Beyond Reform: The Big Picture
Minimal Safegaurds
Currently, there is no federal regulation of behavior modification facilities for children, nor is there any requirement that psychotherapies, even for children, be proven safe and effective before marketing.[1] A few states have adopted regulations, yet many facilities avoid state licensure and monitoring by claiming exemption to state licensure requirements.[2] As of 2006, only a handful of states have proposed or passed comprehensive legislation that establish standards to monitor and regulate for-profit residential treatment facilities for children.[3] Yet, because in no state are youth required to be granted telephone access to call child abuse hotlines or federally mandated protection and advocacy groups in particular[4], they are still left with minimal proper safeguards[5] in an isolated community, often thousands of miles from home.[6]
Recently introduced federal legislation to regulate programs would address at least some concerns surrounding the treatment of youth in private residential programs and, although it would not address the appropriateness of placement nor of the ‘therapies’ provided, it is an important step in assuring the most basic of safeguards are in place.[7]
Stop Child Abuse in Residential Programs for Teens Act of 2011 – (HR 3126; S. 1667) would do the following:
Keep teens safe with minimum standards for residential programs that are focused on teens with behavioral, emotional, mental health, or substance abuse problems
- Prohibit programs from physically, mentally, or sexually abusing children in their care;
- Prohibit programs from denying children essential water, food, clothing, shelter, or medical care – whether as a form of punishment or for any other reason;
- Require programs to provide children with reasonable access to a telephone and inform children accordingly;
- Require programs to train staff in what constitutes child abuse and neglect and how to report it;
- Require that programs only physically restrain children if it is necessary for their safety or the safety of others, and to do so in a way that is consistent with federal law already applicable in other contexts; and
- Require programs to have plans in place to provide emergency medical care.
Increase transparency to help parents make safer choices for their children
- Require programs to disclose to parents the qualifications, roles, and responsibilities of staff members;
- Require programs to notify parents of substantiated reports of child abuse or violations of health and safety laws; and
- Require programs to include a link or web address for the website of the U.S. Department of Health and Human Services, which will carry information on residential programs.
Hold teen residential programs accountable for violating the law
- Require states to inform the U.S. Department of Health and Human Services of reports of child abuse and neglect at covered programs and require HHS to conduct investigations of such programs to determine if a violation of the national standards has occurred; and
- Provide HHS the authority to assess civil penalties up to $50,000 for every violation of the law.
Ask states to step in to protect teens in residential programs
Within three years, states must require all public and private programs to be licensed, meet standards that are at least as stringent as the national standards, and implement a monitoring and enforcement system. The Department of Health and Human Services would continue to inspect programs where a child fatality has occurred or where a pattern of violations has emerged.
Beyond Doing the Minimum
Even with federal regulation in place, youth and families will still encounter private programs that seek to profit off of institutionalizing youth who are struggling, despite the fact that “studies show that community mental health programs for children and youth with significant mental health and behavioral problems are more effective and less costly.”[8] While the U.S. Surgeon General’s 1999 report on mental health found that “admissions to residential treatment facilities are justified on the basis of community and child protection,” these justifications do not stand up to research scrutiny.[9] “Seriously violent and aggressive children and youth do not improve in these settings and community interventions that target change in peer associations are highly effective at reducing aggressive behaviors.”[10] Moreover, children who need protection from themselves (i.e., who attempt suicide, persistently run away, or abuse drugs) may require brief hospitalization for an acute crisis, but subsequent intensive community-based services is likely to be more appropriate than an institution both from a clinical and a rights based perspective.[11]
Transforming deeply entrenched prejudices, particularly where financial interests are at stake, will not be easy. For instance, just as the National Association of Therapeutic Schools and Programs (NATSAP), the private industry trade organization of which Aspen is a member, outlined the parameters of this industry and estimated big profits in the institutionalizing of youth, the Supreme Court issued the landmark ruling in Olmstead - holding first that unjustified institutional isolation of persons with disabilities is a form of discrimination. [12] The court reached this conclusion based on two principles: 1) such institutional placement perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.; and 2) confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.[13]
The courts ruling was based on principles rooted in the social model, rather than a medical model, of care. Anita Silvers, a prominent philosopher in the area of disability rights, proposed that being biologically anomalous is only viewed as abnormal due to unjust social arrangements - notably the existence of a hostile environment that is “artificial and remediable” as opposed to “natural and immutable.” [14] In other words, those with disabilities should be granted equal opportunity and it is the barriers created by society that is problematic, not the person (or youth) with the disability that has “the problem”.
