[House Report 110-669]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-669
======================================================================
STOP CHILD ABUSE IN RESIDENTIAL PROGRAMS FOR TEENS ACT OF 2008
_______
May 22, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. George Miller of California, from the Committee on Education and
Labor, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 5876]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 5876) to require certain standards and
enforcement provisions to prevent child abuse and neglect in
residential programs, and for other purposes, having considered
the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Stop Child Abuse in Residential
Programs for Teens Act of 2008''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Assistant secretary.--The term ``Assistant Secretary''
means the Assistant Secretary for Children and Families of the
Department of Health and Human Services.
(2) Child.--The term ``child'' means an individual who has
not attained the age of 18.
(3) Child abuse and neglect.--The term ``child abuse and
neglect'' has the meaning given such term in section 111 of the
Child Abuse Prevention and Treatment Act (42 U.S.C. 5106g).
(4) Covered program.--
(A) In general.--The term ``covered program'' means
each location of a program not operated by a
governmental entity that, with respect to one or more
children who are unrelated to the owner or operator of
the program--
(i) provides a residential environment, such
as--
(I) a program with a wilderness or
outdoor experience, expedition, or
intervention;
(II) a boot camp experience or other
experience designed to simulate
characteristics of basic military
training or correctional regimes;
(III) a therapeutic boarding school;
or
(IV) a behavioral modification
program; and
(ii) operates with a focus on serving
children with--
(I) emotional, behavioral, or mental
health problems or disorders; or
(II) problems with alcohol or
substance abuse.
(B) Exclusion.--The term ``covered program'' does not
include--
(i) a hospital licensed by the State;
(ii) a foster family home or group home that
provides 24-hour substitute care for children
placed away from their parents or guardians and
for whom the State child welfare services
agency has placement and care responsibility
and that is licensed and regulated by the State
as a foster family home or group home; or
(iii) a psychiatric residential treatment
facility that is certified as meeting the
requirements specified in regulations
promulgated for such facilities under section
1905(h)(1)(A) of the Social Security Act and
that provides psychiatric services for which
medical assistance is available under a State
plan under title XIX of such Act.
(5) Protection and advocacy system.--The term ``protection
and advocacy system'' means a protection and advocacy system
established under section 143 of the Developmental Disabilities
Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15043).
(6) State.--The term ``State'' has the meaning given such
term in section 111 of the Child Abuse Prevention and Treatment
Act.
SEC. 3. STANDARDS AND ENFORCEMENT.
(a) Minimum Standards.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, the Assistant Secretary for Children
and Families of the Department of Health and Human Services
shall require each location of a covered program that
individually or together with other locations has an effect on
interstate commerce, in order to provide for the basic health
and safety of children at such a program, to meet the following
minimum standards:
(A) Child abuse and neglect shall be prohibited.
(B) Disciplinary techniques or other practices that
involve the withholding of essential food, water,
clothing, shelter, or medical care necessary to
maintain physical health, mental health, and general
safety, shall be prohibited.
(C) The protection and promotion of the right of each
child at such a program to be free from physical and
mechanical restraints and seclusion (as such terms are
defined in section 595 of the Public Health Service Act
(42 U.S.C. 290jj)) to the same extent and in the same
manner as a non-medical, community-based facility for
children and youth is required to protect and promote
the right of its residents to be free from such
restraints and seclusion under such section 595,
including the prohibitions and limitations described in
subsection (b)(3) of such section.
(D) Acts of physical or mental abuse designed to
humiliate, degrade, or undermine a child's self-respect
shall be prohibited.
(E) Each child at such a program shall have
reasonable access to a telephone, and be informed of
their right to such access, for making and receiving
phone calls with as much privacy as possible, and shall
have access to the appropriate State or local child
abuse reporting hotline number, and the national
hotline number referred to in subsection (c)(2).
(F) Each staff member, including volunteers, at such
a program shall be required, as a condition of
employment, to become familiar with what constitutes
child abuse and neglect, as defined by State law.
(G) Each staff member, including volunteers, at such
a program shall be required, as a condition of
employment, to become familiar with the requirements,
including with State law relating to mandated
reporters, and procedures for reporting child abuse and
neglect in the State in which such a program is
located.
(H) Full disclosure, in writing, of staff
qualifications and their roles and responsibilities at
such program, including medical, emergency response,
and mental health training, to parents or legal
guardians of children at such a program, including
providing information on any staff changes, including
changes to any staff member's qualifications, roles, or
responsibilities, not later than 10 days after such
changes occur.
(I) Each staff member at a covered program described
in subclause (I) or (II) of section 2(4)(A)(i) shall be
required, as a condition of employment, to be familiar
with the signs, symptoms, and appropriate responses
associated with heatstroke, dehydration, and
hypothermia.
(J) Each staff member, including volunteers, shall be
required, as a condition of employment, to submit to a
criminal history check, including a name-based search
of the National Sex Offender Registry established
pursuant to the Adam Walsh Child Protection and Safety
Act of 2006 (Public Law 109-248; 42 U.S.C. 16901 et
seq.), a search of the State criminal registry or
repository in the State in which the covered program is
operating, and a Federal Bureau of Investigation
fingerprint check. An individual shall be ineligible to
serve in a position with any contact with children at a
covered program if any such record check reveals a
felony conviction for child abuse or neglect, spousal
abuse, a crime against children (including child
pornography), or a crime involving violence, including
rape, sexual assault, or homicide, but not including
other physical assault or battery.
(K) Policies and procedures for the provision of
emergency medical care, including policies for staff
protocols for implementing emergency responses.
(L) All promotional and informational materials
produced by such a program shall include a hyperlink to
or the URL address of the website created by the
Assistant Secretary pursuant to subsection (c)(1)(A).
(M) Policies to require parents or legal guardians of
a child attending such a program--
(i) to notify, in writing, such program of
any medication the child is taking;
(ii) to be notified within 24 hours of any
changes to the child's medical treatment and
the reason for such change; and
(iii) to be notified within 24 hours of any
missed dosage of prescribed medication.
(N) Procedures for notifying parents or legal
guardians with children at such a program of any--
(i) on-site investigation of a report of
child abuse and neglect;
(ii) violation of the health and safety
standards described in this paragraph; and
(iii) violation of State licensing standards
developed pursuant to section 114(b)(1) of the
Child Abuse Prevention and Treatment Act, as
added by section 8 of this Act.
(O) Other standards the Assistant Secretary
determines appropriate to provide for the basic health
and safety of children at such a program.
(2) Regulations.--
(A) Interim regulations.--Not later than 180 days
after the date of the enactment of this Act, the
Assistant Secretary shall promulgate and enforce
interim regulations to carry out paragraph (1).
(B) Public comment.--The Assistant Secretary shall,
for a 90-day period beginning on the date of the
promulgation of interim regulations under subparagraph
(A) of this paragraph, solicit and accept public
comment concerning such regulations. Such public
comment shall be submitted in written form.
(C) Final regulations.--Not later than 90 days after
the conclusion of the 90-day period referred to in
subparagraph (B) of this paragraph, the Assistant
Secretary shall promulgate and enforce final
regulations to carry out paragraph (1).
(b) Monitoring and Enforcement.--
(1) Inspections.--The Assistant Secretary shall establish a
process for conducting unannounced site inspections of each
location of a covered program to determine compliance with the
standards required under subsection (a)(1). Such inspections
shall--
(A) begin not later than the date on which the
Assistant Secretary promulgates interim regulations
under subsection (a)(2)(A); and
(B) be conducted at each location of each covered
program not less often than once every two years, until
such time as the Assistant Secretary has determined a
State has appropriate health and safety licensing
requirements, monitoring, and enforcement of covered
programs in such State, as determined in accordance
with section 114(c) of the Child Abuse Prevention and
Treatment Act, as added by section 8 of this Act.
(2) On-going review process.--Not later than 180 days after
the date of the enactment of this Act, the Assistant Secretary
shall implement an on-going review process for investigating
and evaluating reports of child abuse and neglect at covered
programs received by the Assistant Secretary from the
appropriate State, in accordance with section 114(b)(3) of the
Child Abuse Prevention and Treatment Act, as added by section 8
of this Act. Such review process shall--
(A) include an investigation to determine if a
violation of the standards required under subsection
(a)(1) has occurred;
(B) include an assessment of the State's performance
with respect to appropriateness of response to and
investigation of reports of child abuse and neglect at
covered programs and appropriateness of legal action
against responsible parties in such cases;
(C) be completed not later than 60 days after receipt
by the Assistant Secretary of such a report;
(D) not interfere with an investigation by the State
or a subdivision thereof; and
(E) be implemented in each State in which a covered
program operates until such time as each such State has
satisfied the requirements under section 114(c) of the
Child Abuse Prevention and Treatment Act, as added by
section 8 of this Act, as determined by the Assistant
Secretary, or two years has elapsed from the date that
such review process is implemented, whichever is later.
(3) Civil penalties.--Not later than 180 days after the date
of the enactment of this Act, the Assistant Secretary shall
promulgate regulations establishing civil penalties for
violations of the standards required under subsection (a)(1).
The regulations establishing such penalties shall incorporate
the following:
(A) Any owner or operator of a covered program at
which the Assistant Secretary has found a violation of
the standards required under subsection (a)(1) may be
assessed a civil penalty not to exceed $50,000 per
violation.
(B) All penalties collected under this subsection
shall be deposited in the appropriate account of the
Treasury of the United States.
(c) Dissemination of Information.--The Assistant Secretary shall
establish, maintain, and disseminate information about the following:
(1) Websites made available to the public that contain, at a
minimum, the following:
(A) The name and each location of each covered
program, and the name of each owner and operator of
each such program, operating in each State, and
information regarding--
(i) each such program's history of violations
of--
(I) regulations promulgated pursuant
to subsection (a); and
(II) section 114(b)(1) of the Child
Abuse Prevention and Treatment Act, as
added by section 8 of this Act;
(ii) each such program's current status with
the State licensing requirements under section
114(b)(1) of the Child Abuse Prevention and
Treatment Act, as added by section 8 of this
Act;
(iii) any deaths that occurred to a child
while under the care of such a program,
including any such deaths that occurred in the
five year period immediately preceding the date
of the enactment of this Act;
(iv) owners or operators of a covered program
that was found to be in violation of the
standards required under subsection (a)(1), or
a violation of the licensing standards
developed pursuant to section 114(b)(1) of the
Child Abuse Prevention and Treatment Act, as
added by section 8 of this Act, and who
subsequently own or operate another covered
program; and
(v) any penalties levied under subsection
(b)(3), any judgments or orders issued by a
court pursuant to section 5, and any other
penalties levied by the State, against each
such program.
(B) Information on best practices for helping
adolescents with mental health disorders, conditions,
behavioral challenges, or alcohol or substance abuse,
including information to help families access effective
resources in their communities.
(2) A national toll-free telephone hotline to receive
complaints of child abuse and neglect at covered programs and
violations of the standards required under subsection (a)(1).
(d) Action.--The Assistant Secretary shall establish a process to--
(1) ensure complaints of child abuse and neglect received by
the hotline established pursuant to subsection (c)(2) are
promptly reviewed by persons with expertise in evaluating such
types of complaints;
(2) immediately notify the State, appropriate local law
enforcement, and the appropriate protection and advocacy system
of any credible complaint of child abuse and neglect at a
covered program received by the hotline;
(3) investigate any such credible complaint not later than 30
days after receiving such complaint to determine if a violation
of the standards required under subsection (a)(1) has occurred;
and
(4) ensure the collaboration and cooperation of the hotline
established pursuant to subsection (c)(2) with other
appropriate National, State, and regional hotlines, and, as
appropriate and practicable, with other hotlines that might
receive calls about child abuse and neglect at covered
programs.
SEC. 4. ENFORCEMENT BY THE ATTORNEY GENERAL.
