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H.R. 3060 (114th): Stop Child Abuse in Residential Programs for Teens Act of 2015


The text of the bill below is as of Jul 14, 2015 (Introduced). The bill was not enacted into law.


I

114th CONGRESS

1st Session

H. R. 3060

IN THE HOUSE OF REPRESENTATIVES

July 14, 2015

(for himself, Ms. Ros-Lehtinen, Mrs. Napolitano, Ms. Lee, Mr. Takano, Mr. Grijalva, Ms. Moore, Mr. Tonko, Mr. Hinojosa, Mr. DeSaulnier, Mr. Quigley, Mr. McDermott, and Mr. Ted Lieu of California) introduced the following bill; which was referred to the Committee on Education and the Workforce

A BILL

To require certain standards and enforcement provisions to prevent child abuse and neglect in residential programs, and for other purposes.

1.

Short title

This Act may be cited as the Stop Child Abuse in Residential Programs for Teens Act of 2015.

2.

Definitions

In this Act:

(1)

Secretary

The term Secretary means the Secretary 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 3 of the Child Abuse Prevention and Treatment Act (42 U.S.C. 5101 note).

(4)

Covered program

(A)

In general

The term covered program means each facility 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, purports to provide treatment or modify behaviors in 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.

(B)

Exclusion

The term covered program does not include—

(i)

a hospital licensed by the State; or

(ii)

a foster family 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.

(5)

Mechanical restraint

The term mechanical restraint has the meaning given the term in section 595(d)(1) of the Public Health Service Act (42 U.S.C. 290jj(d)(1)).

(6)

Physical restraint

The term physical restraint means a personal restriction that immobilizes or reduces the ability of an individual to move the individual's arms, legs, torso, or head freely, except that such term does not include voluntary physical escort (as such term is defined in section 595(d)(2) of the Public Health Service Act (42 U.S.C. 290jj(d)(2))).

(7)

Protection and Advocacy System

The term protection and advocacy system means a system established by a State under section 143 of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15043).

(8)

Seclusion

The term seclusion means the involuntary confinement of a child alone in a room or area from which the child is physically prevented from leaving.

(9)

State

The term State has the meaning given such term in section 3 of the Child Abuse Prevention and Treatment Act (42 U.S.C. 5101 note).

3.

Standards and enforcement

(a)

Minimum standards

(1)

In general

Not later than 180 days after the date of enactment of this Act, the Secretary shall require each covered program, in order to provide for the basic health and safety of children at such a program, to meet the following minimum standards:

(A)

Prohibition on child abuse and neglect

Child abuse and neglect shall be prohibited.

(B)

Prohibition on certain disciplinary techniques

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)

Prohibition on physical or mental abuse

Acts of physical or mental abuse designed to humiliate, degrade, or undermine a child’s self-respect shall be prohibited.

(D)

Limitation on restraints and seclusion

(i)

The use of seclusion, mechanical restraints, and physical restraints that impair breathing or communication is prohibited.

(ii)

Physical restraints other than the restraints described in clause (i) may be used (if not contraindicated) only in emergency situations in which a child presents an imminent danger of harm to self or others and only after less restrictive interventions have been determined to be ineffective.

(E)

Access to communications

Each child at such a program shall have reasonable access to a telephone, and be informed of their right to such access to maintain frequent contact, including making and receiving scheduled and unscheduled calls, unrestricted written correspondence, and electronic communications with as much privacy as possible, and shall have access to existing and appropriate national, State, and local child abuse reporting hotline numbers.

(F)

Staff-to-Child ratio

An appropriate ratio of medical, clinical, and line staff to children, as determined by the Secretary, to ensure child safety and the efficacy of treatment.

(G)

Senior management

Not less than one full-time licensed clinician or mental health practitioner, as defined by State law, shall be employed as a senior manager of such a program.

(H)

Licensed clinician

Not less than one licensed clinician, as defined by State law, shall be present at all times at such a program.

(I)

Program Policies

Policies to require—

(i)

parents or legal guardians of a child attending such a program to notify, in writing, such program of any medication the child is taking;

(ii)

a licensed full-time clinician—

(I)

to obtain consent from the parents or legal guardians of the child to make any change to the child’s medical treatment, except in the case of an emergency;

(II)

in the case of an emergency, to notify the parents or guardians within 24 hours after any change to the child’s medical treatment and the reason for such change; and

(III)

to notify the parents or guardians within 24 hours after any changes to the child’s prescribed medication or any missed dosage of prescribed medication, and the reason for such change or occurrence; and

(iii)

the covered program to notify parents or legal guardians of a child of any changes to their treating provider team within 48 hours.

(J)

Notification procedures

Procedures for notifying immediately, to the maximum extent practicable, but not later than within 6 hours, parents or legal guardians with children at such a program and the appropriate protection and advocacy system 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 requirements.

(K)

Staff disclosures

Full disclosure, in writing, of staff qualifications and their roles and responsibilities at such a program, including any medical, emergency response, and mental health training received by such staff, shall be given to parents or legal guardians of children at such a program.

(L)

Disclosure of right of action

Full disclosure, in writing, of the private right of action established under subsection (b)(3) of this Act, shall be given to parents or legal guardians of children at such a program.

(M)

Child abuse response training

Each staff member, including volunteers, at such a program shall be required, as a condition of employment, to become trained in what constitutes child abuse and neglect, State law relating to mandated reporters, and procedures for reporting child abuse and neglect in the State in which such a program is located, and information on existing and appropriate national, State, and local child abuse reporting hotline numbers.

(N)

Medical response training

Each staff member, including volunteers, at such a program shall be required, as a condition of employment, to become trained in recognizing the signs, symptoms, and appropriate responses associated with common medical emergencies and mental health crisis, including suicide and worsening symptoms of mental illness.