Contrary to the forward movement in the disability rights arena, it was around this time a NATSAP representative speculated that “at least 200,000 adolescents in America. . . need our [residential] programs and can afford them”. Evidently, the industry took no heed to the Supreme Court ruling and the significance of the holding in the case when, rather than choosing to provide non-discriminatory services in the community, it conflating the mere existence of youth with mental illness or other issues and families need for services with a “need” for more institutions. Instead of contributing to the solution, the industry chose to further stigmatization and segregation of youth in need.
This should come as little surprise given the philosophical foundation, the medical model, upon which the industry arises. The medical model does not necessarily mean the program(s) are legitimate places of treatment, they may be religious or more of a boot camp, but the philosophy remains the same. All are based on the concept that a youth experiencing challenges in functioning at home is “a trait that results from the internal functional limitations of an individual”[15] and is deemed as a “deficiency.”[16] The model therefore supports and sustains legal principles and policies that regard those youth as less productive and devalues their social worth; this perceived lack of value given to their life is justification for segregation.[17]
While the industry, as a “parent-choice”, may attempt to wipe its hand cleans of contributing to the problem of institutionalization by suggesting they are merely providing a service to meet demand, the option, where community based services are unavaliable, creates a false choice - parents feel they are left with no choice.
The conflict of interest demonstrated has led to fraudulent marketing practices and the widespread delivery of misinformation to concerned parents about the appropriateness of residential care, the actual value of their services in terms of scientifically based outcomes and a programs adherence to ethical principles.[18] Sadly, this also includes the failure to respect the basic human rights of children. This makes giant corporations like Aspen and accreditation bodies inherently part of the problem. One example of all three is Aspen’s plans to target families with youth as young as 10.[19]
Are Wilderness “Therapy” Camps Institutions?
Some might argue that wilderness programs (and therapeutic boarding schools, religious behavior modification boarding schools, specialty boarding schools) bear no resemblance to institutions, however this is but a symptomatic misconception of the culture in which we live more than a reflection of reality. External factors (i.e. size) of an institution are not necessary characteristics of an “institutional culture.” Although large care facilities are more likely to infringe rights, smaller facilities can be profoundly institutional.[20] In addition, it is also possible to transfer the “institutional culture” into non-residential community care services.[21] All things considered, the concept of an “institutional culture” is primarily based on the manner in which the environment and treatment of facilities and services conflicts with the “human rights and dignity of [children], their quality of life and health, autonomy and social inclusion.”[22]
The typical characteristics of an “institutional culture” are:[23]
· Depersonalization: removal of personal possessions, signs and symbols of individuality and humanity; refers to practices that deny opportunities to have possessions and to experience personal events (both collective and private).[24]
· Block Treatment: processing people in groups without privacy or individuality. Refers to activities carried out with all residents treated alike and required to do things at the same time.[25]
· Rigidity of routine: refers to inflexible daily routines, such as fixed timetables for waking, eating and activity irrespective of personal preferences or needs.
· Social Distance (i.e. paternalism): strict medical model of care creates social distance between staff and children causing children to be severely neglected. Staff and caregivers that ascribe to this paternal approach often have authoritarian, even tyrannical, attitudes that result in emotional and physical abuse.[26] Thereby, creating an environment where children are not provided with opportunities to form healthy attachments with suitable, nurturing and permanent caretakers—which has proven to be detrimental to their overall well-being.[27]
· Social Isolation and Segregation: children are physically and socially isolated from their families and society. First, institutions are often located at some distance from the children’s place of origin, which discourages contact from families and the wider community.[28] Second, the medical model of care reinforces social isolation because children are excluded from normal social contact and denied the right to participate in play, leisure and cultural life. Third, youth are often segregated from other youth and suffer more in terms of isolation and neglect from the staff.[29] Other factors that may contribute to social isolation and segregation are locked doors, poor facilities for visitors and frequent use of sedative drugs.[30]
All residential care institutions embody the “institutional culture.” Therefore, no matter the investment put forth to ‘fix’ institutions, the inherent paternalistic characteristics of institutional care cannot be corrected:
“[T]he problematic characteristics of institutional care are not exclusively linked to poor material conditions - and it is doubtful that they could be solved simply by an improvement thereof. It is obvious that better staff-user ratios and increased emphasis on meaningful activities can improve the quality of care. Nonetheless, problems linked to depersonalisation, block treatment, rigid routines and social distance continue to exist also in establishments where the overall material conditions are reasonably good.