If the Assistant Secretary determines that a violation of subsection
(a)(1) of section 3 has not been remedied through the enforcement
process described in subsection (b)(3) of such section, the Assistant
Secretary shall refer such violation to the Attorney General for
appropriate action. Regardless of whether such a referral has been
made, the Attorney General may, sua sponte, file a complaint in any
court of competent jurisdiction seeking equitable relief or any other
relief authorized by this Act for such violation.
SEC. 5. PRIVATE RIGHT OF ACTION.
(a) Maintenance of Action.--Any person suffering an injury-in-fact
traceable to a violation of a regulation promulgated pursuant to
section 3(a) may bring suit or a claim demanding relief.
(b) Relief.--A court hearing a claim or suit under subsection (a) may
order any appropriate equitable remedy and award damages, including
punitive damages and reasonable attorneys' fees, for a violation of a
regulation promulgated pursuant to section 3(a).
(c) Limitation.--The provisions of section 7 of the Civil Rights of
Institutionalized Persons Act (42 U.S.C. 1997e) shall not apply to any
action brought under this Act.
SEC. 6. REPORT.
Not later than one year after the date of the enactment of this Act
and annually thereafter, the Secretary of Health and Human Services, in
coordination with the Attorney General shall submit to the Committee on
Education and Labor of the House of Representatives and the Committee
on Health, Education, Labor, and Pensions of the Senate, a report on
the activities carried out by the Assistant Secretary and the Attorney
General under this Act, including--
(1) a description of the number and types of covered programs
inspected by the Assistant Secretary pursuant to section
3(b)(1);
(2) a description of types of violations of health and safety
standards found by the Assistant Secretary and any penalties
assessed;
(3) a summary of findings from on-going reviews conducted by
the Assistant Secretary pursuant to section 3(b)(2);
(4) a summary of State progress in meeting the requirements
of this Act, including the requirements under section 114 of
the Child Abuse Prevention and Treatment Act, as added by
section 8 of this Act; and
(5) a summary of the Secretary's oversight activities and
findings conducted pursuant to subsection (d) of such section
114.
SEC. 7. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated to the Secretary of Health and
Human Services $50,000,000 for each of fiscal years 2009 through 2013
to carry out this Act (excluding the amendment made by section 8 of
this Act).
SEC. 8. ADDITIONAL ELIGIBILITY REQUIREMENTS FOR GRANTS TO STATES TO
PREVENT CHILD ABUSE AND NEGLECT AT RESIDENTIAL
PROGRAMS.
(a) In General.--Title I of the Child Abuse Prevention and Treatment
Act (42 U.S.C. 5101 et seq.) is amended by adding at the end the
following new section:
``SEC. 114. ADDITIONAL ELIGIBILITY REQUIREMENTS FOR GRANTS TO STATES TO
PREVENT CHILD ABUSE AND NEGLECT AT RESIDENTIAL
PROGRAMS.
``(a) Definitions.--In this section:
``(1) Child.--The term `child' means an individual who has
not attained the age of 18.
``(2) Covered program.--
``(A) In general.--The term `covered program' means
each location of a program operated by a public or
private entity that, with respect to one or more
children who are unrelated to the owner or operator of
the program--
``(i) provides a residential environment,
such as--
``(I) a program with a wilderness or
outdoor experience, expedition, or
intervention;
``(II) a boot camp experience or
other experience designed to simulate
characteristics of basic military
training or correctional regimes;
``(III) a therapeutic boarding
school; or
``(IV) a behavioral modification
program; and
``(ii) operates with a focus on serving
children with--
``(I) emotional, behavioral, or
mental health problems or disorders; or
``(II) problems with alcohol or
substance abuse.
``(B) Exclusion.--The term `covered program' does not
include--
``(i) a hospital licensed by the State;
``(ii) a foster family home or group home
that provides 24-hour substitute care for
children placed away from their parents or
guardians and for whom the State child welfare
services agency has placement and care
responsibility and that is licensed and
regulated by the State as a foster family home
or group home; or
``(iii) a psychiatric residential treatment
facility that is certified as meeting the
requirements specified in regulations
promulgated for such facilities under section
1905(h)(1)(A) of the Social Security Act and
that provides psychiatric services for which
medical assistance is available under a State
plan under title XIX of such Act.
``(3) Protection and advocacy system.--The term `protection
and advocacy system' means a protection and advocacy system
established under section 143 of the Developmental Disabilities
Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15043).
``(b) Eligibility Requirements.--To be eligible to receive a grant
under section 106, a State shall--
``(1) not later than three years after the date of the
enactment of this section, develop policies and procedures to
prevent child abuse and neglect at covered programs operating
in such State, including having in effect health and safety
licensing requirements applicable to and necessary for the
operation of each location of such covered programs that
include, at a minimum--
``(A) standards that meet or exceed the standards
required under section 3(a)(1) of the Stop Child Abuse
in Residential Programs for Teens Act of 2008;
``(B) the provision of essential food, water,
clothing, shelter, and medical care necessary to
maintain physical health, mental health, and general
safety of children at such programs;
``(C) policies for emergency medical care
preparedness and response, including minimum staff
training and qualifications for such responses; and
``(D) notification to appropriate staff at covered
programs if their position of employment meets the
definition of mandated reporter, as defined by the
State;
``(2) develop policies and procedures to monitor and enforce
compliance with the licensing requirements developed in
accordance with paragraph (1), including--
``(A) designating an agency to be responsible, in
collaboration and consultation with State agencies
providing human services (including child protective
services, and services to children with emotional,
psychological, developmental, or behavioral
dysfunctions, impairments, disorders, or alcohol or
substance abuse), State law enforcement officials, the
appropriate protection and advocacy system, and courts
of competent jurisdiction, for monitoring and enforcing
such compliance;
``(B) a State licensing application process through
which any individual seeking to operate a covered
program would be required to disclose all previous
substantiated reports of child abuse and neglect and
all child deaths at any businesses previously or
currently owned or operated by such individual, except
that such reports shall not contain any personally
identifiable information relating to the identity of
individuals who were the victims of such child abuse
and neglect;
``(C) conducting unannounced site inspections not
less often than once every two years at each location
of a covered program;
``(D) creating a database, to be integrated with the
annual State data reports required under section
106(d), of reports of child abuse and neglect at
covered programs operating in the State, except that
such reports shall not contain any personally
identifiable information relating to the identity of
individuals who were the victims of such child abuse
and neglect; and
``(E) implementing a policy of graduated sanctions,
including fines and suspension and revocation of
licences, against covered programs operating in the
State that are out of compliance with such health and
safety licensing requirements;
``(3) if the State is not yet satisfying the requirements of
this subsection, in accordance with a determination made
pursuant to subsection (c), develop policies and procedures for
notifying the Secretary and the appropriate protection and
advocacy system of any report of child abuse and neglect at a
covered program operating in the State not later than 30 days
after the appropriate State entity, or subdivision thereof,
determines such report should be investigated and not later
than 48 hours in the event of a fatality;
``(4) if the Secretary determines that the State is
satisfying the requirements of this subsection, in accordance
with a determination made pursuant to subsection (c), develop
policies and procedures for notifying the Secretary if--
``(A) the State determines there is evidence of a
pattern of violations of the standards required under
paragraph (1) at a covered program operating in the
State or by an owner or operator of such a program; or
``(B) there is a child fatality at a covered program
operating in the State;
``(5) develop policies and procedures for establishing and
maintaining a publicly available database of all covered
programs operating in the State, including the name and each
location of each such program and the name of the owner and
operator of each such program, information on reports of child
abuse and neglect at such programs (except that such reports
shall not contain any personally identifiable information
relating to the identity of individuals who were the victims of
such child abuse and neglect), violations of standards required
under paragraph (1), and all penalties levied against such
programs;
``(6) annually submit to the Secretary a report that
includes--
``(A) the name and each location of all covered
programs, including the names of the owners and
operators of such programs operating in the State, and
any violations of State licensing requirements
developed pursuant to subsection (b)(1); and
``(B) a description of State activities to monitor
and enforce such State licensing requirements,
including the names of owners and operators of each
covered program that underwent a site inspection by the
State, and a summary of the results and any actions
taken; and
``(7) if the Secretary determines that the State is
satisfying the requirements of this subsection, in accordance
with a determination made pursuant to subsection (c), develop
policies and procedures to report to the appropriate protection
and advocacy system any case of the death of an individual
under the control or supervision of a covered program not later
than 48 hours after the State is informed of such death.
``(c) Secretarial Determination.--The Secretary shall not determine
that a State's licensing requirements, monitoring, and enforcement of
covered programs operating in the State satisfy the requirements of
this subsection (b) unless--
``(1) the State implements licensing requirements for such
covered programs that meet or exceed the standards required
under subsection (b)(1);
``(2) the State designates an agency to be responsible for
monitoring and enforcing compliance with such licensing
requirements;
``(3) the State conducts unannounced site inspections of each
location of such covered programs not less often than once
every two years;
``(4) the State creates a database of such covered programs,
to include information on reports of child abuse and neglect at
such programs (except that such reports shall not contain any
personally identifiable information relating to the identity of
individuals who were the victims of such child abuse and
neglect);
``(5) the State implements a policy of graduated sanctions,
including fines and suspension and revocation of licenses
against such covered programs that are out of compliance with
the health and safety licensing requirements under subsection
(b)(1); and
``(6) after a review of assessments conducted under section
3(b)(2)(B) of the Stop Child Abuse in Residential Programs for
Teens Act of 2008, the Secretary determines the State is
appropriately investigating and responding to allegations of
child abuse and neglect at such covered programs.
``(d) Oversight.--
``(1) In general.--Beginning two years after the date of the
enactment of the Stop Child Abuse in Residential Programs for
Teens Act of 2008, the Secretary shall implement a process for
continued monitoring of each State that is determined to be
satisfying the licensing, monitoring, and enforcement
requirements of subsection (b), in accordance with a
determination made pursuant to subsection (c), with respect to
the performance of each such State regarding--
``(A) preventing child abuse and neglect at covered
programs operating in each such State; and
``(B) enforcing the licensing standards described in
subsection (b)(1).
``(2) Evaluations.--The process required under paragraph (1)
shall include in each State, at a minimum--
``(A) an investigation not later than 60 days after
receipt by the Secretary of a report from a State, or a
subdivision thereof, of child abuse and neglect at a
covered program operating in the State, and submission
of findings to appropriate law enforcement or other
local entity where necessary, if the report indicates--
``(i) a child fatality at such program; or
``(ii) there is evidence of a pattern of
violations of the standards required under
subsection (b)(1) at such program or by an
owner or operator of such program;
``(B) annually, a random sample of review of cases of
reports of child abuse and neglect investigated at
covered programs operating in the State to assess the
State's performance with respect to the appropriateness
of response to and investigation of reports of child
abuse and neglect at covered programs and the
appropriateness of legal actions taken against
responsible parties in such cases; and
``(C) unannounced site inspections of covered
programs operating in the State to monitor compliance
with the standards required under section 3(a) of the
Stop Child Abuse in Residential Programs for Teens Act
of 2008.
``(3) Enforcement.--If the Secretary determines, pursuant to
an evaluation under this subsection, that a State is not
adequately implementing, monitoring, and enforcing the
licensing requirements of subsection (b)(1), the Secretary
shall require, for a period of not less than one year, that--
``(A) the State shall inform the Secretary of each
instance there is a report to be investigated of child
abuse and neglect at a covered program operating in the
State; and
``(B) the Secretary and the appropriate local agency
shall jointly investigate such report.''.
(b) Authorization of Appropriations.--Section 112(a)(1) of the Child
Abuse Prevention and Treatment Act (42 U.S.C. 5106h(a)(1)) is amended
by inserting before the period at the end the following: ``, and
$200,000,000 for each of fiscal years 2009 through 2013''.
(c) Conforming Amendments.--
(1) Coordination with available resources.--Section
103(c)(1)(D) of the Child Abuse Prevention and Treatment Act
(42 U.S.C. 5104(c)(1)(D)) is amended by inserting after
``specific'' the following: ``(including reports of child abuse
and neglect occurring at covered programs (except that such
reports shall not contain any personally identifiable
information relating to the identity of individuals who were
the victims of such child abuse and neglect), as such term is
defined in section 114)''.
