Under the Radar: The Child Abuse Bill Swap

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Below is a guest blog entry by MoJo author Maia Szalavitz:

Congressman George Miller recently introduced strong legislation to fight abuse in teen boot camps and other “tough love” residential facilities. But the version that passed the House Education and Labor Committee in May is not the version that will be voted on by the House Tuesday.

A new “bipartisan” draft of HR 5876, the “Stop Child Abuse in Residential Programs for Teens Act of 2008,” has been submitted instead. And the provision most likely to hold these programs accountable and reduce abuse—a “private right of action” which would allow parents and children to sue the facilities in federal court and receive reimbursement for attorneys’ fees—has been removed. Why?

Despite thousands of reports of abuse in such programs—including torturous tactics like food deprivation, sleep deprivation, vicious and extended emotional attacks, sexual humiliation and punitive use of isolation and restraint—the programs have remained unregulated and have suffered few legal consequences.

“There have been few lawsuits in the past and this bill won’t help future lawsuits and anyone who thinks otherwise doesn’t understand the nature of the problem,” says Phil Elberg, the only attorney who has won victories for children who were abused but did not die in these programs. In a profile I wrote of him for Mother Jones recently, Elberg said that the private right of action could allow him to devote himself full-time to fighting these abuses, but he says now that the new version won’t even help him with his current cases.

Another problematic change in the legislation is the inclusion of child psychiatric hospitals and public residential programs under its rubric. This will increase its scope and thus reduce the chances that any particular violator of the regulations will be sanctioned. It will also legitimize the programs, by including them in the same category as psychiatric treatment, which can only use drugs that meet FDA standards for safety and effectiveness—while there is no requirement for these programs to prove they are safe and effective before they are sold to parents.

“I fear that if this bill is continually diluted we’ll see a farce of a system of accountability that will only legitimize programs without providing real protection,” says Kathryn Whitehead, a program survivor who testified at the hearings related to the bill, and heads the Community Alliance For the Ethical Treatment of Youth, “We will inevitably see the continual growth of harmful programs – many of which will demonstrate a lack respect for collaborative care between youth and provider and further obstruct the movement away from dehumanizing care and institutionalization.”

Fortunately, the bill does still include provisions for national standards, a federal ban on the use of “acts of physical or mental abuse designed to humiliate, degrade, or undermine a child’s self-respect,” and on the use of punitive restraint and isolation.

“Realistically, my hope is that the Department of Health and Human Services will set standards at least on par with [those] set by Title IV-E of the Social Security Act, like the right to have money, belongings, phone calls, and mail,” says Whitehead, adding that the standards must provide a way to inform teens of their rights “to access to a phone to contact an advocate. Youth need to know that abuse is not therapy.”

It’s frightening that the new version of the bill now incorporates two of the three demands made by the National Association of Therapeutic Schools and Programs (NATSAP), which represents the industry. When “tough love” first began to appear in residential programs for youth and adults with addictions, state regulators passively let abuses continue and for decades failed to shutter even programs that used practices like keeping patients awake for 72 hours and gagging teens with Kotex.

“What I fear from passage of a watered down law is that everybody concerned would file it under done and done, congratulate themselves on a fine job and move on to other concerns,” says Cynthia Clark Harvey, who testified at the hearings about the death by medical neglect of her daughter Erica in the Catherine Freer wilderness program, “The industry took at least twenty years to metastasize into its current form. It’s going to take a strong effort, delivered over a period of years, to radically transform this abysmal mess.”

If the standards are set high and the regulators actually punish violators, the new law could make a difference—and at the very least, it will provide some information to parents about the risks these programs carry and the fact that abusive practices are not therapeutic. The legislation is not expected to be introduced in the Senate until after the election. There’s no reason to expect that this version won’t pass the House—but only time will tell if the compromise version will actually reduce abusive treatment.

—Maia Szalavitz

Maia Szalavitz is the author of “Help At Any Cost: How the Troubled-Teen Industry Cons Parents and Hurts Kids,” and Senior Fellow at stats.org.

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