In addition, some of the defining characteristics of institutions are increasingly recognised as stigmatising users who are physically and socially isolated (segregated) from the wider society. Whether by policy or for want of alternative sources of support, most residents are not easily able to leave them to live elsewhere. This, again, appears to be an inherent problem of institutional care which cannot be solved by increasing expenditure on institutions.
[. . .] There is now increasing evidence that the effects of institutionalisation for children - even where the institutions in question have good material conditions and qualified staff - can include poor physical health, severe developmental delays, (further) disability, and potentially irreversible psychological damage.”[31]
Moving Forward
On July 30th, 2009, the United States signed the Convention on Rights of People with Disabilities.[32] Accordingly, mental health professionals ought keep foremost in our mind the importance of the realization of a suitable deinstitutionalization strategy and apply pressure government officials and private industry to develop precise goals and objectives to eradicate the “institutional culture” altogether. As these factors indicate, such objectives must include a worldwide initiative to prevent any further financing of institutions and, instead, ensure that all pertinent expenditures are invested in community-based services, which adopt the social model of care.
Suffice it to say, it is incumbent upon mental health professionals and the public at large to avoid referring a youth to any that uses coercive and trauma inducing practices or interventions or otherwise market themselves as schools whose sole purpose is to discriminatively institutionalize young people who can and should be treated in their family environment and within their community.
Residential placement should never be seen as the inevitable solution to a lack of community services for youth with disabilities or an abused or neglected child – in each instance, the institutionalization of children, due to the absence of community supports, simply perpetuates systems failure and the problem of inappropriate institutionalization by feeding resources and contributing to stigma and public prejudices. We ask that the new wave of mental health professionals not be fooled by the different packaging in which institutionalization is being sold here today.
We ask you join survivors of residential care in furthering this movement that recognizes, first and foremost, that struggling youth are not “the problem”, but rather are entitled to care that assures them a place in the community and advocate for such solutions accordingly.
Recommended Additional Reading Material:
U.N., Guidelines for the Alternative Care of Children, (2009), available at: http://www.childcentre.info/the-united-nations-guidelines-for-the-alternative-care-of-children/
Save the Children, See Me, Hear Me: A guide to using the UN Convention on the Rights of Persons with Disabilities to promote the rights of children, 2009, available at: www.cafety.org/resources/857-see-me-hear-me-a-guide-to-using-the-un-convention-on-the-rights-of-persons-with-disabilities
[1] Szalavitz, supra n. 3, at 5, 13.
[2] ABA Report, supra n. 53, at 4-5.
[3] Id.
[4] 42 U.S.C. § 10801 (Enacted under the Protection and Advocacy for Individuals with Mental Illness Act, organized under the law of each state, the Act establishes a Protection and Advocacy System charged with investigating incidents of abuse and neglect of persons with mental illness).
[5] Utah Admin. Code r. R501-15 (West 2010).
[6] Lenore Behar, Robert Friedman, Allison Pinto, Judith Katz-Leavy, Hon. William G. Jones, Protecting Youth Placed in Unlicensed, Unregulated Residential treatment Facilities, 45 Fam Ct Rev. 399, 404 (2007).
[7] http://democrats.edworkforce.house.gov/blog/facts-stop-child-abuse-residential-programs-teens-act-2011
[8] Dwight Smith, ABA Comm. on Youth At Risk, Report to the H. of Delegates 5, available at http://www.abanet.org/leadership/2007/midyear/docs/SUMMARYOFRECOMMENDATIONS/hundredfourteen.doc (posted Feb. 2007) [hereinafter ABA Report].