(2) Further requirement.--Section 106(b)(1) of the Child
Abuse Prevention and Treatment Act (42 U.S.C. 5106a(b)(1)) is
amended by adding at the end the following new subparagraph:
``(C) Further requirement.--To be eligible to receive
a grant under this section, a State shall comply with
the requirements under section 114(b) and shall include
in the State plan submitted pursuant to subparagraph
(A) a description of the activities the State will
carry out to comply with the requirements under such
section 114(b).''.
(3) Annual state data reports.--Section 106(d) of the Child
Abuse Prevention and Treatment Act (42 U.S.C. 5106a(d)) is
amended--
(A) in paragraph (1), by inserting before the period
at the end the following: ``(including reports of child
abuse and neglect occurring at covered programs (except
that such reports shall not contain any personally
identifiable information relating to the identity of
individuals who were the victims of such child abuse
and neglect), as such term is defined in section
114)''; and
(B) in paragraph (6), by inserting before the period
at the end the following: ``or who were in the care of
a covered program, as such term is defined in section
114''.
(d) Clerical Amendment.--Section 1(b) of the Child Abuse Prevention
and Treatment Act (42 U.S.C. 5101 note) is amended by inserting after
the item relating to section 113 the following new item:
``Sec. 114. Additional eligibility requirements for grants to States to
prevent child abuse and neglect at residential programs.''.
I. Purpose
The purpose of H.R. 5876, the ``Stop Child Abuse in
Residential Programs for Teens Act of 2008'' is to ensure the
safety of children attending residential programs that focus on
serving children with emotional, behavioral or mental health
problems by requiring basic health and safety standards and
enforcement.
II. Committee Action
110TH CONGRESS
Full Committee hearing on ``Cases of Child Neglect and Abuse at Private
Residential Treatment Facilities''
On Thursday, October 10, 2007, the Committee on Education
and Labor held a hearing in Washington, D.C. entitled ``Cases
of Child Neglect and Abuse at Private Residential Treatment
Facilities.'' The purpose of the hearing was to gain an
understanding of the nature and magnitude of abuses committed
against children at private residential programs. The hearing
focused on ten cases of neglect and abuse that resulted in the
death of a child, and included testimony from parents whose
children died at abusive programs. Testifying before the full
Committee were Greg Kutz, Managing Director, Forensic Audits
and Special Investigations, U.S. Government Accountability
Office; Cynthia Harvey, Mother of a child victim; Bob Bacon,
Father of a child victim; Paul Lewis, Father of a child victim;
Allison Pinto, Assistant Professor, Louis de la Parte Florida
Medical Health Institute, University of South Florida; and Jan
Moss, Executive Director, National Association of Therapeutic
Schools and Programs.
Full Committee Hearing: ``Child Abuse and Deceptive Marketing by
Residential Programs for Teens''
On Thursday, April 24, 2008, the Committee on Education and
Labor held a hearing in Washington, D.C. entitled ``Child Abuse
and Deceptive Marketing by Residential Programs for Teens.''
The purpose of the hearing was to highlight eight additional
cases of neglect and abuse, some of which resulted in death,
and to examine the questionable marketing practices employed by
private residential programs and referral agencies to entice
parents. The hearing included testimony from individuals who
were abused, or witnessed abuse, as teenagers enrolled in
residential programs. Further, this hearing demonstrated the
degree to which the states and the federal government do not
sufficiently regulate and oversee private residential programs.
Testifying before the full Committee were Greg Kutz, Managing
Director, Forensic Audits and Special Investigations, U.S.
Government Accountability Office; Kathryn Whitehead, Former
Program Participant, Mountain Mission School, Condon, Montana;
Jon Martin-Crawford, Former Program Participant, the Family
Foundation School, Hancock, New York; Christopher Bellonci, MD,
Medical Director and Senior Clinical Consultant, Walker School,
Needham, Massachusetts; and Kay Brown, Director, Education,
Workforce and Income Security, U.S. Government Accountability
Office.
Introduction of the ``Stop Child Abuse in Residential Programs for
Teens Act of 2008''
On April 23, 2008, Representatives George Miller of
California, Carolyn McCarthy of New York, Donald Payne, Phil
Hare, Ruben Hinojosa, Robert C. ``Bobby'' Scott of Virginia,
Raul M. Grijalva, Danny Davis of Illinois, Dale Kildee, Lynn
Woolsey, and Dennis Kucinich introduced H.R. 5876, the ``Stop
Child Abuse in Residential Programs for Teens Act of 2008.''
The bill sets federal health and safety standards for private
residential programs for children under the age of eighteen and
requires the Assistant Secretary for Children and Families of
the Department of Health and Human Services to monitor and
enforce the standards. The bill also amends the Child Abuse and
Prevention Treatment Act (CAPTA) to require states to implement
similar licensing standards for public and private residential
programs.
Full Committee markup of H.R. 5876
On Wednesday, May 14, 2008, the Committee on Education and
Labor considered H.R. 5876 in legislative session, and reported
the bill favorably, as amended, to the House of Representatives
by a vote of 27-16. The Committee adopted the following
amendments:
1. An amendment in the nature of a substitute offered by
Mr. Miller, adopted by voice vote. The amendment in the nature
of a substitute contains minor technical changes and the
following additions to H.R. 5876:
Amends the Child Abuse Prevention and Treatment
Act to require the state licensing and enforcement provisions
included in H.R. 5876 apply to public residential programs as
well as private programs.
Amends the Child Abuse Prevention and Treatment
Act to require states that are meeting the licensing and
enforcement requirements of H.R. 5876 to develop policies and
procedures for reporting to the appropriate protection and
advocacy system any case of death of an individual at a covered
program, not later than forty-eight hours after the state is
informed of the death.
2. An amendment offered by Mr. Rob Bishop (UT), adopted by
voice vote. The amendment clarifies the confidential nature of
personally identifiable information of abuse reports in state
and federal databases.
The Committee rejected five amendments by rollcall vote.
III. Summary of the Bill
Federal response
H.R. 5876 provides immediate federal action to ensure the
safety of children attending private residential programs that
focus on serving children with emotional, behavioral, or mental
health problems or disorders, or problems with alcohol or
substance abuse. This includes programs such as therapeutic
wilderness programs, boot camps, therapeutic boarding schools,
and behavioral modification programs. The bill requires the
Assistant Secretary for Children and Families of the Department
of Health and Human Services (HHS) to oversee and enforce
minimum standards that provide for the basic health and safety
of children at covered programs. These standards include
prohibitions on inappropriate and abusive practices of care
giving, and requirements for staff training, reasonable access
to a telephone, disclosure to parents of staff roles,
responsibilities, and training, procedures for notification to
parents of changes to a child's medical treatment, and
notification to parents of violations of health and safety
standards. The standards also require covered programs to
include a hyperlink or URL address of an HHS website on all
promotional and informational material. The Assistant Secretary
must promulgate regulations and enforce interim regulations on
these standards within 180 days after enactment of H.R. 5876.
H.R. 5876 requires the Assistant Secretary to monitor
compliance with and enforce these standards. The bill requires
the Assistant Secretary to conduct unannounced site inspections
of all covered programs at least once every two years in order
to evaluate compliance with the federal health and safety
standards. The bill also establishes an ongoing review process
for investigating and evaluating reports of child abuse and
neglect at covered programs. H.R. 5876 requires states to
inform the Secretary within thirty days of a report of child
abuse and neglect at a covered program and within forty-eight
hours of a fatality at a covered program. The Assistant
Secretary is required to investigate these reports to determine
if a violation of the federal standards occurred. The bill
further requires that such reviews not interfere with the
state's investigation, be completed within sixty days, and
include an assessment of the state's performance with respect
to the appropriateness of response, investigation, and legal
action against responsible parties. H.R. 5876 specifies that
the Assistant Secretary will discontinue both the scheduled
unannounced site inspections and the ongoing review process in
a state meeting the licensing standards and enforcement process
required under the bill.
In order to enforce compliance with the federal minimum
standards, the bill requires the Assistant Secretary to
establish civil penalties for violations of the federal
standards. Owner or operators of covered programs are subject
to civil penalties of $50,000 per violation of any of the
federal standards.
If the Assistant Secretary determines that the
administrative enforcement process authorized by this bill has
not remedied a violation of a regulation promulgated under the
bill, the Assistant Secretary must refer the ongoing violation
to the Attorney General to take action to remedy the violation.
While the Assistant Secretary must make a referral in certain
circumstances, the Attorney General may commence an action to
compel compliance with the regulations without such a referral.
In addition to the enforcement authority granted to the
Assistant Secretary and the Attorney General, an individual
harmed because of a violation of a regulation promulgated
pursuant to H.R. 5876 may commence a lawsuit to obtain relief
for the violation. While such a suit brought for a violation of
a regulation arises under federal law, the bill does not create
exclusive jurisdiction in federal courts. A court that hears an
action by an individual who claims harm or the likelihood of
harm for a violation of a regulation may award money damages,
including punitive damages where warranted, and attorneys'
fees, and may fashion an appropriate equitable remedy,
including injunctive relief. Because children participating in
a covered program are not to be considered prisoners, the
restrictions, limitations, and procedures called for in the
Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997e,
do not apply to a suit brought for a violation of a regulation
promulgated under this bill.
The Assistant Secretary is required to establish and
maintain publicly available websites that include a database
with information on each covered program and the program's
history of violations of the federal and state standards
required by the bill. The database must also include
information on any fatalities to a child under the care of a
program, as well as information on owners or operators who are
in violation of the standards in one program and who own or
operate another covered program. The database shall also
include information on any penalties levied against a program
by the Assistant Secretary and any judgments or orders issued
by a court against a program. A website must also provide
information on best practices for helping adolescents with
mental health problems. The Assistant Secretary is also
required to establish a national toll-free telephone hotline to
receive complaints of child abuse and neglect at covered
programs.
Fifty million dollars are authorized annually from fiscal
year 2009 through 2013 for the Assistant Secretary to carry out
these activities.
State response
H.R. 5876 amends the Child Abuse Prevention and Treatment
Act (CAPTA) to require that states take the primary
responsibility for licensing public and private residential
programs that focus on serving children with emotional,
behavioral, or mental health problems or disorders, or problems
with alcohol or substance abuse. The bill provides states three
years to develop policies and procedures for preventing child
abuse and neglect at covered programs operating in the state,
including health and safety licensing requirements necessary
for the operation of a program. The standards must meet or
exceed the federal standards in the bill, address the provision
of essential food, water, clothing, shelter, and medical care
necessary to maintain physical health, mental health, and
general safety of children, and meet other standards.
States are required to monitor and enforce compliance with
the licensing requirements including, conducting unannounced
site inspections at least once every two years, creating a
database of reports of child abuse and neglect at covered
programs, and implementing a policy of graduated sanctions
against programs that are out of compliance. States must also
develop a publicly available database of covered programs
operating in the state, including information on reports of
child abuse and neglect and violations of state licensing
standards.
Until states are adequately meeting the requirements of
H.R. 5876, as determined by the Secretary of Health and Human
Services, states must report instances of child abuse and
neglect at covered programs within thirty days to the Secretary
and to the appropriate protection and advocacy system in the
state. These reports must be made within forty-eight hours of a
child fatality at a covered program. Once a state is adequately
meeting the requirements of the bill, however, states are no
longer required to report all cases of child abuse and neglect
at covered programs directly to the Secretary. Instead, states
in compliance with the standards are required to make reports
to the Secretary only in instances of a child fatality at a
covered program and when there is evidence of a pattern of
violations of the standards by an owner or operator. In states
meeting the requirements, the Secretary must annually conduct a
random sample of case reviews of child abuse and neglect at
covered programs in order to evaluate the appropriateness of
the response to and investigation of reports of child abuse and
neglect. The Secretary must also conduct unannounced site
inspections of covered programs in the state but no longer must
visit each location once every two years. If the Secretary then
determines the state is not adequately implementing, monitoring
and enforcing the licensing requirements, the Secretary shall
take additional steps.
