State Legislation

CAFETY's Report on the NATSAP & AACRC sponsored "National Gathering"

Thursday, August 18 2011 Shain Neumeier, CAFETY Law Clerk

Two representatives from the Community Alliance for the Ethical Treatment of Youth (CAFETY), Eric Norwood and Shain Neumeier, attended a national conference held by the American Association of Children’s Residential Centers (AACRC), entitled Gathering on Common Ground, in Milwaukee, Wisconsin on July 21 and 22, 2011. Other attendees included representatives from residential treatment provider trade organizations such as AACRC and the National Association of Therapeutic Schools and Programs (NATSAP), and from organizations such as the Alliance for Safe, Therapeutic and Appropriate use of Residential Treatment (A START) and the Building Bridges Initiative which work to promote humane and effective practices in children’s mental health treatment. The conference consisted of five discussion segments, with Introductions and Residential Treatment Models on the first day and Points of Agreement and Disagreement, Upholding the Highest Standards, and Moving Forward on the second. In preparation for the conference, CAFETY prepared a 31-page report on our advocacy positions and data from our survivor survey to support them. This report was distributed to other organizations’ representatives on the second day of the conference for use in the discussions.

All the organizations present expressed genuine interest in improving residential programs and mental health care for children in general. Many, in fact, seemed opposed to at least some of the youth residential treatment industry’s more questionable practices. That being said, there was not enough time to discuss some necessary changes to the way in which the industry operates in any great depth. Furthermore, there still remain a number of fundamental disagreements on crucial points regarding what rights youth are entitled to and what constitutes effective treatment. What came out of this conference was a promise of further discussions and a decision to work together on issues upon which the organizations represented agreed.

CAFETY made the most headway with the other organizations attending the conference in advocating for measures that would ensure that residential treatment programs are truthful and clear in their advertising. CAFETY’s representatives, along with those from A START, explained the harm that can result from using fear-based advertisements that promise quick fixes for challenging youth behavior and from using euphemistic language to describe programs’ troubling treatment and behavioral management practices. Both the representatives from provider or trade organizations and those from child welfare organizations agreed that these were important issues that demanded solutions. In order to further parent, and perhaps, hopefully, youth, awareness of what practices in residential programs are acceptable, the organizations present agreed that individual programs should either post the Building Bridges Initiative’s Self-Assessment Tool for residential programs on their website or otherwise make it widely available. The group as a whole also agreed to form a taskforce that would work towards promoting truth in advertising within the industry. This task force will include, among others, Brian Lombrowski (CAFETY and the Building Bridges Initiative) and Cynthia Clark Harvey (A START).

The various organizations also supported the passage of state and perhaps federal regulations regarding residential programs, as well as the establishment of a monitoring system that would enforce these standards. The length and format of the conference did not allow for coming to any conclusions about what the regulations would require, nor about who would do the monitoring and how. That being said, the group as a whole agreed to create a task force that would work towards their establishment. In pursuing this goal, this task force will seek to establish model regulations and advocate for them to be adopted by government agencies, legislatures or some combination thereof. This task force will include Eric Norwood, Brian Lombrowski and Robert Friedman (A START), among others.

There were many points regarding to the treatment and disciplinary practices at residential programs on which the group disagreed, or on which providers and their representatives remained silent. Possibly the most significant disagreement was over the industry’s continued use of private escort companies in transporting youth to residential programs. CAFETY made its position clear that facilities should neither encourage the use of nor accept youth transported by escort companies in any circumstance because of the abuse and trauma involved. Representatives of trade organizations and providers, on the other hand, insisted that in some cases such interventions were necessary as the only option. The group eventually agreed that parents should accompany their children to residential programs whenever possible. That being said, CAFETY stands by its support of a total ban on the industry’s use of private escort companies, and will continue to advocate for measures that would achieve this.

CAFETY and its allies also met with some opposition on whether children should, in all circumstances, have access to the outside world, specifically to their parents. The representatives from provider and trade organizations did not comment on whether children should be able to contact the police, emergency medical help or child protective services, although CAFETY did advocate for this on several occasions. However, a representative from AACRC expressed doubt as to whether contact with one’s parents was a right to which children in residential programs are entitled. There was no further discussion or resolution on this issue.