[9] Id. at 5-6.
[10] Id. at 6.
[11] Id.
[12] The Supreme Court stated that individuals have such a right unless the state can show that implementation would be a fundamental alteration. Olmstead v. L.C., 119 S.Ct. 2176, 2187 (1999).
[13] Id.
[14] See Anita Silvers, Formal Justice, in Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy 13, 75 (Anita Silvers et al. eds., 1998).
[15] Matthew Diehr, Comment: The State of Affairs regarding Counseling for Expectant Parents of a Child with a Disability: Do ACOG’s New Practice Guideline Signify the Arrival of a Brave New World?, 53 St. Louis L.J. 1287, 1292-93 (2009).
[16] Save the Children, See Me, Hear Me at 99.
[17] Save the Children, See Me, Hear Me at 99.
[18] See generally Nicole Bush, PhD et al, Treatment Research Lacks Good Science - A detailed scientific critique of Behrens study findings, (August 2011) http://www.cafety.org/component/content/article/860
[19] Lon Woodbury & Kathy Nussberger , EVOLUTION OF ASPEN & PARENT-CHOICE INDUSTRY Two part series on Aspen Education Group , http://www.strugglingteens.com/artman/publish/article_5262.shtml (Feb 20, 2006)
[20] European Commission, Report of the Ad Hoc Expert Group, supra 28 at 7-8; See Mental Disability Rights International, Hidden Suffering: Romania’s Segregation and Abuse of Infants and Children with Disabilities, 13-20 (2006) (discussing the dangers of “smaller” institutions.
[21] Jim Mansell & Julie Beadle-Brown et al., Deinstitutionalisation and community living: position statement of the Comparative Policy and Practice Special Interest Research Group of the International Association for the Scientific Study of Intellectual Disabilities, Journal of Intellectual Disability Research, vol. 54:2,112, 105-6 (Feb. 2010) (stating the following: “in countries which have replaced large residential institutions with services in the community, it has been recognised that it is possible to transplant many of the features of institutions to these new services.”)
[22] European Commission, Report of the Ad Hoc Expert Group, supra 28 at 8.
[23] European Commission, Report of the Ad Hoc Expert Group, supra 28 at 8; accord Peter Bowie, Environmental quality for patients with dementia, Advances in Psychiatric Treatment (1996), vol.2, 38, 35; but cf. Matthew Colton, Dimensions of Foster and Residential Care, J. Child Psychol. Psychiat. Vol. 29, No. 5, 600, 595 (1988) (Colton defines ‘depersonalization’ and ‘block treatment’ slightly different from the European Commission. The European Commission defines ‘block treatment’ as processing people in groups. Presumably, “processing people in” also refers to the admittance process. However, Colton categorizes the admittance process under ‘depersonalization.’ This report conforms to the European Commission’s categorization of the admittance process as being under ‘block treatment.’).
[24] Peter Bowie, Environmental quality for patients with dementia, Advances in Psychiatric Treatment (1996), vol.2, 38, at 33.
[25] Id. at 35.
[26] Bowie at 33.
[27] Georgette Mulheir et al., De-institutionalising and Transforming Children’s Services: A Guide to Good Practice, 28-33 (2007).
[28] Id. at 31.
[29] See Committee on the Rights of the Child, General Comment, No. 9, (Forty-third session, 2007), para. 42, U.N. Doc. CRC/C/GC/9 (Feb. 2007) (discussing that CWDs are particularly vulnerable to neglect and negligent treatment); Tobis, supra 28 at 9 (discussing segregation, isolation and neglect of CWDs in institutional facilities).
[30] Bowie, supra 33 at 33. See also Mulheir, supra 36 at 31 (explaining the effects of poor facilities, such as small rooms, minimal furniture and no toys, that discourage even parents from visiting and engaging with their children); UNICEF Romania, Monitoring the rights of mentally disabled children and young people in public institutions, 35 (2005-2006), available at http://www.unicef.org/ceecis (discussing the usage of psychotropic drugs on children, not for medical reasons, but rather for the sedative effect; thus used as a de facto chemical restraint).
[31] European Commission, Report of the Ad Hoc Expert Group, supra 28 at 10-11.
