Texas Child Protection Law Bench Book
2024 version: As effective October 1, 2024
Children with Disabilities
Introduction
A. What Laws and Policies Protect Individuals with Disabilities?
A number of federal laws protect individuals with disabilities from discrimination in public and private settings. Some of these laws include:
• The Americans with Disabilities Act (ADA) 42 U.S. Code § 12101 et seq., which prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications;
• The Rehabilitation Act of 1973, which prohibits discrimination by any entity that receives federal funds;
• The Individuals with Disabilities Education Act (IDEA) 20 U.S.C. § 1400, et. seq., which requires states to provide students with disabilities special education and related services;
• The Fair Housing Act 42 U.S.C. § 3601 et seq. which addresses discrimination in housing;
See Guide to Disability Rights Laws for a summary of federal laws.[118]
B. Children with Disabilities in DFPS Care
Children with disabilities in DFPS conservatorship must be provided with a placement and services to meet their needs.
The Home and Community-based Services (HCS) Medicaid Waiver program provides comprehensive community-based services to children and adults with developmental disabilities for children within DFPS conservatorship who qualify.
Please note that an individual must still meet general eligibility criteria for the HCS program as well as the specific criteria below.
|
Source of HCS Slot |
Eligibility Criteria |
Process to Access |
|
DFPS Aging Out of Care (AOC) |
▪ Close to aging out of conservatorship (age 16 or older) and in need of continued care beyond age 18. ▪ Live in a foster home or a residential facility. Note: the youth cannot continue to live in a residential facility once enrolled in the HCS waiver. ▪ There are a very limited number of these slots so they should not be used for youth who can access. another type of waiver or the HCS waiver using a different slot type. |
▪ When the transition plan is staffed at age 16, DFPS Developmental Disability Specialist (DDS) determines if an HCS slot is needed. ▪ The Developmental Disability Specialist (DDS) completes referral forms and submits to DFPS state office where referrals are prioritized based on situation and age. ▪ Contact: Developmental Disabilities Program Specialist, State Office |
|
Promoting Independence (PI) |
▪ Any age. ▪ Registered on the HCS interest list. ▪ Reside in a large, private ICF-MR. Large is defined as 14 or more beds. |
▪ HHSC offers HCS slots to individuals who are residents of large ICFs-MR and on the HCS interest list. HCS slot offers are made to these individuals to ensure these individuals move within 365 days of being registered on the PI list. If the slot is turned down, HHSC ensures the youth remains on the PI list. CPS staff should secure guidance from the DDS before accepting or declining an HCS slot as other services may be impacted. ▪ The DDS may also request that the ICF-MR conduct a staffing to determine if another “living option” is appropriate. |
|
Small/Medium Intermediate Care Facility (ICF-MR) Rider |
▪ Under the age of 22. ▪ Reside in a small, private ICF-MR (6 beds) or a medium, private ICF-MR (7-13 beds). ▪ There are very few of these slots available. |
▪ HHSC offers slots based on an individual's interest list date. ▪ The DDS may also request that the ICF-MR conduct a staffing to determine if another “living option” is appropriate. |
|
Money Follows the Person (MFP) |
▪ Under the age of 22 for Home and Community Based Services (HCS). ▪ Residing in a nursing facility. ▪ Note: Money Follows the Person (MFP) also applies to other Medicaid Waivers: Community Living Assistance and Support Services (CLASS) (any age), Medically Dependent Children Program (MDCP) (under 21), Community Based Alternatives (CBA) (21 or older), and Deaf-Blind Multiple Disabilities (DB-MD) (18 or older). |
▪ HHSC conducts the Permanency Planning process every 6 months for residents in nursing facilities. Alternative services/options are discussed and if placement into the community is desirable, the MRA notifies HHSC requesting an HCS slot. After age 22 this option ends. |
|
State Supported Living Center |
▪ Residing in a State Supported Living Center. |
▪ The Service Planning Team (SPT) at the facility determines if and when an individual is referred for community placement. Once the SPT makes that determination, HHSC offers an HCS slot to that individual and community placement must occur within 6 months. ▪ The DDS can request a “living option” staffing at any time. ▪ The decision to accept an HCS slot is ultimately made by either DFPS or the guardian if there is one. |
|
State Hospital Multiple Disability Unit (MDU) |
▪ Committed to a state mental health hospital. |
▪ Upon admittance, the DDS can request that HHSC put the youth on the MDU HCS waiting list; wait time for a slot varies and discharge from the hospital may be required before a slot is available. |
|
Interest List |
▪ HHSC determines eligibility when the individual's name comes to the top of the list. |
▪ DDS should put any child they suspect may have a disability on the interest lists for all waivers at the time the child comes into care. This is important to do even if the goal for the child is reunification as waivers are an important resource for birth families. ▪ Contact: local LIDDA office |
DFPS Developmental Disability Specialists are the main point of contact for information about serving children with disabilities in the child welfare system. Responsibilities for the Developmental Disability Specialist are outlined in the CPS Policy Handbook § 6411.31 Responsibilities of the Developmental Disability Specialist and CPS Policy Handbook § 6411.4 Children with Primary Medical Needs and Special Health Care Needs.