Authorization for Title I of CAPTA is increased to
$200,000,000 for each of fiscal year 2009-2013.
IV. Committee Views
Overview
Since the early 1990's, a wide range of state agencies and
private companies have established hundreds of residential
programs for teens in the United States, including wilderness
programs, boot camps, therapeutic boarding schools, and
behavior modification programs. The stated purpose of many of
these programs is to provide a less restrictive alternative to
incarceration or hospitalization for children with emotional or
behavioral problems. A 2006 report by the Substance Abuse and
Mental Health Services Administration (SAMHSA) identified
seventy-one different types of residential programs across the
country.\1\ An investigation by the Government Accountability
Office (GAO) found private residential programs listed in
forty-eight states.\2\
---------------------------------------------------------------------------
\1\U.S. Department of Health and Human Services, State Regulation
of Residential Facilities for Children with Mental Illness. DHHS Pub.
No. (SMA) 07-4167. Rockville, Maryland: Center for Mental Health
Services, Substance Abuse and Mental Health Services Administration,
2006.
\2\GAO, Residential Programs: Selected Cases of Death, Abuse, and
Deceptive Marketing, GAO-08-713T (Washington, D.C.: April 24, 2008).
---------------------------------------------------------------------------
Reports of child fatalities and cases of child abuse and
neglect at residential programs are widely documented. The GAO
testified before the Committee about inexcusable and inhumane
treatment of children at residential programs. On April 24,
2008, Greg Kutz, the Managing Director of Forensic Audits and
Special Investigations at GAO testified to the Full Committee
that ``boys at one boot camp were required to stand with bags
over their head and a hangman's noose around their neck. The
rope on this noose was tightened to simulate a hanging. The
individual responsible for this told officers that this was an
appropriate form of discipline.''\3\ GAO also testified about a
case study in which a 15-year-old died at a private residential
program from a severed neck artery after being held face down
in the dirt for forty-five minutes. Another 15-year-old showed
signs of dehydration including blurred vision, vomiting water,
and frequent stumbling for two days before she collapsed while
hiking. She then lay dead on the ground for another eighteen
hours before the program's ``highly trained survival experts''
checked on her.\4\
---------------------------------------------------------------------------
\3\Testimony of Greg Kutz, Managing Director of Forensic Audits and
Special Investigations, Government Accountability Office, U.S. House of
Representatives, Committee on Education and Labor, Child Abuse and
Deceptive Marketing by Residential Programs for Teens, April 24, 2008.
\4\GAO, Residential Treatment Programs: Concerns Regarding Abuse
and Death in Certain Programs for Troubled Youth, GAO-08-146T
(Washington, D.C.: Oct. 10, 2007).
---------------------------------------------------------------------------
At the hearing before the Full Committee on October 10,
2007, Bob Bacon testified about the twenty-one day calendar
that was reconstructed by investigators and described the last
weeks of his son's life. He stated that his son
Aaron spent 14 of his 20 days on the trail without
any food whatsoever, while being forced to hike 8-10
miles per day. On the days he did have food it
consisted of undercooked lentils, lizards, scorpions,
trail mix, and a celebrated canned peach on the 13th.
On top of this, with temperatures below freezing, he
endured 13 of 20 nights with only a thin wool blanket,
plus 5 nights without warmth or protection of any kind.
Aaron complained of severe stomach pain and asked to
see a doctor as early as the third day of hiking, and
by the tenth day had lost all control of his bodily
functions; but unbelievably, as he got weaker and lost
nearly 20% of his body weight they repeatedly refused
to send him to a doctor.\5\
---------------------------------------------------------------------------
\5\Testimony of Bob Bacon, Father of child victim, U.S. House of
Representatives, Committee on Education and Labor, Cases of Child
Neglect and Abuse at Private Residential Treatment Facilities, October
10, 2008.
Unfortunately these shocking examples of abuse and neglect
are not isolated incidents. State reported data to the National
Child Abuse and Neglect Data System (NCANDS) from 2005 found
that thirty-four states reported 1,503 incidents of
maltreatment of youth by residential facility staff.\6\ Of the
states surveyed by GAO, twenty-eight reported at least one
youth fatality in a residential facility in 2006. The GAO
concluded that because of significant gaps in the data that
states collect and report, both statistics understate the
incidence of maltreatment and death at residential programs.\7\
---------------------------------------------------------------------------
\6\U.S. Department of Health and Human Services, Child Maltreatment
2005.
\7\GAO, Residential Facilities: Improved Data and Enhanced
Oversight Would Help Safeguard the Well-Being of Youth with Behavioral
and Emotional Challenges, GAO-08-346 (Washington, D.C.: May 2008).
---------------------------------------------------------------------------
Despite the fact that these programs serve some of our
nation's most vulnerable youth, and despite the problems with
abuse and death at residential programs, state standards and
regulations for these types of programs vary greatly. Some
types of residential teen programs may be monitored by state
agencies and staffed with licensed professionals that provide
high standards of care. However, many states have inadequate or
nonexistent regulations and oversight to protect children in
residential teen programs. The GAO found major gaps in the
licensing and oversight of residential facilities, and the GAO
reports that many types of facilities are exempt from state
licensing requirements altogether. In addition, GAO found that
because of the gaps in licensing, programs can choose to avoid
standards and oversight. For example, in some states, a
residential treatment program self-identified as a private
boarding school would not be regulated by the state. But the
same facility must be licensed if it self-identified as a
residential treatment center. After concluding an investigation
of the current status of federal and state oversight of
residential programs, the GAO concluded that ``[w]eaknesses in
the current federal-state regulatory structure have failed to
safeguard the civil rights and well-being of some of the
nation's most vulnerable youth.''\8\
---------------------------------------------------------------------------
\8\GAO, Residential Facilities: Improved Data and Enhanced
Oversight Would Help Safeguard the Well-Being of Youth with Behavioral
and Emotional Challenges, GAO-08-346 (Washington, D.C.: May 2008).
---------------------------------------------------------------------------
The Committee is also concerned that some individuals in
the residential program industry are enticing parents and
children by using deceptive marketing and questionable
practices. A GAO investigation revealed a number of fraudulent
methods and irresponsible claims used by both referral service
agencies and residential programs.\9\ The investigators posed
as parents of a troubled teen needing help and made calls to
both programs and referral service agencies. The investigators
were pitched spurious medical advice, fraudulent tax schemes,
and inaccurate information, all apparently designed to get into
parents' pockets. Most of the information provided in these
calls was about how to finance the exorbitant tuition being
charged, rather than about properly screening children and
matching children with the appropriate programs based on the
child's needs. Furthermore, a blatant conflict-of-interest was
uncovered when it was revealed that a referral service owned by
a husband consistently made referrals to a residential program
owned by his wife. These schemes do not merely represent bad
business practices. Greater than that, such practices directly
or indirectly contribute to a decision making process that may
lead to the abuse or death of a child. Parents are desperately
looking for answers to help their struggling child, and instead
of getting reliable accurate information, they are given self-
serving and unreliable advice. The GAO investigation
underscores the increasing need to provide parents with
objective information and hold the industry accountable.
---------------------------------------------------------------------------
\9\GAO, Residential Programs: Selected Cases of Death, Abuse, and
Deceptive Marketing, GAO-08-713T (Washington, D.C.: April 24, 2008).
---------------------------------------------------------------------------
Federal standards and oversight
The Committee believes the safety and basic well-being of
children in residential programs is an urgent and critical
matter and must be dealt with accordingly. As a result of a
loose patchwork of state regulations, we have a crisis
situation where large numbers of children are being abused and
even dying in residential programs. Moreover, deceptive
marketing practices make it very difficult for parents to make
informed and safe choices for their children. Furthermore, the
GAO case studies suggest that local responses to incidents of
abuse have sometimes been inadequate or inappropriate. H.R.
5876 takes numerous steps to stop this abuse and keep children
safe. The intent of this bill is not to limit the choices
available to parents but instead to give parents the
information they need to make safe choices for their children
and to ensure that, notwithstanding the residential setting,
children are safe from abusive and neglectful treatment.
The Committee believes the fastest and most effective way
to end child abuse at residential programs is to immediately
implement federal standards and oversight of residential
programs. This action is imperative if we are to prevent kids
from dying or from suffering abuse and trauma that will
undoubtedly affect them for years to come. Therefore, H.R. 5876
provides immediate federal action in response to an urgent
problem of abuse, and sometimes death, in private residential
programs for teens that are loosely (if at all) regulated and
monitored by states. Within 180 days after enactment of H.R.
5876, the Assistant Secretary must issue regulations on minimum
standards at private residential programs and begin unannounced
site inspections. The standards included in H.R. 5876 are
minimum standards of care needed to keep kids safe in
residential programs and to provide parents with the
information they need. The Committee believes states and
programs should require additional and stronger standards to
ensure children with emotional, behavioral, mental health, or
substance abuse problems are receiving effective therapeutic
practices. However, that was not the focus of this bill.
The federal standard prohibiting child abuse and neglect at
covered programs may be questioned as unnecessary or too
obvious, because all states prohibit child abuse and neglect.
However, the GAO case studies and testimony heard by the
Committee raise concerns that there are instances in which
abuse and neglect of children at residential programs has been
ignored, dismissed, or accepted by staff and/or local
authorities as part of acceptable therapy. The Committee
believes that abuse and inhumane treatment of children is
inexcusable and illegal. Therefore, H.R. 5876 explicitly
prohibits such behavior.
In the GAO investigation described earlier, state officials
reported that a central cause of youth maltreatment at
residential facilities is the improper application of seclusion
and restraint.\10\ In fact, a large number of injuries and
deaths at residential facilities seem to be attributable to
improper restraint procedures. The Committee concurs with the
current standard of practice that requires that seclusion and
restraint be utilized only by staff trained in these
techniques, such that these interventions are practiced safely
and appropriately in very limited circumstances. Therefore,
H.R. 5876 includes a standard that requires programs to limit
the use of restraint and seclusion procedures to the methods
described in the Public Health Service Act, 42 U.S.C.
Sec. 300--300a-6. The Committee believes these standards will
support ethical and safe procedures of care for children and
greatly limit the likelihood of children dying or experiencing
significant trauma or injury from restraint and seclusion
procedures.
---------------------------------------------------------------------------
\10\GAO, Residential Facilities: Improved Data and Enhanced
Oversight Would Help Safeguard the Well-Being of Youth with Behavioral
and Emotional Challenges, GAO-08-346 (Washington, D.C.: May 2008).
---------------------------------------------------------------------------
H.R. 5876 also includes a standard that prohibits acts of
physical or mental abuse designed to humiliate, degrade, or
undermine a child's self-respect. This standard is based
closely on Oregon's licensing regulations\11\ for residential
programs. The Committee believes this standard is important to
move towards the elimination of abuse and inhumane treatment of
children at residential programs.
---------------------------------------------------------------------------
\11\Oregon Admin. R. 413-210-0190 (2008).
---------------------------------------------------------------------------
The federal standards also require children at covered
programs to have reasonable access to a telephone for making
and receiving calls with as much privacy as possible. This
standard is based on public health laws, which the Committee
believes exist in every state, that provide for access to
telephones for committed patients on psychiatric inpatient
wards. The Committee believes the isolation inherent in
residential programs makes extending this right to children
appropriate and necessary. It provides a safeguard and a
lifeline for children isolated from their families. The
Committee has heard concerns that this provision will allow
teens the right to continue to communicate with drug dealers
back home or have other potentially destructive outcomes. But
the Committee is confident that the ``reasonable access''
requirement can be executed in an appropriate and effective
manner.
