Section 1 Short title
This Act may be cited as the “Stop Child Abuse in Residential Programs for Teens Act of 2016”.
Stop Child Abuse in Residential Programs for Teens Act of 2016
A BILL
To require certain standards and enforcement provisions to prevent child abuse and neglect in residential programs, and for other purposes.
Sec. 2 Definitions
In this Act:
Child— The term child means an individual who has not attained the age of 18.
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).
Covered program—
In general— The term covered program means a program (including the portion of a program at each affiliated facility) that is operated by a public or private entity and 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—
a program with a wilderness or outdoor experience, expedition, or intervention;
a boot camp experience or other experience designed to simulate characteristics of basic military training or correctional regimes;
a therapeutic boarding school; or
a behavioral modification program.
Exclusion— The term covered program does not include—
a hospital licensed by the State; or
a foster family home or foster group 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 or foster group home.
Licensed clinician— The term licensed clinician means such a clinician, as defined by State law.
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)).
Mental health practitioner— The term mental health practitioner means such a practitioner, as defined by State law.
Physical restraint— The term “physical restraint” means a personal restriction on an individual that immobilizes or reduces the ability of the individual to move freely the individual's arms, legs, torso, or head, 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))).
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).
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.
Secretary— The term Secretary means the Secretary of Health and Human Services.
Staff member— The term staff member includes a volunteer and an applicant to be a staff member.
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).
Sec. 3 Standards and enforcement
Minimum standards—
In general— Not later than 180 days after the date of enactment of this Act, the Secretary shall require each covered program in a State, in order to provide for the basic health and safety of children at such a program and in order for the State to remain eligible as described in section 114(b) of the Child Abuse Prevention and Treatment Act (as added by section 7 of this Act), to meet the following minimum standards:
Prohibition on child abuse and neglect— Child abuse and neglect shall be prohibited.
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.
Prohibition on physical or mental abuse— Acts of physical or mental abuse designed to humiliate or degrade a child, or undermine a child’s self-respect, shall be prohibited.
Limitation on restraints and seclusion—
Certain restraints and seclusion— The use of seclusion, mechanical restraints, and physical restraints that impair breathing or communication shall be prohibited.
Physical restraints in emergencies— 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.
Access to communications— Each child at such a program—
shall have reasonable access to a telephone and means for electronic and written communications, and be informed of the child's right to such access, to maintain frequent contact with parents or guardians, including making, sending, and receiving scheduled and unscheduled calls, unrestricted written correspondence, and electronic communications, with as much privacy as possible; and
shall have access to current and appropriate national, State, and local hotline numbers for reporting child abuse and neglect.
Staff-to-Child ratio— The program shall have appropriate ratios of medical, clinical, and line staff members to children, as determined by the Secretary, to ensure child safety and the efficacy of treatment.
Senior management— Not less than one full-time licensed clinician or mental health practitioner shall be employed as a senior manager of the program.
Licensed clinician— Not less than one licensed clinician shall be present at all times for the program. The licensed clinician may be on call unless having such a clinician physically present is necessary to ensure safety and clinically appropriate care.
Program Policies— The program shall have policies to require—
parents or guardians of a child attending such a program to notify, in writing, such program of any medication the child is taking;
a full-time licensed clinician—
to obtain consent from the parents or guardians of the child to make any change to the child’s medical treatment, except in the case of an emergency;
in the case of an emergency, to notify the parents or guardians within 24 hours after any change to the child’s medical treatment, to describe the change and the reason for such change; and
to notify the parents or guardians within 24 hours after any change to the child’s prescribed medication or any occurrence of a missed dose of prescribed medication, to describe the change or occurrence and the reason for such change or occurrence; and
the covered program to notify parents or guardians of a child of any change to the program's treating provider team within 48 hours after the change.
Notification procedures— The program shall have procedures for notifying immediately, to the maximum extent practicable, but not later than 6 hours after the occurrence involved, parents or guardians of a child at such a program and the appropriate protection and advocacy system of any occurrence of an—
onsite investigation of a report of child abuse and neglect;
violation of a standard described in any of subparagraphs (A) through (D); and
violation of a State licensing requirement.
Staff member disclosures— Full disclosure, in writing, of staff member qualifications and their roles and responsibilities at such a program, including any medical, emergency response, and mental health training received by such staff members, shall be given to parents or guardians of children at such a program.
Disclosure of right of action— Full disclosure, in writing, of the private right of action established under subsection (b)(3), shall be given to parents or guardians of children at such a program.
Child abuse and neglect response training— Each staff member at such a program shall be required, as a condition of employment, to become trained in the acts and omissions that constitute child abuse and neglect, State law relating to mandated reporters, and procedures for reporting child abuse and neglect, in the State in which the program is located, and information on current and appropriate national, State, and local hotline numbers for reporting child abuse and neglect.
Medical response training— Each staff member 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 crises, including warning signs of suicide and worsening symptoms of mental illness.