(O)

Criminal history check

(i)

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 (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 violent felony conviction that, by virtue of its nature, proximity in time, or other factor, presents a direct increase to a child’s risk of harm in the program as determined by the Secretary.

(ii)

The covered program shall provide an independent process by which an applicant or staff member who is determined to be ineligible as a result of a criminal history check under clause (i) shall have the right—

(I)

to obtain a copy of the report resulting from the check; and

(II)

within 10 business days after receipt of the report, to appeal, in order to dispute the accuracy of the information obtained through the check.

(P)

Informational materials

Full disclosure, in writing on promotional and informational materials produced by such a program, shall be given to parents or legal guardians of children at such a program, which shall include—

(i)

the name and location of a covered program, including the names of any owners and operators;

(ii)

the numbers and percentages of children who terminated participation prior to completion of that program in the past 5 years, including discharges against medical advice;

(iii)

any past violations of the standards under section 3(a)(1) and any penalties levied against the program as a result of such violations;

(iv)

its most updated status with State licensing requirements;

(v)

the number of deaths that occurred in that program for up to a period of 10 years, including the cause of each death;

(vi)

the names of owners and operators that have violated State licensing requirements;

(vii)

information on evidence-based or promising practices employed as treatment of a covered program, including information to aid parents in finding community-based resources; and

(viii)

any national, State, and local telephone hotline numbers made available to children and staff to report complaints of abuse and violations.

(Q)

Treatment and discharge plans

Covered programs shall work with the parent or legal guardian and the child’s community providers in the development, modification, and implementation of treatment and discharge plans, including a plan for community reintegration and linkage to community-based providers and supports.

(R)

Prohibition on discrimination

Ensure that no person shall, on the basis of actual or perceived race, color, religion, national origin, sex, gender identity, sexual orientation, or disability, be subjected to discrimination under any program or activity, in whole or in part, covered by this Act.

(S)

Evidence-based practices

Ensure that covered programs employ safe, evidence-based practices, and that children are protected against harmful or fraudulent practices including isolation and restraints.

(T)

Other standards

Any other standards the 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 enactment of this Act, the Secretary shall promulgate and enforce interim regulations to carry out paragraph (1).

(B)

Public comment

The 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 Secretary shall promulgate and enforce final regulations to carry out paragraph (1).

(b)

Monitoring and enforcement

(1)

Review process

Not later than 180 days after the date of enactment of this Act, the Secretary shall implement a review process for overseeing, investigating, and evaluating reports of child abuse and neglect at covered programs received by the Secretary from the appropriate State, in accordance with section 114(b)(3) of the Child Abuse Prevention and Treatment Act, as added by section 7 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; and

(B)

include consultation and collaboration with relevant Federal and State agencies.

(2)

Civil penalties

Not later than 180 days after the date of enactment of this Act, the 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)

Amount

Any owner or operator of a covered program at which the 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)

Deposit to Treasury

All penalties collected under this subsection shall be deposited in the appropriate account of the Treasury of the United States.

(3)

Private right of action

Any person who suffers injury by reason of a violation of this section may maintain a civil action against the violator to obtain appropriate compensatory damages and injunctive relief or other equitable relief.

(c)

Action

The Secretary shall establish a process to assist States in the oversight and enforcement of this Act, which shall include—

(1)

assisting States in implementing oversight mechanisms to ensure compliance with the standards under subsection (a)(1);

(2)

maintaining oversight of covered programs in cases in which a State has not established mechanisms sufficient to ensure compliance with the standards under subsection (a)(1) within 3 years after the date of the enactment of this Act; and

(3)

encouraging the use of local, State, or national hotline numbers for the reporting of child abuse and any other resources the Secretary determines to be appropriate.

4.

Enforcement by the Attorney General

If the Secretary determines that a violation of section (3)(a)(1) has not been remedied through the enforcement process described in subsection (b)(2) of such section, the 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.

5.

Report

Not later than 1 year after the date of 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 Secretary and the Attorney General, as authorized and mandated under this Act.

6.

Authorization of appropriations

There is authorized to be appropriated to the Secretary of Health and Human Services $5,000,000 for each of fiscal years 2016 through 2020 to carry out this Act (excluding the amendment made by section 7 of this Act).

7.

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:

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 facility 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, purports to provide treatment or modify behaviors in 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.

(B)

Exclusion

The term covered program does not include—

(i)

a hospital licensed by the State; or

(ii)

a foster family 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.

(b)

Eligibility requirements

To be eligible to receive a grant under section 106, a State shall—

(1)

not later than 3 years after the date of enactment of this section, develop policies and procedures to prevent child abuse and neglect at covered programs operating in such State, including 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 2015;

(2)

provide a private right of action under State law for any person who suffers injury by reason of a violation of the standards required under paragraph (1);

(3)

develop policies and procedures to enforce compliance with the requirements developed in accordance with paragraph (1), including—

(A)

establishing and monitoring health and safety licensing requirements applicable to and necessary for the operation of each location of such covered programs in the State; and

(B)

conducting unannounced site inspections at each location of a covered program;

(4)

develop policies and procedures for timely notification to the Secretary and the appropriate protection and advocacy system 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; and

(5)

annually submit to the Secretary a report that includes all covered programs within their jurisdiction, including any violations by each program or any information deemed by the Secretary to be necessary for enforcement of this Act.

(c)

Oversight

if the Secretary determines that the State is not satisfying the requirements of this subsection within 3 years of enactment of this Act, the Secretary shall provide assistance to the State to satisfy such requirements or withhold funding until such policies and procedures are established.

.

(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 striking $120,000,000 and all that follows through the period and inserting $200,000,000 for each of fiscal years 2016 through 2020..

(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:

(D)

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.

.