The federal standards also require some staff training. For
instance, H.R. 5876 requires staff to be familiar with what
constitutes child abuse and neglect in their state, as well as
being familiar with the state requirements for mandated
reporters and procedures for reporting child abuse and neglect
in the state. This standard is not intended to alter state
definitions of mandated reporters. After a careful review of
state mandated reporting laws, however, the Committee believes
that most--if not all--staff at residential programs are
already mandated reporters of child abuse and neglect in each
state. Yet, there is little evidence of staff at these programs
reporting incidents of abuse and neglect. These standards are
designed to prevent child abuse and neglect by ensuring all
staff are aware of what constitutes abuse and of their legal
responsibility to report abuse. The bill also requires staff at
programs such as wilderness or boot camps to be familiar with
the signs, symptoms, and appropriate responses associated with
heatstroke, dehydration, and hypothermia. The GAO investigation
revealed a number of instances where children's serious medical
conditions were ignored by staff and attributed to ``faking
it.''\12\ This standard is meant to provide staff with the
ability to recognize serious medical conditions that have led
to death at residential programs.
---------------------------------------------------------------------------
\12\GAO, Residential Treatment Programs: Concerns Regarding Abuse
and Death in Certain Programs for Troubled Youth, GAO-08-146T
(Washington, D.C.: Oct. 10, 2007).
---------------------------------------------------------------------------
H.R. 5876 includes standards to help give parents
additional tools for making safe choices for their children.
The bill requires programs to notify parents of violations of
the federal and state standards and of on-site investigations
of child abuse and neglect. The bill further requires parents
to be notified about any changes in the child's medical
treatment. It also requires all promotional and informational
materials produced by a program to include a hyperlink or URL
address of the website created by the Assistant Secretary. This
website includes a database with information on covered
programs, including any history of fatalities and violations of
standards. The Committee believes this will help empower
parents to make safe decisions for their child's treatment and
care.
H.R. 5876 requires monitoring and enforcement of the
federal standards through a number of mechanisms. First, the
Assistant Secretary is required to conduct unannounced site
inspections of all covered programs at least once every two
years. Second, states are required to inform the Secretary of
reports of child abuse and neglect at covered programs. The
Assistant Secretary is required to establish an ongoing review
process for investigating and evaluating these reports. This
process must include an investigation to determine if there was
a violation of federal standards, and it must include an
assessment of the state's response to and investigation of
reports of child abuse and neglect at covered programs and
appropriateness of legal action against responsible parties.
Civil penalties for violations of the standards are also
established.
The Committee recognizes that strong enforcement is
critical to the success of the minimum standards regulations.
Unfortunately, the evidence gathered by the Committee indicates
that some operators of covered programs habitually neglect or
abuse children and place at risk the lives entrusted to their
care. That is why the bill provides that where a covered
program persists in violating the minimum standards
regulations, the Assistant Secretary must refer the matter to
the Attorney General. The Department of Justice, therefore, is
empowered to bring a lawsuit to force an operator to follow the
regulations. The Department of Justice need not wait for a
referral, however, and is empowered to bring such a suit of its
own volition.
A crucial piece of the enforcement mechanism is the
provision providing for a private right of action. An
individual harmed by a covered program's violation of the
regulations detailing the minimum standard promulgated under
this bill should be made whole. In addition, injunctive or
other equitable remedies should be available to prevent harm to
participants in covered programs. To date, state law has not
been sufficient to fully recompense victims of abuse, nor to
allow courts to expeditiously enjoin harm to participants.
Individuals harmed, or in imminent danger of being harmed,
by a violation of the regulations promulgated under H.R. 5876
may have a remedy under state tort law. The private right of
action provision, however, provides for a uniform cause of
action for a person injured because of a violation of a minimum
standard, victims who, in many cases, are participating in a
covered program in a state that is not their domicile. The
Committee believes that nation-wide uniformity of the minimum
standards together with a uniform mechanism of enforcement of
those standards will prevent covered programs from moving from
state-to-state, organizing and operating in states with the
most relaxed duties of care or most restrictive tort award and
injunctive relief.
The private right of action provision provides covered
programs with ample, specific notice of the violations for
which they may be successfully sued under this provision. The
provision only allows suits for violations of the detailed
regulations promulgated by the Assistant Secretary under this
bill. This provision does not allow suits for violations of the
more general minimum standards enumerated in the bill itself.
The private right of action established by H.R. 5876 may be
pursued in federal court. The bill does not, however, require
that such claims be adjudicated in federal court or create
exclusive jurisdiction in the federal courts. The Committee
also believes that, in this context, prevention is the most
effective remedy and, therefore, intends that the authorization
of punitive damages will act as a deterrent for covered
programs that might otherwise violate the regulations required
by this bill.
The Committee believes that victims should be empowered to
seek redress for any injury suffered as a result of a violation
of this bill. Accordingly, H.R. 5876 provides for the award of
reasonable attorneys' fees to increase the likelihood of
securing effective counsel. By allowing the courts the
authority to award reasonable attorneys' fees, it is the
Committee's expectation that attorneys will be willing to take
meritorious cases that may potentially save lives, but which,
absent this provision, would be financially prohibitive to
undertake.
The Committee believes the creation of publicly available
websites and a national hotline by H.R. 5876 are key components
to keeping children safe. The bill requires the Assistant
Secretary to establish a website with a database of information
on covered programs. The Committee envisions the creation of
this website and the information contained therein as a
collaborative effort between the states and the Assistant
Secretary. This website will help parents learn which programs
have a history of abuse and which programs are providing safe
care for children. The website will contain information that
will assist parents to make safe choices for their children
under very difficult circumstances. The national hotline
created by this bill is also intended to help parents and
children who do not know where to turn for help. Because many
parents send their children out of state to residential
programs, the children may be unsure of who to contact for
assistance within the state. The hotline is designed to
minimize this problem.
State response
The Committee believes the federal standards and oversight
are critical to quickly and successfully restrain child abuse
and neglect at residential programs. However, the Committee
also believes that ultimately states must take on the primary
responsibility for ensuring the safety of children at these
programs. For that reason, the bill requires that once states
assume primary responsibility for standards and enforcement of
residential programs, the federal involvement will greatly
decrease.
Contingent on receiving CAPTA funds, states are required
under the bill to implement licensing standards as a condition
to operate public and private residential programs focused on
serving children with emotional, behavioral, substance abuse,
and mental health problems. These licensing standards must meet
or exceed the federal standards. Though the Committee believes
these standards are critical to the safety of kids in covered
programs, it views these standards as very minimal and strongly
encourages states to enact stronger and more comprehensive
standards that will facilitate the provision of effective
services. For example, this bill does not include standards on
staff qualifications relating to mental health services. States
are encouraged to consider developing standards. Moreover, the
Committee hopes states will take additional steps to help
parents understand the differences in the types of programs
operating in a state.
H.R. 5876 also requires states to effectively monitor the
minimum health and safety licensing standards. This may be
achieved in part by conducting unannounced site inspections at
least once every two years, implementing a policy of graduated
sanctions for failing to meet state standards, and requiring
the licensing application process to disclose prior
substantiated reports of child abuse and neglect and all child
deaths at a business previously or currently owned or operated
by the applicant. The bill also requires states to create a
publicly available database of information on covered programs
and a history of problems at each program.
Once a state has in place appropriate licensing and
monitoring, federal involvement greatly diminishes. States
meeting the bill's requirements are released from the
requirement to report each incident of child abuse and neglect
at a covered program to the Secretary. In addition, the
requirement that the Secretary conduct unannounced site
inspections of every program at least once every two years is
also eliminated in a state meeting the requirements. As a
result, the two main mechanisms for the Secretary to oversee
the federal standards are eliminated when a state successfully
assumes the responsibility of ensuring children's safety at
residential programs.
V. Section-by-Section Analysis
Sec. 1. Short title
Provides that the short title is the ``Stop Child Abuse in
Residential Programs for Teens Act 2008.''
Sec. 2. Definitions
Sets forth definitions for the terms ``Assistant
Secretary,'' ``Child, Child Abuse and Neglect,'' ``Covered
Program,'' ``Protection and Advocacy System,'' and ``State.''
Sec. 3. Standards and enforcement
This section is composed of four subsections: (a) Minimum
Standards, (b) Monitoring and Enforcement, (c) Dissemination of
Information, and (d) Action.
Subsection (a) provides minimum health and safety standards
for children residing in covered programs and requires the
Assistant Secretary for Children and Families of the Department
of Health and Human Services to issue regulations to enforce
those standards applicable to covered programs that have an
affect on interstate commerce. The minimum standards prohibit
physical and mental abuse and neglect, inappropriate and
degrading disciplinary techniques, denying patients the
essentials necessary to maintain physical and mental health and
safety, denying reasonable access to outside communications,
and the unnecessary use of seclusion and restraint. The
subsection also requires program policies and minimal
qualification regarding staffs' training in emergency response
techniques and mandates abuse and neglect reporting. The
section requires staff criminal background checks and mandates
communication with a parent or guardian whenever there are
proposed changes in medical treatment. Parents must also be
informed of any investigations regarding child abuse reports
and health and safety violations at covered programs.
Subsection (b) requires the Assistant Secretary to conduct
unannounced site inspections at each covered program at least
once every two years until such time that the Secretary has
determined that the state has established appropriate health
and safety licensing requirements. The subsection also
establishes guidelines for an ongoing review process for
investigating and evaluating reports of child abuse and neglect
at covered programs, including a determination of violations of
standards and the appropriateness of states' investigations and
responses. This subsection also requires the Assistant
Secretary to promulgate regulations establishing civil
penalties for violations of standards, not to exceed $50,000
per violation.
Subsection (c) requires the establishment and maintenance
of a publicly accessible website that provides information
regarding covered program ownership and compliance with state
child abuse licensing requirements. It also provides for the
development of a national child abuse and neglect toll-free
hotline for reporting complaints and violations against covered
programs.
Subsection (d) requires a process by which complaints made
to the hotline are reviewed, communicated to state and local
law enforcement, and by which violations are investigated.
There is also a mandate for collaboration between the national
hotline authorized in this Act and other state, regional, and
national hotlines.
Sec. 4. Enforcement by the Attorney General
Authorizes the Assistant Secretary to refer to the Attorney
General for appropriate action any violations of this Act not
remedied through the administrative enforcement process. It
also allows the Attorney General to file a complaint, sua
sponte, in any court of competent jurisdiction to seek
equitable relief.
Sec. 5. Private rights of action
Allows suit against a covered program to seek equitable
relief, damages (including punitive damages), or both, for harm
caused by a violation of a regulation promulgated under this
Act. This section also authorizes an award of attorneys' fees.
The provisions of section 7 of the Civil Rights of
Institutionalized Persons Act (42 U.S.C. 1997e) shall not apply
to actions brought under this Act.
Sec. 6. Report
Describes the annual reporting requirements of the
Secretary of Health and Human Services, in coordination with
the Attorney General.
Sec. 7. Authorization of appropriations
Authorizes $50,000,000 for each fiscal year 2009 through
2013 for activities required by the Act (excluding the
amendment made by section 8 of this Act).
Sec. 8. Additional eligibility requirements for grants to states to
prevent child abuse and neglect at residential programs
This section is divided into four subsections: (a) an
Amendment to Title I of the Child Abuse Prevention and
Treatment Act (CAPTA; 42 U.S.C. 5101 et seq.), (b)
Authorization (c) Conforming Amendments, and (d) Clerical
Amendments.
Subsection (a) amends Title I of CAPTA by adding
definitions of the terms ``Child,'' ``Covered Program,'' and
``Protection and Advocacy System.'' It also provides
eligibility requirements for receipt of grants under section
106 of CAPTA, including the prevention of abuse and neglect in
covered programs by creating licensing requirements that exceed
the federal standards created in Section 3; the development of
policies and procedures for monitoring and enforcing compliance
with licensing requirements through a designated state agency;
when a state is not satisfying requirements, the development of
policies and procedures for notifying the Secretary and the
appropriate protection and advocacy systems of child abuse and
neglect at covered programs; if states have satisfied
requirements, the development of policies and procedures for
notifying the Secretary of evidence of a pattern of violations
of standards at covered programs. The state also shall develop
and maintain a public database with information related covered
programs, including ownership, license, and violations. The
Secretary shall include a process for monitoring states once
licensing, monitoring, and enforcement requirements have been
satisfied.