Despite the fact that at least some representatives from provider and trade organizations seemed to support moving away from the punitive practices used at many residential programs, it is unclear to what extent they will join in forbidding or otherwise changing them altogether. CAFETY brought up a number of its advocacy points – regarding the use of restraint and seclusion, the use of level systems to enforce compliance, and the right to basic needs such as food, physical safety and bathroom use in all circumstances, for instance – that were not taken up for discussion or debate during the conference. Also unclear was the industry’s perspective on survivor involvement in improving residential treatment. A number of people, including representatives on behalf of providers, seemed willing to (further) include survivors in further discussions and resulting efforts. Meanwhile, however, a NATSAP representative expressed the all-too-familiar view that some of the concerns and negative reports about residential programs are exaggerated or unfounded, which is dismissive of survivors and their experiences by implication. Most worryingly when it comes to determining where providers stand is how an AACRC representative said that whether everybody at the conference could agree that youth in residential programs were entitled to basic human rights and dignity would depend on how those terms were defined. Hopefully further discussions will clarify providers’ and other organizations’ stance on these issues, if not convince them of the validity of and need to address the concerns of survivors and their supporters.

As a result of the conference, members of CAFETY and its allies will work with providers as part of the two taskforces agreed upon to establish and uphold basic standards for children’s residential programs. In addition, CAFETY will continue to be an active participant in discussions with the other organizations involved, advocating for still more stringent treatment standards and human rights protections. While CAFETY will continue to work independently on the issues upon which there was disagreement or uncertainty, we welcome the support of other organizations in establishing effective regulatory standards and monitoring and in ensuring that residential programs are truthful and clear in how they present themselves.

Download CAFETY's 30 pg handout detailing CAFETY's advocacy positions and survey results here.

Letter in support of proposed amendment in MA to prohibit use of Level III aversives

Thursday, August 18 2011 administrator

July 18, 2011

Elin Howe

Commissioner Department of Developmental Services

500 Harrison Avenue

Boston, MA 02118

Dear Commissioner Howe:

The Community Alliance for the Ethical Treatment of Youth (CAFETY) is a membership organization made up of survivors of residential treatment programs for youth, their families, mental health professionals and other supporters of humane, effective methods of treatment for youth in residential and community settings. In developing our positions and advocating in support of legal and social change consistent with them, CAFETY draws upon the opinions and research of qualified mental health professionals, the findings from state and federal government investigations, and the first-hand experience of countless youth placed in residential programs and their families.

CAFETY strongly supports the Department of Developmental Services's (DDS) proposal to amend 115 CMR 5.14 to prohibit the use of Level III aversive behavioral interventions (“Level III aversives”), including corporal punishment, contingent electric shock and long-term seclusion, in all programs operated, licensed or funded by DDS. Numerous investigations and reports have revealed that Level III aversives are not only ineffective in addressing behavioral problems, but are unsafe and can result in severe psychological trauma, physical injury and even death.[1] Furthermore, these investigations and reports have repeatedly shown that the way in which Level III aversives are used is frequently excessive and abusive.[2] One such report, authored by the human rights advocacy organization Mental Disability Rights International and focusing on the practices of the Massachusetts-based Judge Rotenberg Educational Center (JRC), has resulted in the United Nations declaring that the use of contingent electric shock constitutes torture.[3] Meanwhile, research and best practices in the field of mental health and education indicate that non-coercive treatment and positive behavioral approaches are far more effective than aversive interventions in addressing behavioral problems.[4] Finally, advocates and self-advocates in the developmental disability community, who are among the people who have been and will be most affected by the laws and regulations regarding aversives, have consistently supported banning or at least limiting their use.[5] For all of these reasons, CAFETY urges that the DDS adopt the language in proposed regulation 115 CMR 5.14(4)(b)(3) that would forbid the use of Level III aversives.

However, CAFETY requests that DDS strengthen its proposed regulations still further in order to protect those individuals whose treatment plans currently include the use of Level III aversives. If it is the belief of DDS, as it is ours, that the infliction of pain and the use of coercion violate the basic human rights of, and thus have no place in the treatment of, youth and people with disabilities, then DDS’s regulations must not allow their use on anyone. At very least, the new regulations should require that all DDS-operated, licensed and funded programs phase out the use of Level III aversives entirely, for all program participants, within no more than three years of the new regulations taking effect. Even this solution does not adequately protect against the possibility that programs that use Level III aversives may respond to these regulations by quickly adding the use of Level III aversives that would be unnecessary even by the program’s standards to treatment plans and then seeking and obtaining approval for their use as a precautionary measure. This is especially worrying in light of the fact that at least two separate recertification reports on the use of Level III aversives at the JRC in the recent past have revealed that the procedural safeguards meant to protect against the approval of unnecessary and harmful uses of aversives are inadequate or have not been observed at all.[6] Because of these concerns, and in the general interests of the human rights of those whose treatment plans currently or may in the near future include the use of aversives, CAFETY would urge the DDS to remove the language of proposed regulation 115 CMR 5.14(4)(b)(4), creating an exception to the general ban on Level III aversives for program participants whose treatment plans that call for their use as of September 1, 2011, and all associated language entirely.