[32] Press Release, Statement by Kathleen G. Sebelius, Sec'y of Health andHuman Servs., On US Signing of the United Nations Convention on the Rights of Persons with Disabilities (July 30, 2009), available at http://www.hhs.gov/news/press/2009pres/O7/20090730a.html ("Today, the United States joins 141[ ]other nations who have signed the United Nations Convention on the Rights of Persons with Disabilities. The signing of the UN Convention sends an important message that this country is committed to equal rights for people with disabilities, in the United States and around the world.").
CAFETY’s Advocacy Positions on Residential Programs
Residential treatment programs need to be upfront and honest about the treatment, education, and overall experience they provide in all advertisements and communications with parents.
Families considering residential placement for their youth are in crisis and often feeling desperate about their situation. It is important for these parents to have sufficient information to consider both the benefits and risks of residential treatment when making their decision. Truthful marketing and contracts that only promise treatment for the condition the youth is being treated and the likely results that can be delivered as well as a full disclosure of potential harm is necessary so that families may make an informed decision when considering residential treatment.
Residential treatment programs need to use clear and consistent terminology when describing their philosophy, treatment methods, disciplinary procedures, and general practices.
Using recognizable, common language rather than industry jargon and euphemistic terms will help families make informed decisions about residential treatment and have a better understanding of what the youth will experience at the program. It is important for parents, youth, and the general public to understand what happens in residential treatment programs and be able to distinguish which practices are therapeutic and which are used solely for punitive reasons.
Residential treatment should take place in programs and facilities as close to home as possible.
Youth will return to their communities and would be best served by receiving treatment in them, as opposed to being sent to isolated institutional environments hundreds or thousands of miles away from home.
Residential treatment should take place in as few programs and as quickly as possible.
Research has shown - while short-term residential treatment can be of some benefit - long-term residential treatment is more harmful than good. The amount of time youth spend in residential treatment should be based solely on the actual need for residential care, and should never be extended as punishment for noncompliance.
Residential programs should not use private escort companies or admit youth transported by them.
The private escort experience is almost always extremely traumatic for youth, and begins the residential treatment experience with force and coercion, neither of which are conducive to treatment and recovery.
Residential programs should encourage parents to be upfront and honest with youth about the residential program they will be attending and the nature of the treatment they will be receiving.
Parents should be encouraged to openly discuss any plans for a residential placement with their children and invite input before making a decision.
Youth and their families should be included in the development of individual treatment plans.
Residential treatment programs should make clear what diagnoses youth are being treated for, what method of treatment the program proposes to use, and how long treatment is expected to last to youth and their families far in advance of placement. Residential treatment providers should also allow for input, including the refusal of certain aspects of treatment, by both youth and their families, and seek input from other relevant individuals when appropriate.
Residential treatment needs to include a specific discharge plan for each youth with a focus on transitioning back into communities.
Continued outpatient care and access to support systems within the community is often necessary to ensure that youth succeed in a less restrictive setting. Discharge planning as part of the treatment plan can also make residential placement shorter and more effective.
Residential programs should inform youth about their individual rights and allow them access to information about their rights while receiving treatment.
For youth to exercise and defend their right they must first have knowledge of what those rights are. Having these rights posted at all times in visible places in a residential program will serve to remind both youth and staff of what kind of treatment is and is not acceptable.
Residential programs should always provide youth with unrestricted and unmonitored communication with family members, advocates, protection agencies, and friends.
Youth should be able to seek support from and report abuse and neglect to the police, emergency medical services, child protective services, therapists and advocates in their community, or their parents without censorship or fear of retaliation. Ideally, they would have continued access to their extended family and friends throughout their treatment in order to maintain and foster close relationships and to ease their transition back into the community and prevent feelings of isolation.
Residential programs should not put youth in the position of policing or punishing one another.
Encouraging or forcing youth to police and punish others teaches maladaptive modes of interaction that create fear rather than trust, and as a practice has no use outside of a coercive institutional setting. It also invites physical and emotional abuse between youth.
Residential programs must provide youth with a quality education appropriate to their specific needs.