Subsection (b) amends section 112(a)(1) of CAPTA to
authorize $200,000,000 for each fiscal year 2009 through 2013.
Subsection (c) amends section 103(c)(1)(D) of CAPTA to
include ``reports of child abuse and neglect occurring at
covered programs . . . as such term is defined in section
114.'' Further requirements for grant eligibility include state
compliance with section 114 of CAPTA and submission of a plan
describing the activities the state will undertake in order to
carry out the requirements of section 114 of CAPTA.
VI. Explanation of Amendments
The Amendment in the Nature of a Substitute, as amended, is
explained in the body of this report.
VII. Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act, requires a description of the application
of this bill to the legislative branch. H.R. 5876 provides
federal and state standards to prevent child abuse at covered
residential treatment facilities and programs. The bill does
not prevent legislative branch employees' coverage under this
legislation.
VIII. Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. H.R. 5876 contains no intergovernmental or private-
sector mandates as defined by the Unfunded Mandates Reform Act
(UMRA).
IX. Earmark Statement
H.R. 5876 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clauses 9(d), 9(e) or 9(f) of rule XXI of the Rules of the
House of Representatives.
X. Roll Call
XI. Statement of Oversight Findings and Recommendations of the
Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the body of this report.
XII. New Budget Authority and CBO Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the House of Representatives and section 308(a) of the
Congressional Budget Act of 1974 and with respect to
requirements of 3(c)(3) of rule XIII of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, the Committee has received the following estimate for
H.R. 5876 from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 22, 2008.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5876, the Stop
Child Abuse in Residential Programs for Teens Act of 2008.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jonathan
Morancy.
Sincerely,
Robert A. Sunshine
(For Peter R. Orszag, Director).
Enclosure.
H.R. 5876--Stop Child Abuse in Residential Programs for Teens Act of
2008
Summary: H.R. 5876 would authorize the appropriation of
$250 million per year for fiscal years 2009 through 2013 for
child abuse prevention programs. CBO estimates that
implementing the bill would cost $805 million over the 2009-
2013 period, assuming appropriation of the authorized amounts.
Enacting H.R. 5876 would not affect direct spending. The
bill would create new civil penalties, which CBO estimates
would have an insignificant effect on revenues over the 2009-
2018 period.
H.R. 5876 contains mandates on the private sector as
defined in the Unfunded Mandates Reform Act (UMRA) but CBO
estimates that the direct costs of those mandates would be
below the annual threshold established by UMRA ($136 million in
2008, adjusted annually for inflation).
H.R. 5876 contains no new intergovernmental mandates as
defined in UMRA. The bill would establish additional
eligibility requirements for states that receive grants for the
prevention of child abuse and neglect and for treatment
programs, but such requirements would be incurred voluntarily.
Estimated Cost to the Federal Government: The estimated
budgetary impact of H.R. 5876 is shown in the following table.
The costs of this legislation fall within budget functions 500
(education, training, employment, and social services) and 600
(income security).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------
2009 2010 2011 2012 2013 2009-2013
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Grants and Other Activities:
Authorization Level................................. 200 200 200 200 200 1,000
Estimated Outlays................................... 11 98 142 178 193 622
Enforcement of Standards:
Authorization Level................................. 50 50 50 50 50 250
Estimated Outlays................................... 15 28 40 50 50 183
Total
Authorization Level............................. 250 250 250 250 250 1,250
Estimated Outlays............................... 26 126 182 228 243 805
----------------------------------------------------------------------------------------------------------------
\1\ The bill would increase revenue by less than $500,000 in 2009 and over the 2009-2018 period.
Basis of estimate: For this estimate, CBO assumes that H.R.
5876 will be enacted near the end of fiscal year 2008, the
amounts authorized by the bill will be appropriated by the
beginning of each fiscal year, and outlays will follow
historical spending patterns.
H.R. 5876 would authorize the appropriation of $200 million
per year for various purposes related to combating child abuse
and neglect, including grants and research. (The current
authorization, which provides such sums as may be necessary,
expires at the end of fiscal year 2008.) In 2008, $64 million
was appropriated for those activities. The bill also would
authorize the appropriation of $50 million per year for fiscal
years 2009 through 2013 to assist with enforcing new standards
for certain residential treatment programs for children.
Estimated impact on state, local, and tribal governments:
H.R. 5876 contains no intergovernmental mandates as defined in
UMRA. The bill would establish additional eligibility
requirements for states that receive grants for the prevention
of child abuse and neglect and for treatment programs. As
conditions of assistance, those requirements would be incurred
voluntarily.
Estimated impact on the private sector: H.R. 5876 contains
mandates as defined by UMRA on operators of private residential
programs for teenagers with emotional, behavioral, or mental
health problems or disorders, or who have problems with alcohol
or substance abuse. The covered programs may include, among
others, those that provide a wilderness or outdoor experience
as well as boot-camps that simulate military training. The bill
delineates minimum health and safety standards those programs
must meet.
Many states already have standards that residential
programs for youth must meet, and some industry groups regulate
themselves by requiring members to pledge to follow certain
guidelines. Consequently, the additional cost of complying with
the mandates in the bill would vary widely depending on the
conditions under which the program currently operates. CBO
expects that the direct cost of the mandate to private-sector
entities would be below the annual threshold established by
UMRA for private-sector mandates ($136 million in 2008,
adjusted annually for inflation).
Estimate prepared by: Federal Costs: Jonathan Morancy;
Impact on State, Local, and Tribal Governments: Burke Doherty;
Impact on the Private Sector: Nabeel Alsalam.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
XIII. Statement of General Performance Goals and Objectives
In accordance with clause 3(c) of rule XIII of the House of
Representatives, the goal of H.R. 5876 is to ensure the safety
of children attending residential programs that focus on
serving children with emotional, behavioral or mental health
problems. The Committee expects the Department of Health and
Human Services to comply with H.R. 5876 and implement the
changes to the law in accordance with these stated goals.
XIV. Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the House of
Representatives, the Committee must include a statement citing
the specific powers granted to Congress in the Constitution to
enact the law proposed by H.R. 5876. The Committee believes
that the amendments made by this bill are within Congress'
authority under Article I, section 8, clauses 1, 3 and 18 of
the U.S. Constitution.
XV. Committee Estimate
Clause 3(d)(2) of rule XIII of the House of Representatives
requires an estimate and a comparison of the costs that would
be incurred in carrying out H.R. 5876. However, clause
3(d)(3)(B) of that rule provides that this requirement does not
apply when the Committee has included in its report a timely
submitted cost estimate of the bill prepared by the Director of
the Congressional Budget Office under section 402 of the
Congressional Budget Act.
XVI. Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
CHILD ABUSE PREVENTION AND TREATMENT ACT
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) * * *
(b) Table of Contents.--The table of contents is as follows:
TABLE OF CONTENTS
* * * * * * *
TITLE I--GENERAL PROGRAM
* * * * * * *
Sec. 114. Additional eligibility requirements for grants to States to
prevent child abuse and neglect at residential programs.
* * * * * * *
TITLE I--GENERAL PROGRAM
* * * * * * *
SEC. 103. NATIONAL CLEARINGHOUSE FOR INFORMATION RELATING TO CHILD
ABUSE.
(a) * * *
* * * * * * *
(c) Coordination With Available Resources.--
(1) In general.--In establishing a national
clearinghouse as required by subsection (a), the
Secretary shall--
(A) * * *
* * * * * * *
(D) through a national data collection and
analysis program and in consultation with
appropriate State and local agencies and
experts in the field, collect, compile, and
make available State child abuse and neglect
reporting information which, to the extent
practical, shall be universal and case specific
(including reports of child abuse and neglect
occurring at covered programs (except that such
reports shall not contain any personally
identifiable information relating to the
identity of individuals who were the victims of
such child abuse and neglect), as such term is
defined in section 114) and integrated with
other case-based foster care and adoption data
collected by the Secretary;
* * * * * * *
SEC. 106. GRANTS TO STATES FOR CHILD ABUSE AND NEGLECT PREVENTION AND
TREATMENT PROGRAMS.
(a) * * *
(b) Eligibility Requirements.--
(1) State plan.--
(A) * * *
* * * * * * *
(C) Further requirement.--To be eligible to
receive a grant under this section, a State
shall comply with the requirements under
section 114(b) and shall include in the State
plan submitted pursuant to subparagraph (A) a
description of the activities the State will
carry out to comply with the requirements under
such section 114(b).
* * * * * * *
(d) Annual State Data Reports.--Each State to which a grant
is made under this section shall annually work with the
Secretary to provide, to the maximum extent practicable, a
report that includes the following:
(1) The number of children who were reported to the
State during the year as abused or neglected (including
reports of child abuse and neglect occurring at covered
programs (except that such reports shall not contain
any personally identifiable information relating to the
identity of individuals who were the victims of such
child abuse and neglect), as such term is defined in
section 114).
* * * * * * *
(6) Of the number of children described in paragraph
(5), the number of such children who were in foster
care or who were in the care of a covered program, as
such term is defined in section 114.
* * * * * * *
SEC. 112. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--
(1) General authorization.--There are authorized to
be appropriated to carry out this title $120,000,000
for fiscal year 2004 and such sums as may be necessary
for each of the fiscal years 2005 through 2008, and
$200,000,000 for each of fiscal years 2009 through
2013.
* * * * * * *
SEC. 114. ADDITIONAL ELIGIBILITY REQUIREMENTS FOR GRANTS TO STATES TO
PREVENT CHILD ABUSE AND NEGLECT AT RESIDENTIAL
PROGRAMS.
(a) Definitions.--In this section:
(1) Child.--The term ``child'' means an individual
who has not attained the age of 18.
(2) Covered program.--
(A) In general.--The term ``covered program''
means each location of a program operated by a
public or private entity that, with respect to
one or more children who are unrelated to the
owner or operator of the program--
(i) provides a residential
environment, such as--
(I) a program with a
wilderness or outdoor
experience, expedition, or
intervention;
(II) a boot camp experience
or other experience designed to
simulate characteristics of
basic military training or
correctional regimes;
(III) a therapeutic boarding
school; or
(IV) a behavioral
modification program; and
(ii) operates with a focus on serving
children with--
(I) emotional, behavioral, or
mental health problems or
disorders; or
(II) problems with alcohol or
substance abuse.
(B) Exclusion.--The term ``covered program''
does not include--
(i) a hospital licensed by the State;
(ii) a foster family home or group
home that provides 24-hour substitute
care for children place away from their
parents or guardians and for whom the
State child welfare services agency has
placement and care responsibility and
that is licensed and regulated by the
State as a foster family home or group
home; or
(iii) a psychiatric residential
treatment facility that is certified as
meeting the requirements specified in
regulations promulgated for such
facilities under section 1905(h)(1)(A)
of the Social Security Act and that
provides psychiatric services for which
medical assistance is available under a
State plan under title XIX of such Act.
(3) Protection and advocacy system.--The term
``protection and advocacy system'' means a protection
and advocacy system established under section 143 of
the Developmental Disabilities Assistance and Bill of
Rights Act of 2000 (42 U.S.C. 15043).