Thank you very much for your time and concern. Please feel free to contact CAFETY at (877) 322-2389 or at admin@cafety.org if you have any questions or would like any clarification on our position.

[1] See generally, e.g. Nat’l Disability Rights Network, School is Not Supposed to Hurt: Investigative Report on Abusive Restraint and Seclusion in Schools 5 (2009) (describing deaths, physical injury and psychological trauma resulting from the use and misuse of restraints and seclusion in schools); Seclusions and Restraints, Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers: Testimony Before the Comm. on Educ. and Labor, H.R., 111th Cong. (statement of Gregory D. Kutz, Managing Director of Forensic Audits and Special Investigations, Gov’t Accountability Office) [hereinafter “Seclusions and Restraints Testimony”] (showing the harm caused by a lack of federal legislation restricting the use of restraint and seclusion in schools and private facilities); N.Y. STATE EDUC. DEP’T, Observations and Findings of Out-of-State Program Visitation: Judge Rotenberg Educational Center (2006), (revealing extensive harmful and excessive use of aversives, including Level III aversives, at the Judge Rotenberg Educational Center [JRC] in Canton, Massachusetts).

[2] See generally Seclusions and Restraints Testimony, supra note 1 (providing examples of abuses of the use of restraint and seclusion in public schools and private facilities); Comm. Of Mass. Dep’t of Early Education and Care, Investigation Report on JRC – 66 Kevin Clancy Way (2007) (finding evidence of abuse and neglect at JRC in incident where one student received 77 consecutive applications of contingent electric shock and another student received 29, both at the behest of a prank caller); N.Y. Educ. Dep’t, supra note 1 (describing practices at the JRC including subjecting students to contingent electric shock for behaviors including “nagging, swearing and failing to maintain a neat appearance” and the use of “behavioral rehearsal lessons” in which students are restrained without provocation, forced to misbehave by staff and then punished with contingent electric shock for doing so); Mental Disability Rights Int’l, Torture Not Treatment: Electric Shock and Long-Term Restraint in the United States on Children and Adults with Disabilities at the Judge Rotenberg Center (2010) [hereinafter MDRI] (presenting evidence that JRC’s use of Level III and other aversives violates international human rights law prohibiting torture).

[3] See generally MDRI, supra note 2; Office of Senator Brian A. Joyce, U.N. find shock treatments at Judge Rotenberg Center in Canton to be torture, http://brianajoyce.com/pressreleases/un-finds-shock-treatments-judge-rotenberg-center-canton-be-torture (last visited July 11, 2011). The JRC is also currently under investigation by the U.S. Department of Justice for violations of the Americans with Disabilities Act for its use of Level III and other aversives. See Letter from Renee Wohlenhaus, Deputy Chief, Disability Rights Section, U.S. Department of Justice Civil Rights Division, to Nancy Weiss, Professor, University of Delaware (February 18, 2010), available at http://leftbrainrightbrain.co.uk/wp-content/uploads/2010/02/US-Dept.-of-Justice-JRC-Investigation-Feb.10.pdf.

[4] See, e.g., Nat’l Disability Rights Network, supra note 1, at 35-37 (best practices recommend the use of positive behavioral support programs as opposed to the use of restraint and seclusion in special educational settings).

[5] See, e.g., The Autistic Self Advocacy Network, Preventing Abuse, Neglect, and Bullying, http://www.autisticadvocacy.org/modules/smartsection/category.php?categoryid=77 (last visited July 11, 2011); TASH, TASH Resolution Opposing the Use of Aversive and Restrictive Procedures (2001), available at http://66. 147.244.209 /~tashorg/wp-content/uploads/2011/01/TASHResolutionOpposingAversiveRestrictiveProcedures.pdf.

[6] See MDRI, supra note 2, at 39-40 (2009 recertification report revealed JRC’s Human Rights Committee did not meet or review Level III aversive treatment plans as required by state regulations); Curtis Prout, M.D., et al., Report of the Certification Team on the Application of the Judge Rotenberg Educational Center for Level III Behavioral Modification Certification 15-18 (2003) (recertification team found professionals’ involvement with and review processes of mandatory Peer Review and Human Rights Committees to be insufficient for purposes of providing independent oversight of use of Level III aversives).

Hearings - Protection of Students with Disabilities Ammendment Act of 2008

Monday, June 23 2008 administrator

Hearings : Protection of Students with Disabilities Ammendment Act of 2008, Washington D.C.

Part 1
Part 2