25 @ 8:09 am:
== I mean, the best long term solution is to be better at preventing sexual assault or other harms, right? ==
Like with most things in our society, that means the best long term path is addressing the underlying needs of the families long before the kids end up in the care of the state.
The vast majority of DCFS cases fall under one of three categories: mental health of parents, substance abuse of parents, or domestic violence, all of which have a big pile of poverty exacerbating it. If Americans actually bothered to care about those things at a systemic level even a little more than we currently do, we’d see marked improvement in tons of areas.
Unfortunately America only ever deals with problems after they become bigger and more expensive to fix, because our society has become pathologically opposed to preventative measures.
- Larry Bowa Jr. - Monday, Mar 10, 25 @ 8:11 am:
‘if there is an insurance ‘crisis’ that has been inflicted upon provider agencies, policymakers should focus on an insurance solution.’
Translation: there is always more money in the insurance company’s pockets for us. Go make it so!
- Back to the Future - Monday, Mar 10, 25 @ 8:14 am:
Really solid review of a very serious problem that hasn’t gotten much Press.
- SWSider - Monday, Mar 10, 25 @ 8:19 am:
==Advocates say they’ve been warning about this for years and have been ignored.==
Governor Kick-The-Can would have to spend political capital to solve this problem. Not gonna happen.
- Friendly Bob Adams - Monday, Mar 10, 25 @ 12:09 pm:
The Court of Claims option is probably the best one. You can’t force insurance companies to provide coverage that will lose money.
- H-W - Monday, Mar 10, 25 @ 12:42 pm:
The bills would grant the foster care agencies and their employees immunity from civil liability for a two-year period “unless the agency’s acts or omissions constitute willful and wanton conduct.”
The idea of the state assuming full legal responsibility for the patchwork foster care system makes sense, particularly in a short run model. Indeed, the ideas of “parentis locus” (?) and that you cannot sue the state, would serve as a good solution against profiteering by insurance companies. During the temporary realignment period, suspend insurance policies. If insurers want to come back to the table to work with all parties, let them. But do not rely upon insurance companies to protect the interests of the children. The business model of social responsibility has always privileged shareholders over customers and clients.
- Annonin' - Monday, Mar 10, 25 @ 2:01 pm:
Still waitin’ on details of a bunch of expensive claims/settlements paid out by insurers. Perhaps an outshore re-insurer could be established to slow or stop private insurance withdrawals. METRA did something like this decades ago. Court of claims probably lacks staffing to handle.