(b) Eligibility Requirements.--To be eligible to receive a
grant under section 106, a State shall--
(1) not later than three years after the date of the
enactment of this section, develop policies and
procedures to prevent child abuse and neglect at
covered programs operating in such State, including
having in effect health and safety licensing
requirements applicable to and necessary for the
operation of each location of such covered programs
that include, at a minimum--
(A) standards that meet or exceed the
standards required under section 3(a)(1) of the
Stop Child Abuse in Residential Programs for
Teens Act of 2008;
(B) the provision of essential food, water,
clothing, shelter, and medical care necessary
to maintain physical health, mental health, and
general safety of children at such programs;
(C) policies for emergency medical care
preparedness and response, including minimum
staff training and qualifications for such
responses; and
(D) notification to appropriate staff at
covered programs if their position of
employment meets the definition of mandated
reporter, as defined by the State;
(2) develop policies and procedures to monitor and
enforce compliance with the licensing requirements
developed in accordance with paragraph (1), including--
(A) designating an agency to be responsible,
in collaboration and consultation with State
agencies providing human services (including
child protective services, and services to
children with emotional, psychological,
developmental, or behavioral dysfunctions,
impairments, disorders, or alcohol or substance
abuse), State law enforcement officials, the
appropriate protection and advocacy system, and
courts of competent jurisdiction, for
monitoring and enforcing such compliance;
(B) a State licensing application process
through which any individual seeking to operate
a covered program would be required to disclose
all previous substantiated reports of child
abuse and neglect and all child deaths at any
businesses previously or currently owned or
operated by such individual, except that such
reports shall not contain any personally
identifiable information relating to the
identity of individuals who were the victims of
such child abuse and neglect;
(C) conducting unannounced site inspections
not less often than once every two years at
each location of a covered program;
(D) creating a database, to be integrated
with the annual State data reports required
under section 106(d), of reports of child abuse
and neglect at covered programs operating in
the State, except that such reports shall not
contain any personally identifiable information
relating to the identity of individuals who
were the victims of such child abuse and
neglect; and
(E) implementing a policy of graduated
sanctions, including fines and suspension and
revocation of licences, against covered
programs operating in the State that are out of
compliance with such health and safety
licensing requirements;
(3) if the State is not yet satisfying the
requirements of this subsection, in accordance with a
determination made pursuant to subsection (c), develop
policies and procedures for notifying the Secretary and
the appropriate protection and advocacy system of any
report of child abuse and neglect at a covered program
operating in the State not later than 30 days after the
appropriate State entity, or subdivision thereof,
determines such report should be investigated and not
later than 48 hours in the event of a fatality;
(4) if the Secretary determines that the State is
satisfying the requirements of this subsection, in
accordance with a determination made pursuant to
subsection (c), develop policies and procedures for
notifying the Secretary if--
(A) the State determines there is evidence of
a pattern of violations of the standards
required under paragraph (1) at a covered
program operating in the State or by an owner
or operator of such a program; or
(B) there is a child fatality at a covered
program operating in the State;
(5) develop policies and procedures for establishing
and maintaining a publicly available database of all
covered programs operating in the State, including the
name and each location of each such program and the
name of the owner and operator of each such program,
information on reports of child abuse and neglect at
such programs (except that such reports shall not
contain any personally identifiable information
relating to the identity of individuals who were the
victims of such child abuse and neglect), violations of
standards required under paragraph (1), and all
penalties levied against such programs;
(6) annually submit to the Secretary a report that
includes--
(A) the name and each location of all covered
programs, including the names of the owners and
operators of such programs, operating in the
State, and any violations of State licensing
requirements developed pursuant to subsection
(b)(1); and
(B) a description of State activities to
monitor and enforce such State licensing
requirements, including the names of owners and
operators of each covered program that
underwent a site inspection by the State, and a
summary of the results and any actions taken;
and
(7) if the Secretary determines that the State is
satisfying the requirements of this subsection, in
accordance with a determination made pursuant to
subsection (c), develop and policies and procedures to
report to the appropriate protection and advocacy
system any case of the death of an individual under the
control or supervision of a covered program not later
than 48 hours after the State is informed of such
death.
(c) Secretarial Determination.--The Secretary shall not
determine that a State's licensing requirements, monitoring,
and enforcement of covered programs operating in the State
satisfy the requirements of this subsection (b) unless--
(1) the State implements licensing requirements for
such covered programs that meet or exceed the standards
required under subsection (b)(1);
(2) the State designates an agency to be responsible
for monitoring and enforcing compliance with such
licensing requirements;
(3) the State conducts unannounced site inspections
of each location of such covered programs not less
often than once every two years;
(4) the State creates a database of such covered
programs, to include information on reports of child
abuse and neglect at such programs (except that such
reports shall not contain any personally identifiable
information relating to the identity of individuals who
were the victims of such child abuse and neglect);
(5) the State implements a policy of graduated
sanctions, including fines and suspension and
revocation of licenses against such covered programs
that are out of compliance with the health and safety
licensing requirements under subsection (b)(1); and
(6) after a review of assessments conducted under
section 3(b)(2)(B) of the Stop Child Abuse in
Residential Programs for Teens Act of 2008, the
Secretary determines the State is appropriately
investigating and responding to allegations of child
abuse and neglect at such covered programs.
(d) Oversight.--
(1) In general.--Beginning two years after the date
of the enactment of the Stop Child Abuse in Residential
Programs for Teens Act of 2008, the Secretary shall
implement a process for continued monitoring of each
State that is determined to be satisfying the
licensing, monitoring, and enforcement requirements of
subsection (b), in accordance with a determination made
pursuant to subsection (c), with respect to the
performance of each such State regarding--
(A) preventing child abuse and neglect at
covered programs operating in each such State;
and
(B) enforcing the licensing standards
described in subsection (b)(1).
(2) Evaluations.--The process required under
paragraph (1) shall include in each State, at a
minimum--
(A) an investigation not later than 60 days
after receipt by the Secretary of a report from
a State, or a subdivision thereof, of child
abuse and neglect at a covered program
operating in the State, and submission of
findings to appropriate law enforcement or
other local entity where necessary, if the
report indicates--
(i) a child fatality at such program;
or
(ii) there is evidence of a pattern
of violations of the standards required
under subsection (b)(1) at such program
or by an owner or operator of such
program;
(B) annually, a random sample of review of
cases of reports of child abuse and neglect
investigated at covered programs operating in
the State to assess the State's performance
with respect to the appropriateness of response
to and investigation of reports of child abuse
and neglect at covered programs and the
appropriateness of legal actions taken against
responsible parties in such cases; and
(C) unannounced site inspections of covered
programs operating in the State to monitor
compliance with the standards required under
section 3(a) of the Stop Child Abuse in
Residential Programs for Teens Act of 2008.
(3) Enforcement.--If the Secretary determines,
pursuant to an evaluation under this subsection, that a
State is not adequately implementing, monitoring, and
enforcing the licensing requirements of subsection
(b)(1), the Secretary shall require, for a period of
not less than one year, that--
(A) the State shall inform the Secretary of
each instance there is a report to be
investigated of child abuse and neglect at a
covered program operating in the State; and
(B) the Secretary and the appropriate local
agency shall jointly investigate such report.
* * * * * * *
XVII. Committee Correspondence
None.
REPUBLICAN VIEWS ON H.R. 5876
Republican Members of the House Committee on Education and
Labor are committed to stopping child abuse and neglect at
residential treatment programs. We have supported the Child
Abuse Prevention and Treatment Act (CAPTA) since the program's
creation in 1974. CAPTA provides federal funding to states in
support of prevention, assessment, investigation, prosecution,
and treatment activities, and also provides grants to public
agencies and nonprofit organizations for demonstration programs
and projects. We have also supported the federal oversight role
established under CAPTA in setting a minimum definition of
child abuse and neglect and supporting research, evaluation,
technical assistance, and data collection activities.
Instances of child neglect, abuse, and death at residential
treatment programs are unacceptable and must be stopped.
However, Committee Republicans do not believe that it is
necessary to create the proposed dual regulatory structure set
out in H.R. 5876 in order to protect children in such programs.
The legislation Chairman Miller introduced provides a good
starting point for Congress to work from, but the bill as
written is unworkable and unrealistic. It creates a highly
duplicative process at the federal and state level, and
mandates unachievable timelines. It is the hope of Committee
Republicans to work with Chairman Miller and Democrats on the
Committee to produce a bipartisan bill that addresses these
concerns and develops the best, most effective and appropriate
safeguards to protect young people placed in residential
treatment programs.
Background on the Congressional Interest in Residential Treatment
Programs
Since the early 1990s, hundreds of residential treatment
programs--sometimes referred to as behavior modification
facilities or boot camps--are believed to have been established
by U.S. companies, both within the U.S. and abroad. The
treatment methods employed by some of these programs have been
controversial, with some allegations of severe child abuse by
some of these programs' staff.
While the true size of the industry is not known, it is
widely estimated that thousands of American children are
enrolled in juvenile and adult boot camp programs. In 2004, the
Chicago Tribune reported that ``a trade association and other
experts say the schools are a $1 billion to $1.2 billion
industry that serves 10,000 to 14,000 school-age children.''
In April 2005, Chairman Miller (then Senior Democratic
Member) introduced H.R. 1738, legislation intended to prevent
child abuse at residential treatment facilities in the U.S. and
abroad. In December 2005, Chairman Miller requested a study by
the U.S. Government Accountability Office (GAO) of residential
treatment programs and the for-profit companies that own and
operate these programs. The request was made in response to
allegations of child abuse, fraud, and other violations of law
by companies that operate these facilities.
In October 2007, following the release of an initial GAO
report on case studies of abuse and neglect at residential
treatment programs, Chairman Miller convened an oversight
hearing on the issue of wilderness therapy programs or ``boot
camps.'' The GAO report that was the subject of the hearing
highlighted a number of cases of abuse and neglect at private
residential treatment programs throughout the country. In April
2008, the Committee held a second oversight hearing on this
issue to highlight further cases of abuse and neglect at
residential treatment programs and to discuss the more
comprehensive GAO report, originally requested by Chairman
Miller, highlighting data from, and oversight of, private and
public residential treatment programs.
During the hearings, Committee Republicans took the
opportunity to ask the expert witnesses whether they were aware
of a comprehensive list of how many programs were in existence,
by whom were they operated, and where they were located.
Unfortunately, even the GAO, which has been investigating these
programs for years, was unable to provide these basic facts
during the hearings. This has been a major obstacle to the
monitoring and regulation of residential treatment programs.
Committee Consideration of H.R. 5876, Child Abuse in Residential
Programs for Teens Act of 2008
Less than a day before the second oversight hearing in
April 2008, Chairman Miller introduced H.R. 5876, the Stop
Child Abuse in Residential Programs for Teens Act of 2008, with
ten cosponsors. The bill requires the federal government and
states to establish systems of standards and enforcement to
curtail instances of child neglect, abuse and death at
privately owned and run residential treatment centers. The bill
has two separate components.
The first section establishes a new program, authorized at
$50 million each year for 5 years, through which the Assistant
Secretary for Children and Families at the U.S. Department of
Health and Human Services (HHS) is required to create national
standards and a federal system of review, evaluation, and
penalties for privately owned and run residential treatment
centers. Under the legislation, a covered program is defined as
one that provides a residential environment and serves children
with emotional, behavioral, or mental health problems or
problems with alcohol or substance abuse. The bill does not
cover hospitals accredited by a state, facilities that are
licensed and regulated by the state as homes for children in
foster care, or psychiatric residential treatment facilities
covered under the Social Security Act.
The bill establishes 14 areas in which the Assistant
Secretary must develop federal standards, and allows for the
creation of any other standards the Assistant Secretary deems
necessary. The 14 standards relate to disciplinary techniques,
conditions of employment for staff members, provision of
emergency medical care, and disclosure on promotional and
informational materials, among others. The Assistant Secretary
is also required to establish a national system of monitoring
and enforcement to begin as soon as the standards are final.
H.R. 5876 requires the Assistant Secretary to put the
standards in place within 180 days of the bill's enactment and
begin the monitoring and enforcement of those standards on the
date the standards are put in place.
The Assistant Secretary must also conduct unannounced site
inspections of each location at least once every two years and
must investigate all reports of abuse and neglect. The
Assistant Secretary is required to establish civil penalties
for violations of the standards up to $50,000 per violation.
