‘Flabbergasted:’ Help for kinship care families passed unanimously, $20M price tag could derail it
Republished from Kentucky Lantern
A funding dispute between Democratic Gov. Andy Beshear and Republican lawmakers threatens to delay long-awaited financial relief for grandparents and other kinship caregivers who are raising children in Kentucky.
Beshear signed and says he supports a new law that allows relatives who take temporary custody of a child, when abuse or neglect is suspected, to later become eligible for foster care payments.
The sticking point is $20 million the Beshear administration says is needed to implement the change.
Beshear alerted lawmakers to what he called a funding omission in a letter in April — five days after he signed Senate Bill 151 into law. He asked them to use the final two days of the 2024 session to appropriate the $20 million.
The bill sponsor, Sen. Julie Raque Adams, R-Louisville, said changes were made in the bill to satisfy fiscal concerns raised in February by Cabinet for Health and Family Services (CHFS) Secretary Eric Friedlander and that she thought the issues were resolved.
“We did a committee sub over in the House with the cabinet’s proposed language, and again, everybody was on board, and it passed out overwhelmingly, with bipartisan support,” Raque Adams told the Lantern.
It’s unclear what will happen when the new law takes effect July 1.
The cabinet is “supportive of the bill, but there is a cost that must be addressed before implementation can occur,” said CHFS spokesman Brice Mitchell.
But Raque Adams, chair of the Senate Republican caucus, said implementing the law is nonnegotiable.
Beshear in his letter to lawmakers cites the state Constitution and two court cases, including a 2005 state Supreme Court decision, that he says preclude the executive branch from spending money the legislature has not appropriated.
“The omission of an appropriation is the same as its elimination,” Beshear wrote.
Constitutional law expert Sheryl Snyder, a Louisville attorney, reviewed letters sent by the Beshear administration to lawmakers and told the Lantern the cabinet is correct in that it cannot implement a bill that doesn’t have an appropriation attached.
There may be some wiggle room, however, for general budget dollars to be spent if they aren’t earmarked for another purpose, he said.
‘In shock’
When the bipartisan bill passed the legislature unanimously, Norma Hatfield, who is raising two grandchildren, thought help was finally on the way for Kentuckians like her.
Hatfield, president of the Kinship Families Coalition of Kentucky, said the funding dispute has left her “flabbergasted” and “in shock.”
“It’s not a good faith effort to try to do the best you can do with what you have to serve the children and families in Kentucky,” she said. “And in this particular case, we’re talking about the most traumatized.”
An estimated 59,000 Kentucky children are in what’s commonly called kinship care. Research shows that staying with family has better outcomes for children. But government financial support for kinship care has been lacking in part because caregivers make an important decision hastily, under stress and without all the information they need.
When the state removes a child from a home, grandparents and other family members often choose to take temporary custody rather than have the child go into state custody. State custody is the first step toward foster care. That first decision is permanent under current law which has excluded kinship caregivers who take temporary custody from ever receiving the $750 a month that foster parents receive for each child.
The new law would give kinship caregivers 120 days to apply to become foster parents for their minor relatives. It also allows children who are being removed from homes to request their preferred familial caregivers, if they are able.
Until 2013, the state offered a monthly payment of $300 per child to kinship care providers who took in children. But the state closed the kinship program to new applicants 10 years ago, citing budget pressures. Since then, Kentucky has restored some assistance, prodded in part by a class-action lawsuit that successfully argued kinship caregivers were providing essentially the same services for free that foster parents are paid for.
‘Difficulty moving forward’
During a June 19 meeting of the Interim Joint Committee on Families and Children, Raque Adams asked Lesa Dennis, the commissioner of the Department for Community Based Services (DCBS), about her plans to implement the new law.
“At this time, we are still hopeful in the near future that there will be an additional pathway for funding of Senate Bill 151,” replied Dennis, who has been in her role for about a year. “But without that support, the cabinet will have difficulty moving forward with implementation.”
The next day, Raque Adams put out a public statement criticizing the administration. “Kentucky’s vulnerable children and cherished relative and fictive kin caregivers deserve better than this administration’s selective enforcement of duly passed laws that are non-negotiable,” she said at that time.
The Republican Party of Kentucky fired off several posts on X (formerly Twitter) criticizing Beshear, including one that asked why Beshear and Kentucky Democrats “always fail the most vulnerable Ky children.”