Relevant CPS Policy Handbook sections include:
• 4117 Specific Placement Considerations for Children or Youth Who Have Primary Medical Needs
• 4118 Additional Actions for Placing Children with Intellectual or Developmental Disabilities
• 4131.1 Durable Medical Equipment
• 6237 Permanency Planning for Children with Intellectual or Developmental Disabilities in Institutional Settings
• 10340 Preparation for Long-Term Care or Support in Adulthood for Youth with Disabilities
• 1570 Supplemental Security Income (SSI) for Children in Foster Care
• 10341.2 Ensuring Funding and Eligibility for Services
• 1543 Payment for Long-Term Care in Adulthood
Relevant DFPS Resource Guides include:
• Mental Health Resource Guide
• Education for Children Resource Guide
• Referral Process for Youth in DFPS Foster Care for Home and Community Based Services
• Preparation for Long Term Care and Support Resource Guide
C. Benefits from the Social Security Administration
1. Child receives income from Supplemental Security Income (SSI) or Retirement, Survivors, and Disability Insurance (RSDI)
A child entering DFPS conservatorship may be entitled to various benefits through the Social Security Administration (SSA).[119] If the child is currently receiving benefits, DFPS must promptly notify SSA that the child is under DFPS conservatorship so that DFPS can apply to become the representative payee of the child's benefits.[120] Once SSA approves DFPS to be the child's representative payee, DFPS will generally remain the payee until DFPS conservatorship ends or until the young adult exits extended foster care. Regional SSI Coordinators oversee this process of applying for the transfer to DFPS as the representative payee. When a child or young adult exits foster care or extended foster care, the child's caregiver or the young adult must go to an SSA office to request the transfer of SSI or RSDI benefits to the caregiver or the young adult as payee.
2. SSI for a child in traditional foster care
Children in foster care may qualify for the federal benefit of Supplemental Security Income due to a mental or physical disability. Supplemental Security Income (SSI) is available to disabled children who have limited income and resources. For a child in foster care, the DFPS SSI Coordinator may apply for SSI benefits for a child who is also eligible for Title IV-E foster care assistance. If DFPS claims Title IV-E foster care assistance for the child's maintenance payment, DFPS cannot use the child's SSI benefit to offset the Title IV-E foster care payment.[121]
The decision to apply for SSI while a child is in foster care is based upon the amount of the child's foster care payment. For children in the legacy area, DFPS claims Title IV-E funding for a child above the “Basic” service level; upon implementation of Texas Child-Centered Care (T3C), the regional eligibility specialist should be consulted with questions regarding funding reimbursement. For children in CBC catchment areas, DFPS claims Title IV-E funding for all children because the IV-E match for SSCC foster care rate is higher than the maximum SSI benefit amount.
3. SSI for a child in a relative or kinship placement
As noted above, for a child in traditional foster care, the decision to apply for and claim SSI benefits is dependent on the child's Title IV-E eligibility status, but DFPS does not make foster care payments to non-licensed or kinship caregivers. The caseworker should contact the DFPS regional SSI Coordinator to inquire about applying for Social Security benefits.[122]
4. SSI Applications for youth aging out of care
While under the conservatorship of DFPS, the SSI Coordinator submits SSI applications on behalf of the youth. Under DFPS policy, if a youth in care has a disability and may be eligible for SSI, the DFPS caseworker should contact the regional SSI Coordinator to discuss applying when the youth turns 17 years old. Since youth may not meet the adult definition of disability, SSI applications should be filed well before a youth's 17th birthday to prevent delay in application processing and additional delays if an unfavorable decision needs to be appealed.[123] SSA requires each SSI recipient or potential recipient who is 18 years old to be evaluated according to adult listing of impairments.[124] Aside from individual identification, DFPS state office sends a quarterly report to regional SSI coordinators identifying youth in foster care who are 17 years old and are potentially eligible for SSI, regardless of their eligibility for Title IV-E assistance.[125]
D. Parents and Other Adult Caregivers with Disabilities and Child Welfare
Federal law prohibits governmental agencies, including child welfare and court systems, from discriminating against people with disabilities in their services, programs, and activities. Agencies in the child welfare system must provide accommodations to ensure persons with disabilities have equal opportunity to access services to ensure safety, permanency, and well-being for the children and families DFPS serves.
See the DFPS Resource Guide - Working with Persons with Disabilities for information on working with persons with disabilities in the child welfare system, including specific suggestions for reasonable accommodations for a parent with a disability when child safety is involved.
E. What Resources are Available for Children and Adults with Disabilities?
• Special Needs Training for Parents and Caregivers[126]
• Disability Rights Texas (DRTx) provides legal representation and advocacy for individuals with disabilities.[127] DRTx can help caregivers and caseworkers advocate for services for a child with disabilities in the school system, appeal denials of Medicaid services, or advocate for other community-based services, or may be appointed as a child's ad litem in limited counties.
• EveryChild Inc. provides assistance and support for children with disabilities to reside in a family setting.[128]
• Texas Health and Human Services Disability webpage includes disability-related resources and information.[129]
• Home and Community-Based Services (HCS) is a Medicaid waiver program that provides services and support for individuals with intellectual disabilities.[130]
• The Judicial Commission on Mental Health Texas Mental Health and Intellectual and Developmental Disabilities Law Bench Book is a procedural guide for Texas judges hearing cases regarding persons with mental illness and/or intellectual and developmental disabilities (IDD).[131]
• Local Intellectual and Developmental Disability Authorities (LIDDA) and Local Mental Health Authorities (LMHA) support children and adults in crisis. Local LIDDA and LMHA contacts are available on the Texas Health and Human Services webpage at Contact HHS webpage.[132]
• Navigate Life Texas is a website developed by HHS to explain resources for families with children who have disabilities and special health care needs.[133]