In addition, the Assistant Secretary is required to create
a public website that discloses information about each program
relating to their compliance with the standards and state
licensing requirements, any deaths that occurred to a child at
a program, and any penalties levied by the state against a
program. The Assistant Secretary must also establish a national
toll-free telephone hotline to receive complaints of child
abuse and neglect at covered programs.
The bill also authorizes a private right of action for any
person suffering an injury-in-fact as a result of the violation
of the standards.
The second section amends title I of CAPTA to add a section
requiring the establishment of a state system of standards and
enforcement of these facilities, within three years from the
date of enactment, in order for a state to receive CAPTA
funding. This section is authorized at $200 million (an
increase of $95 million over current CAPTA funding levels).
Currently every state (as well as the District of Columbia and
the 5 territories) receives state grant funding under CAPTA.
The state grants program was funded at just under $27 million
in FY2008 with grant amounts ranging from over $3 million for
California to $93,000 for Vermont.
In this section of the bill, a covered program includes
those covered under the federal system but adds in government
operated entities that focus on serving children with
emotional, behavioral, or mental health disorders or problems
with alcohol or substance abuse.
Under this section of the legislation, a state is required
to develop standards that meet or exceed the federal standards
defined in the first section of the bill. Each state is also
required to develop policies and procedures to monitor and
enforce compliance with the licensing requirements. If the
state is not yet satisfying the requirements, it must develop
policies and procedures for notifying the Secretary and the
appropriate local child protection and advocacy system of any
report of child abuse and neglect at a covered program
operating in the state.
Each state is required to develop a publicly available
database of all covered programs operating in the state, and
must annually submit to the Secretary a report that includes
any violations of state licensing requirements and a
description of state activities to monitor and enforce
licensing requirements, including the names of programs that
underwent a site inspection along with a summary of the
results.
Beginning two years after the date of the enactment of the
bill, the Secretary must implement a process for continued
monitoring of each state that is determined to be satisfying
the licensing, monitoring, and enforcement requirements. The
bill also requires a random sample of review of cases of
reports of child abuse and neglect investigated at covered
programs to assess the state's performance with respect to the
appropriateness of response to reports of child abuse and
neglect. The Secretary may also conduct unannounced site
inspections of programs operating in the state.
Unfortunately, there were no legislative hearings scheduled
on H.R. 5876 before the bill was scheduled for markup by the
Committee. As referenced above, the bill was introduced less
than 24 hours before the second oversight hearing, which
prevented Committee Members on either side of the aisle from
delving into any substantive concerns with the introduced bill.
Committee Republicans would have appreciated an opportunity to
discuss and debate the manner in which the legislation seeks to
stem instances of child abuse and neglect at residential
treatment programs. It is also important to note that, if
legislative hearings had been held, relevant stakeholders,
including HHS, state and local governments, and nonprofit
organizations that operate residential treatment programs would
have had an opportunity to share their thoughts on the
legislation with Committee Members, including whether the
federal government has the expertise to carry out the
provisions of the legislation and the work that states and
organizations are currently doing to protect the well-being of
children in their care.
If hearings had been held on this legislation, Committee
Republicans would have sought to discover the rationale for
creating two parallel regulatory structures on the federal and
state level, especially due to the fact that state and local
governments have traditionally been responsible for regulating
private entities and enforcing laws regarding child abuse and
neglect. We also would have questioned why the legislation
lacks a sunset provision for the federal regulatory structure,
despite the majority's assurances that the bill does not
envision a permanent federal role. While direct federal
monitoring and evaluation of programs is not required once
states have systems in place, the federal standards and the
private right of action remain in place effectively maintaining
the comprehensive federal role in the regulation of private
programs. Committee Republicans would have asked why it is
necessary to codify a private right of action when state laws
clearly allow litigation. And, finally, Members should have had
the opportunity to question why the definition of a covered
program does not include government run programs in the federal
regulatory structure.
Committee Republicans believe that the underlying bill
creates a new structure that is redundant; authorizes an HHS
regulatory and monitoring role that would undercut our efforts
to hold states accountable; does not cover all of the
residential treatment programs that have committed abuse
against children; and will have negative ramifications if
enacted into law.
The Federal Role in Stemming Abuse and Neglect at Residential Treatment
Programs Under H.R. 5876
Committee Republicans believe that the federal government
should assist states in preventing child abuse by insisting
that states regulate and monitor residential treatment
programs. We believe that stopping child abuse is a necessary
and essential function of state and local government. Unlike
the provisions that were included in H.R. 5876, the best way to
address this situation is to work within current programs and
utilize vehicles like CAPTA to require states to establish a
system of standards and enforcement to prevent child abuse and
neglect to stop these abuses.
The proper federal role is one that ensures that states
fulfill their roles and responsibilities in stopping child
abuse in residential treatment facilities. Creating an entirely
new bureaucracy at HHS is not the best way to stem these
instances of abuse and neglect. The time and money that it
would take HHS to develop a new infrastructure for inspecting
each and every residential treatment center site could be
better spent insisting that states live up to their
responsibilities and helping states build their capacity to
prevent child abuse.
HHS expressed similar concerns about the new role and
responsibility of the federal government established in H.R.
5876. In a letter sent to Committee Members prior to markup,
the Department stated:
While ACF currently provides general funds to States
to improve systems that identify and address child
abuse and neglect and requires States that receive
Federal foster care funds to have licensing standards
for foster homes and institutions, youth who are not in
foster care and placed in private institutions that
receive no funds from ACF are outside our purview. The
bill requires investigations of individual child
fatalities as well as joint investigations of child
abuse and neglect at covered programs. The Federal
government has no oversight or rules governing child
abuse and neglect investigations, as each State has its
own process for defining and investigating child abuse
and neglect, including the timelines and methods for
responding to and completing investigations of
allegations. As such, any Federal investigations of
abuse and neglect would likely interfere and perhaps
conflict with a State's procedures for the same. We
also have concerns that ACF and the State would reach
different conclusions about whether abuse and neglect
occurred in a covered facility or the standards were
violated.
Committee Republicans are also concerned that the timeframe
requiring HHS to implement the standards and monitoring system
within 180 days after the bill is enacted will not allow the
Department to conduct all of the requisite work that will need
to be completed to put in place a new federal regulatory
structure. This includes, but is not limited to: hiring staff
to establish and oversee the new federal regulatory system;
training staff to establish and oversee the new federal
regulatory system; convening experts and other stakeholders to
develop the standards based on the 14 areas identified in the
bill and any additional areas that HHS defines; promulgating an
interim rule and seeking public comment on the proposed
regulations; determining where all of the covered programs are
located; developing and bidding contracts for the monitoring
and evaluation of each covered program and location; hiring and
training contractors to inspect each program and location; and
reporting on the findings at each program and location. It is
clear to Committee Republicans that the federal role
established in H.R. 5876 is not only duplicative and
unnecessary, but also unrealistic and may interfere with the
work being done at the state level to combat abuse and neglect.
To this end, during consideration of H.R. 5876, Committee
Republicans supported an amendment in the nature of a
substitute, offered by Congressman Howard P. ``Buck'' McKeon
(R-CA), the Senior Republican on the Committee. The Republican
substitute struck the federal regulatory and enforcement
requirement and strengthened the state system currently
operating under CAPTA. The substitute maintained the
requirements for the establishment of the state standards
included in the underlying bill and created a stronger role of
federal oversight, which is a more appropriate role for the
federal government to play in ending child abuse at residential
treatment programs. The substitute also required states to have
their systems in place in 18 months, cutting in half the
timeline proposed in the underlying bill, and included
government run programs in the definition of a ``covered
program.''
The substitute maintained the strong background check
requirements that were a part of H.R. 5876 and struck the
private right of action and federal sanctions put in place
under the legislation. The federal database and national
hotline in H.R. 5876 were also preserved in the substitute. In
short, the Republican substitute called for a more robust state
system of regulation and monitoring of these programs,
bolstered by a strong federal oversight authority.
Unfortunately, Committee Democrats rejected this common-sense
approach.
The Role of Trial Lawyers, Earmarks, and Victim Privacy in H.R. 5876
Committee Republicans are concerned that H.R. 5876 opens
the door to a new wave of litigation and lawsuit abuse.
Currently, state and local laws provide any victim of child
abuse and neglect with the right to sue. As such, we believe
that a new federal private right of action is unnecessary. For
this reason, Congresswoman Virginia Foxx (R-NC) offered an
amendment to strike the section of the bill creating a new
federal private right of action. While the amendment was
rejected, Committee Republicans supported this amendment
because state liability laws currently allow persons harmed to
seek relief in state courts.
Committee Republicans also supported an amendment to H.R.
5876, offered by Congressman Tom Price (R-GA), that would have
capped the hourly expenses of trial lawyers, in any lawsuit
brought under the new right of action created by the bill, at
$1,000 an hour. The underlying bill requires attorneys' fees to
be reasonable; it was the hope of Committee Republicans that
members on both sides of the aisle could agree in good faith
that any fee above $1,000 an hour would be unreasonable. Our
nation's legal system allows trial lawyers to impose
significant costs on businesses and non-profits simply by
filing a claim. Many organizations find it is less costly to
settle claims even where the claims are frivolous and without
merit. The opportunity to recoup outrageously high hourly fees
only encourages such behavior. Throughout our history and
indeed in many current state and federal laws, attorneys' fees
have been capped in order to limit the potential for abusive
lawsuits. This amendment would have placed a very reasonable,
indeed a generous cap on fees and would help to limit that
potential. Unfortunately, the amendment was defeated on a party
line vote, making it impossible for Committee Members to ensure
that victims of abuse and neglect are protected, not exploited.
Congressman Tom Price (R-GA) offered a second amendment,
supported by Committee Republicans, aimed at protecting
taxpayers. Specifically, the amendment would have reduced the
authorized spending for title I of the Child Abuse Prevention
and Treatment Act by 1 percent, prohibited money from being
appropriated for earmarks, and prohibited federal money from
going to residential treatment programs in violation of the
health and safety standards created in the bill. The slight
reduction in the authorization level would not have affected
the overall funding of the program, and would have allowed for
a significant increase in current appropriations to assist
states with their efforts to prevent abuse and establish a
system of standards and evaluation for residential treatment
programs. More importantly, the amendment would have prohibited
CAPTA funding from being used for earmarks through the
appropriations process in order to ensure that limited funds
are distributed to each state, rather than to organizations
with paid lobbyists or political connections. Finally, the
amendment would have prohibited any program in violation of the
standards and requirements set forth in this bill from
receiving any CAPTA funding, an important provision lacking in
the underlying bill that would deny funding to unscrupulous
programs. Unfortunately, the amendment was defeated on a party
line vote.
Committee Republicans were able to secure one important
improvement to the bill by proposing an amendment, supported by
Committee Democrats, on the protection of victims' rights.
Congressman Rob Bishop (R-UT) offered an amendment to H.R. 5876
to ensure instances of abuse and neglect reported by states do
not contain any information that is personally identifiable of
the victim. Reports of abuse and neglect are highly
confidential and this amendment ensures victim privacy remains
protected and no federal requirement limits that
confidentiality. The amendment was agreed to by voice vote.
Conclusion
Committee Republicans share the commitment to protect young
people enrolled in residential treatment programs and believe
that even one instance of abuse, neglect, or death is too many.
However, we believe that the most effective and appropriate way
to protect those enrolled in these programs is to establish a
system of federal oversight that holds states responsible for
identification, licensure, regulation, and monitoring.
States have historically been responsible for the direct
regulation of child abuse and neglect, including those
instances that occur at residential treatment programs.
Committee Republicans believe that states should maintain this
fundamental responsibility to protect their citizens and
monitor the organizations operating within their borders.
Buck McKeon.
Tom Petri.
Mark Souder.
Judy Biggert.
Joe Wilson.
John Kline.
Cathy McMorris Rodgers.
Kenny Marchant.
C.W. Boustany, Jr.
Virginia Foxx.
Rob Bishop.
David Davis.
Tim Walberg.