Criminal history check—
Requirement— Each staff member for such a program 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 criminal history check reveals a conviction for a violent felony that, by virtue of its nature, proximity in time, or other factor, is likely to directly increase a child’s risk of harm in the program as determined by the Secretary.
Appeals— The covered program shall provide an independent process through which a staff member who is determined to be ineligible for employment as a result of a criminal history check under clause (i) shall have the right—
to obtain a copy of the report resulting from the check; and
within 10 business days after receipt of the report, to appeal, in order to dispute the accuracy of the information obtained through the check.
Informational materials— Full disclosure, in writing, in promotional and informational materials produced by a covered program, shall be given to parents or guardians of children at such a program, which shall include disclosure of—
the name and location of the program, including the names of any owners and operators;
the number and percentage of children who terminated participation prior to completion of that program in the past 5 years, including children discharged against medical advice;
any past violations of the standards required under this paragraph by the program and any penalties levied against the program as a result of such violations;
its current status (current as of the date the materials were given to the parents or guardians) with respect to State licensing requirements;
the number of deaths that occurred in that program during the most recent 10-year period and the cause of each death;
the names of owners and operators of the program that have violated State licensing requirements;
information on evidence-based or promising practices employed as treatment in the covered program, and information to aid parents and guardians in finding community-based treatment resources; and
any national, State, and local telephone hotline numbers that the program made available to children and staff members to report complaints of child abuse and neglect, or a violation of this paragraph, by the program.
Treatment and discharge plans— The entity carrying out the covered program shall work with the parents or guardians of a child of the program and the child’s community-based 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.
Prohibition on discrimination— The entity carrying out the program shall 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 in the provision of any program or activity, in whole or in part, covered by this Act.
Evidence-based practices— The entity carrying out the program shall ensure that the program employs safe, evidence-based practices, and that children are protected against harmful or fraudulent practices, including use of isolation or of mechanical restraints or physical restraints.
Other standards— The program shall meet any other standard the Secretary determines appropriate to provide for the basic health and safety of children at a covered program.
Regulations—
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).
Public comment— The Secretary shall, for a 90-day period beginning on the date of the promulgation of interim regulations under subparagraph (A), solicit and accept public comment concerning such regulations. Such public comment shall be submitted in written form.
Final regulations— Not later than 90 days after the conclusion of the 90-day period referred to in subparagraph (B), the Secretary shall promulgate and enforce final regulations to carry out paragraph (1).
Monitoring and enforcement—
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, that are received by the Secretary from the appropriate State, in accordance with paragraph (4) or (5) of section 114(b) of the Child Abuse Prevention and Treatment Act, as added by section 7 of this Act. Such review process shall—
include an investigation to determine if a violation of the standards required under subsection (a)(1) has occurred; and
include consultation and collaboration with relevant Federal and State agencies.
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:
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.
Deposit to Treasury— All penalties collected under this paragraph shall be deposited in the appropriate account of the Treasury of the United States.
Private right of action— Any person who suffers injury by reason of a violation of subsection (a)(1) may bring a civil action against the alleged violator to obtain appropriate compensatory damages and injunctive relief or other equitable relief.
Action— The Secretary shall establish a process to assist States in the oversight and enforcement of this Act, which shall include—
assisting States in implementing oversight mechanisms to ensure compliance of covered programs in the States with the standards required under subsection (a)(1);
maintaining oversight of covered programs in a State, in a case in which a State has not established, within 3 years after the date of the enactment of this Act, mechanisms sufficient to ensure compliance of such programs with the standards required under subsection (a)(1); and
encouraging the use by States of national, State, or local hotline numbers for reporting child abuse and neglect and any other resources the Secretary determines to be appropriate.
Sec. 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 section 3(b)(2), 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, bring an action in any court of competent jurisdiction seeking equitable relief or any other relief authorized by this Act for such violation.
Sec. 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 the Workforce 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 as required under this Act.
Sec. 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 2017 through 2021 to carry out this Act (excluding the amendment made by section 7 of this Act).
Sec. 7 Additional eligibility requirements for grants to States to prevent child abuse and neglect at residential programs
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—The term covered program has the meaning given the term in section 2 of the Stop Child Abuse in Residential Programs for Teens Act of 2016.
“(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 2016;
“(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 the jurisdiction of the State, including any violations by each program or any information that the Secretary determines to be necessary for enforcement of this Act.
“(c) Oversight—If, within the 3-year period beginning on the date of enactment of this section, the Secretary determines that the State is not satisfying the requirements of this subsection, the Secretary shall provide assistance to the State to satisfy such requirements or withhold funding until such policies and procedures are established.”
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 2017 through 2021.”.
Conforming amendments—
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 (as such term is defined in section 114), 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)”.
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).”
Annual state data reports— Section 106(d) of the Child Abuse Prevention and Treatment Act (42 U.S.C. 5106a(d)) is amended—
in paragraph (1), by inserting before the period at the end the following: “(including reports of child abuse and neglect occurring at covered programs (as such term is defined in section 114), 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)”; and
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”.
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: