After two years of wrangling over language involving the use of restraints and seclusion in facilities for children and youth, the Children's Health Act of 2000 has been signed into law.
The "Rights of Residents" section of the new law includes a requirement that restraints and seclusion in non-medical, community-based facilities for children and youth will only be imposed in emergency circumstances to ensure the physical safety of the residents and others, and requires that those youth workers imposing restraints and seclusions are skilled and knowledgeable in behavior management.
"We support [the final] language ... in terms of a separate section for community-based non-medical programs," said Lloyd Bullard of the Child Welfare League of America's Residential Group Care program. The 1,100-member CWLA opposed the original language, which, Bullard said, "lumped us in with health care providers." Earlier versions of the bill required that both medical and non-medical residential facilities for children and youth get approval from physicians before using any form of seclusion or restraint to control young people who are being disruptive.
CWLA opposed those regulations on the grounds that many of its group facility member organizations need to control residents for their safety and the safety of others, and do not have immediate access to physicians.
But CWLA and its allies may yet be pinned to the mat. Not only is it up to the states to promulgate restrictions (in accordance with the law), but the U.S. Department of Health and Human Services (HHS) now has six months to develop licensing rules and monitoring requirements concerning behavioral management practices. This might make hard-won language changes mute.
Left up to HHS are the definitions of "emergency circumstances," "non-medical, community-based facility for children and youth" and state-recognized bodies to train and certify staff .
"The Children's Health Act itself is livable, but how it gets enforced is the question," says Martha Holden, director of the Residential Child Care Project at Cornell University's Family Life Development Center, which has been researching institutional abuse since 1979.
Ideally, says Holden, legislation and enforcement involves setting standards without banning practices. "There should be some flexibility in there." In addition to conducting research, the Residential Child Care Project helps facilities design and implement behavior control systems.
Skeptics of the original language claimed not only that it was overly restrictive, but also that it proposed a quick fix to a complex problem.
Floyd Alwon, director of the Walker Trieschman Center in Quincy, Mass., the professional development division of CWLA, paraphrased a saying: "This is a complex problem, and for all complex problems there are simple solutions that are wrong."
While supporting the law's emphasis on training, Alwon is skeptical about the legislation's impact. The cost of training, says Alwon, including the cost of paying a substitute for an employee while he or she is being trained, is "clearly more than most agencies can handle."
"The huge piece here," says Bullard, is the training requirement, which will financially affect facilities. But he believes they will have no choice but to comply.
In the three years that Holden studied - 1996 through 1998 - there were 18 youth fatalities nationwide related to behavior control. Some states saw more that one fatality, but Holden sees no connection between fatalities or injuries and state training laws. Accidents, she says, were caused by a combination of factors. Some common themes that Holden saw included overuse of restraining techniques (often because they were used to enforce the program rules rather than strictly for safety purposes); an absence of monitoring and documentation; and understaffing, which leads to one-on-one restraining and a lack of ongoing supervision, coaching or training.
Skeptics claim that restraints and seclusion legislation, first introduced by Sen. Chris Dodd (D-Conn.) after a March 1998 Hartford Courant investigative series focused on the death of an 11-year-old boy in a Connecticut psychiatric hospital, does not address this assortment of factors.
Supporting the original bills and stronger restraints and seclusion language were the Advocates Coalition for the Appropriate Use of Restraints, a group of several advocacy organizations, including the Bazelon Center for Mental Health Law, the National Association for the Mentally Ill and the National Mental Health Association. The coalition negotiated with CWLA on changes in the law.
"We're thrilled this language passed," said Laurel Steine, director of federal relations at the Bazelon Center. Asked how she could feel so positive about something she repeatedly describes as a "compromise," she explained, "We wanted something done this year ... We feel strongly that this compromise will serve our interest and serve their interest."
Unlike those at CWLA, Steine is glad the legislation represents "a floor and not a ceiling," meaning that states are free to add further regulations. Also, the Advocates Coalition will lobby HHS to get the most out of their compromise.
Contact: Floyd Alwon (617) 770-2877 or firstname.lastname@example.org; Laurel Steine (202) 467-5730 or www.bazelon.org.
- Amy Bracken