A look back at the timeline
On Feb. 5, Raque Adams received a fiscal note from the Legislative Research Commission stating that SB 151 “should have no additional fiscal impact to the Cabinet for Health and Family Services.” That note also said “there is no anticipated fiscal impact to the Justice and Public Safety Cabinet or the Administration Office of the Courts,” according to a copy provided to the Lantern. (No fiscal note is included with SB 151 on the legislature’s website.)
But three days later, on Feb. 8, CHFS Secretary Friedlander sent a letter to Raque Adams saying the bill would cause “significant fiscal impact to the cabinet, and would need to be financed using only General Fund dollars.”
Following the Feb. 8 letter, Raque Adams said she had a phone call with Friedlander on Feb. 12. The changes the cabinet wanted were incorporated into a House committee substitute, she said. It passed out of the House committee in late February.
At that time, Raque Adams said, she believed all issues with the bill were resolved.
Beshear signed SB 151 on April 5.
Five days later, his office sent a letter to the legislature listing numerous bills, including SB 151, for which the legislature had made no appropriation.
Also on April 10, Friedlander wrote again to the General Assembly to say the bill would cost $20 million. That figure was based, he wrote, on $15.3 million going to 50% of eligible fictive kin caregivers. That also includes the cost of “additional staff to process” the 1,000 extra applications, an estimated $4.4 million each year for a total of $19.7 million.
“These costs are unlikely to be federally reimbursable because the child would remain in the relative’s/fictive kin’s care,” he wrote. That would leave the cabinet to foot the bill, he said.
Morgan P’Pool, communications manager for Senate Republican leaders, said the administration raised no concerns with lawmakers about the bill’s costs from Feb. 23 until April 10.
By then, the state budget had been passed and the session was almost over. The legislature adjourned sine die on April 15.
The two-year state budget approved this year gave DCBS around $1.8 billion annually, while the state has a record financial surplus.
Whether the cabinet can dip into its general budget dollars depends, said Snyder, “on how the language of the budget pigeonholes the funds.”
“If the funds are earmarked for certain activities, then they can’t change that by spending it on something else,” he said. “If, however, they’ve got a general appropriation for cabinet activities, then they could use some of that money for that purpose.”
Raque Adams questioned how the cabinet came up with the $20 million estimate.
“If you read the bill, we give the cabinet full administrative regulatory authority,” Raque Adams said. “So they, through regs, can design what the implementation looks like for 151. I’m not telling them what it looks like. They get to design it. So the fact that they haven’t designed what the implementation of 151 looks like, but they have a price tag associated with it, is a real disconnect for me. How can you have a price tag on implementation of a program that you haven’t designed yet?”
What’s next?
Raque Adams insists the administration is obliged to implement the new law.
“It was a law that was passed, and it’s incumbent upon the administration to implement that state law,” she said. “You don’t get to pick and choose which laws you like and which ones you don’t like. You have to implement. You have to implement what we pass.”
She added: “It’s like saying ‘I don’t have any money to pay my taxes.’ Well, you still have to pay your taxes.”
Crystal Staley, a spokeswoman for Beshear’s office, said: “Lawmakers had the opportunity to deliver the funding during the session but chose not to. It is simple: The state cannot implement programs and policies if we don’t have the funding needed to do so – and the Kentucky Supreme Court agrees.”
Indeed, Snyder, a past president of the Kentucky Bar Association, said “the appropriation clause of the Constitution provides that the legislature has the power of the purse. So unless they have appropriated funds, the executive branch has no right to spend the money that’s not been appropriated.”
“So if the situation is a statute has been passed that would require the cabinet to undertake certain action that’s not been funded then the cabinet is correct that they can’t perform the action that’s not been funded,” Snyder added.
The interim Families and Children Committee will take up this issue again during its July 30 meeting.
“The reality is that kinship caregivers thought they were getting some help and assistance, and they’re not — again,” Hatfield said.
Meanwhile, Raque Adams is “optimistic” the cabinet will implement the bill.
“It’s the right thing to do,” she said, “and we need to make the kids of Kentucky a priority.”
Kentucky Lantern is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kentucky Lantern maintains editorial independence. Contact Editor Jamie Lucke for questions: info@kentuckylantern.com. Follow Kentucky Lantern on Facebook and Twitter. Kentucky Lantern stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0.
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