Youth are legally entitled to an appropriate education, including - if necessary - an individualized education plan to address their learning needs. Instructors qualified by the appropriate state accreditation agencies should provide education during residential treatment and lesson plans need to be rigorous enough to meet or exceed the level of education that youth would receive in their communities. We believe that it is inappropriate to withhold educational services as a punishment. Exclusion from class should only be used to prevent immediate harm or substantial disruption, for only as long as is necessary under the circumstances.
Youth in residential programs have a right to effective and ethical mental health and substance abuse treatment.
Residential programs have an obligation to provide humane and effective treatment. Both individual and group therapists should be licensed and qualified, and should observe standards of confidentiality, informed consent, and treatment in general that govern the mental health profession. We believe that mental health treatment, or the deprivation thereof, should never be used as a means of punishment.
Residential treatment programs should only admit youth they can provide treatment for.
Defiance is not a treatable mental disorder, and to even unintentionally conflate mental health with obedience is problematic on numerous levels. Likewise, a youth should never be admitted to a treatment program for being homosexual.
Residential programs should not use “level systems” based on compliance to determine a youth’s status, rights, privileges or readiness to return to the community.
The sole measure of whether a youth requires continued residential treatment should be whether or not he or she could safely live in his or her community. Measuring readiness to return home - as well as how much power youth have over their own lives and those of their peers - according to compliance with the program shifts the focus from actual recovery to merely learning to adapt to an institutional environment.
Residential programs should never deprive youth of basic human rights like food, shelter, sleep, bathroom access, health care, social interaction, and freedom of movement.
The physical and psychological harms that result from denying youth, especially youth with existing challenges, things necessary for their survival and well being cannot be justified. When a residential program deprives youth of these basic things, it is no longer providing treatment and is only providing punishment.
We believe that the use of forced exercise or physical labor as a punishment or as a substitute for mental health treatment constitutes abuse.
While proper amounts and types of exercise and work can be physically and mentally beneficial, they are not panaceas for serious mental health problems. Furthermore, practices that amount to unpaid, forced child labor are not an acceptable form of discipline, and should never be used as or substituted for treatment.
Residential treatment programs should never use or permit physical, verbal and sexual abuse, including humiliation, as forms of treatment or discipline.
Methods of treatment or punishment such as attack therapy, forced physical confrontations between students, forced acting out of sexualized behavior, being forced to wear demeaning signs or clothing, banning verbal communication, forced labor and forced exercise are traumatic, degrading, humiliating, and otherwise detrimental to mental health.
Mechanical, chemical and face-down physical restraints, as well as isolation and seclusion, are never appropriate forms of treatment or discipline.
It is a well-documented fact that restraint and seclusion frequently result in long-lasting psychological trauma, serious physical injury, and even death. These are never beneficial forms of treatment, and, if anything, their use as a form of behavior management denotes failure by the treatment providers. Residential treatment programs should only allow properly trained staff to perform physical restraints and only as a last resort to prevent imminent self-harm or physical harm to others. Restraint should never be used as a form of punishment. All residential program staff should receive training on careful and non-punitive physical restraint, which should include how to prevent it from being used altogether.
Residential treatment programs should be rigorously inspected and licensed by the government in order to protect youth and ensure they are receiving adequate treatment and a quality education.
Loose and unclear laws governing residential programs have allowed them to use practices that would never be considered acceptable in schools, psychiatric hospitals, or even prisons. Strong licensing standards on issues including mental health treatment, education and youth rights in residential programs would help to ensure that such practices had no place in any setting, private or public. Unannounced visits conducted by independent bodies, including unmonitored interviews with current students of the investigators’ choice and the opportunity to observe the conditions and practices of the program unaltered, are essential to uncovering and ultimately deterring abusive conduct at residential programs.
Residential treatment program trade organizations and accrediting bodies have an obligation to ensure that member programs obey the law and adhere to ethical principles of residential care.
Trade organization membership and accreditation is used by programs and perceived by parents as a mark of prestige and quality. The entities that bestow them should therefore either enforce the principles and standards that they advertise themselves as having, or should prohibit programs from using their name to mean that these principles and standards are observed.
Our Points of Advocacy: Examining the Issues of Concern Surrounding Residential Programs for Youth - July 2011 report on our survey findings in support of these advocacy positions may be downloaded here.
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