Political concerns divide Kansas legislators on retooled proposal to oversee foster care system

Andrew Bahl
Topeka Capital-Journal
Attorney General Derek Schmidt has said he supports legislation that would create an independent office to examine complaints against the state's foster care system. The entity would be housed in the attorney general's office, prompting outcry from some legislators.

Kansas legislators and child welfare activists are concerned a push to institute an independent, investigatory body to examine complaints against the state's foster care system has turned political.

Backed by a long line of families frustrated by the longstanding woes in the Department of Children and Families, a bill to create an Office of the Child Advocate passed out of a House committee last month. 

It died without consideration before the full House, but it could get a second life in the Senate — with some key changes. 

Under a new proposal considered Tuesday in the Senate Judiciary Committee, the child advocate would be housed within the attorney general's office.

That would be a departure from the House proposal, which wanted to house the oversight mechanism in the Legislature. The Senate bill also would authorize a permanent legislative committee to oversee foster care issues, something widely agreed upon by all members.

Families, teachers and other individuals could file a complaint about a particular case, which could be investigated to see if wrongdoing occurred on the part of DCF and the contractors they tap to handle foster care cases.

The position would have sweeping investigatory powers to subpoena records, including medical and court records, as well as the ability to interview witnesses to examine individual cases and make recommendations about systemic improvements in the foster care system.

Four years of debating issue without finding an answer

Proponents argued it would be a key first step of building a bicameral coalition around an issue that has been debated for four years, with no final action. 

They believe there needs to be a particular sense of urgency, as the foster care system remains under fire in Kansas. A report last year from the federal Office of Inspector General found DCF didn’t ensure compliance with safety standards in 24 of the state’s 31 group homes. 

Sen. Molly Baumgardner, R-Louisburg, pointed to data showing 67 missing children in foster care currently. She also pointed to concerns about one of the contractors handling foster care cases, Saint Francis Ministries, after reporting from the Kansas Reflector uncovering questionable spending by the organization, which was shielded from DCF for nearly a year.

But the discourse could get bogged down in a charged political environment that sees Attorney General Derek Schmidt, a supporter of the bill, running for the governor’s mansion. Opponents believe putting the office under the purview of the attorney general could make it less independent.

“Whatever they say will be seen in the public and in the media as this is the Republican attorney general who is going after the administration of his political opponent," said Sen. Ethan Corson, D-Prairie Village. “Likewise, I worry that it will even give the administration the ability to discount what could be very viable findings from that office.”

Senate leader Ty Masterson dismisses concerns

Senate President Ty Masterson, R-Andover, dismissed the concerns. While he acknowledged the current political environment, Masterson said opponents were, in effect, speaking into existence potential problems.

"The perception becoming reality could only be because you would be building that perception that this person is not independent, or that this person is not qualified, trying to tie it into the political system,” he said.

Proponents underscored that the move isn't without precedent. Currently, the Office of Medicaid Inspector General, as well as a board that reviews child morbidity trends in the state, are both housed under the purview of the attorney general. 

Under the bill, the attorney general would have final authority on hiring and firing decisions for the office’s staff, as well as its budget. The advocate would be appointed by the attorney general for a four-year term but would have to be confirmed by the Senate.

Baumgardner argued many of the issues in foster care stem from the contractors and continue regardless of which party controls the governorship.

“The fact that it is someone independently elected, not appointed by the governor, not appointed by the courts, but is in an independent office is what is crucial,” she said.

The scope of the position also brought raised eyebrows, as the office can subpoena medical records and other sensitive documents as part of its case investigation.

But Baumgardner shrugged off those concerns as a “red herring," noting the frustration many families shared was an inability to get information from DCF related to their case.

“At some point, someone has to shake loose that information,” she said after the hearing.

Rep. Susan Concannon, R-Beloit, hears testimony last month on a bill to establish the Office of the Child Advocate in Kansas.

But Rep. Susan Concannon, R-Beloit, maintained the powers in the Senate version were too sweeping and amounted to "an overreach."

"It just doesn't have the guardrails that we put into ours to limit the power that the office holds," Concannon, who chairs the House Children and Seniors, said in an interview. 

She also expressed concerns that the definitions in the bill are overly broad, which could allow the office to use the powers in ways legislators did not originally intend.

Bill would expand jurisdiction of advocate

As written, the Senate version would expand the jurisdiction of the advocate to include any child getting services from DCF or any foster care contractor, as well as the Kansas Department of Corrections. The House version has a somewhat narrower definition.

"We need to make sure that definition is accurate to include those we want to include," Rachel Marsh, who heads a group of 18 organizations that includes the state's foster care contractors, told legislators

Concannon was unsure why her chamber's legislation had been stricken from the calendar but acknowledged there was still room for a deal to be reached.

"I just don't think (the Senate) version of the bill is the way to go," Concannon said

Baumgardner noted it took upward of a decade to get a similar ombudsman charged with investigating the state's Medicaid program up and running.

Doing the same for the office of the child advocate, she said, "wouldn't be a turnkey situation" and would require repeated efforts by stakeholders to improve upon whatever is passed.

"Can we come up with solutions? We can," Baumgardner said. "Can we amend it, get it up and out and started? We can."