Damage Caps For Foster Agencies Fought by Family

By: Margie Menzel, The News Service of Florida
By: Margie Menzel, The News Service of Florida

THE CAPITAL, TALLAHASSEE, March 30, 2011 --

When the Florida Senate’s omnibus Medicaid bill passed its first committee Wednesday, it included a measure that would cap damages for pain and suffering by children in the state foster care system.

The inclusion of the new limits came over the objection of a family who took in three foster kids, only to find they’d had a horrible past.

“When we adopted our children, we weren’t aware that they had been sexually abused,” Debbie Garcia-Bengochea told the Senate Committee on Health Regulation. “We weren’t aware that they had been duct-taped to keep them quiet, that they had been tortured, that they had been required to hold each other down while the foster father – who is now serving life without parole – performed sexual acts on them.

“But we were left with all of the damage.”

The damage included the boys’ molesting other children, attacking their adoptive mother and killing the family’s pets.

Debbie and her husband, Jorge Garcia-Bengochea, spoke against a provision in the Senate Medicaid bill that would cap awards for pain and suffering by kids in the child welfare system at $200,000 to $1 million and cap economic damages at $2 million. It would also lower the amount of liability insurance carried by Florida’s 20 community based care agencies, which contract with the state to provide children’s services, from $1 million to $500,000.

Rep. Scott Plakon, R-Longwood, sponsored the House version of the measure, HB 1019, warning that the community based care agencies could lose their liability coverage without it. The nonprofit Children’s Home Society of Florida and Big Bend Community Based Care, Inc, for instance, both have told lawmakers their liability insurance had been canceled recently.

“This ultimately, if left unchecked, will be a threat to tens of thousands of children’s well-being,” Plakon said.

Critics of the bill say the community based care organizations, or CBCs, face higher premiums due to their own negligence.

The measure pits the interests of trial lawyers against those of insurance companies. It’s been bitterly contested against the backdrop of last month’s Barahona case, in which 10-year-old Nubia Barahona was beaten to death as her twin, Victor, listened to her cries. The children were found in their adoptive father’s truck on I-95, Nubia’s body decomposing in the back as Victor convulsed in the driver’s seat, both doused with toxic chemicals.

Plakon’s bill has sailed through three House committees and faces one more, Health and Human Services. In the upper chamber, it has a staunch opponent in Sen. Ronda Storms, R-Brandon, and a powerful backer in Sen. Joe Negron, R-Stuart.

Negron included the damage caps in his Medicaid omnibus bill, which passed unanimously.

The Garcia-Bengocheas, however, dealt with the Department of Children and Families, before the CBC system was in place. They adopted Brian, Matthew and James in 1998, when the brothers were 6, 5 and 3. The couple already had an 11-year-old adoptive son and had told DCF they couldn’t adopt more children if they had major problems or were acting out sexually.

What they didn’t know – and DCF didn’t tell them – was that the brothers already had a history of abusing each other and other children.

As they grew older and stronger, the boys became aggressive, were expelled from school, had to be separated from other children and broke Debbie’s jaw. The two eldest landed in the juvenile justice system. The Garcia-Bengocheas – Debbie a school principal and Jorge a youth minister – gave up their jobs to stay home and cope with their sons’ continuing offenses.

Finally they learned that the brothers suffered from reactive attachment disorder, in which children who are poorly parented at an early age evince symptoms like those the Garcia-Bengocheas were seeing. Intensive therapy was highly recommended. The couple approached attorney Lance Block, who helped them get Medicaid coverage for the boys’ treatment and win a $10 million claims bill in the 2009 legislative session.

“There was a local CBC provider in Palm Beach County that was aware of this case that actually wrote an internal memorandum saying, ‘This case will be on the front page of the newspaper if we don’t intervene.’ And nothing was done,” Block told the Senate committee Wednesday. “And we’re here to speak against Section 64 of the bill, which limits the liability of negligent CBC providers that are at least partially responsible for what happened in this case.”

Supporters of the measure point out that no CBC existed in the Boynton Beach area at the time the brothers were adopted. They also say the damage caps don’t apply in the worst cases and that claims bills like the Garcia-Bengocheas’ are always an option.

But in the current economic climate, claims bills are problematic. It took years for Marissa Amora, who at 2 was returned by child welfare workers to an abusive home and beaten nearly to death, to win a settlement from DCF for the lifetime of medical care she requires. Then in 2009, the Legislature cut her claim due to the state’s budget crisis.

“That remedy is a long time coming,” former DCF Secretary George Sheldon told the News Service. “Years. And that’s not the kind of speedy remedy these kids deserve.”

The tragedy, Sheldon said, is that the sooner abused children are treated, the greater their chances for recovery.

“If the department had stepped up to the plate at that point in time when [the Garcia-Bengocheas boys] were beginning to act out, a lot of progress could have been made,” he said. “It’s going to be a struggle for all three.”

Sheldon also said that DCF settled about 74 cases while he was there.

“Some folks were saying, ‘You’re spending money that could be used for services.’ We had risk management [staffers] do an analysis…We averaged $112,000 less per case by settling and paying for services than by fighting the cases legally.”

Both Plakon and Sheldon say more questions should be asked of both sides. A father of six, one of whom is adopted, Plakon said his bill’s opponents – who include the trial bar – often have monetary motives.

“I see a problem that needs to be solved here,” he said, “and despite the headwinds being created by some of these horrific things being more and more brought to the front during these hearings, I believe I’m doing the right thing, so I’m pressing on.”

Sheldon said the CBCs should be asked whether they’ve lost any abuse cases in court and that their insurance companies should be questioned as well.

“The best way to limit liability is to improve the quality of service you provide,” Sheldon said, “and I think that is slowly happening.”


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