S. 2054 — Introduced in Senate

II 113th CONGRESS 2d Session S. 2054 IN THE SENATE OF THE UNITED STATES February 27, 2014Mr. Murphy (for himself and Mr. Harkin) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 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 2014. 2. Definitions In this Act: (1) Assistant Secretary The term Assistant Secretary means the Assistant Secretary for Children and Families of the Department 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 location 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— (i) provides 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; and (ii) operates with a focus on serving children with— (I) emotional, behavioral, or mental health problems or disorders; or (II) problems with alcohol or substance abuse. (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) Protection and advocacy system The term protection and advocacy system means a protection and advocacy system established under section 143 of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15043). (6) 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 Assistant Secretary for Children and Families of the Department of Health and Human Services 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) Child abuse and neglect shall be prohibited. (B) 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) The protection and promotion of the right of each child at such a program to be free from physical restraints and mechanical restraints and seclusion (as such terms are defined in section 595 of the Public Health Service Act (42 U.S.C. 290jj)), and restraints that impair breathing, to the same extent and in the same manner as a non-medical, community-based facility for children and youth is required to protect and promote the right of its residents to be free from such restraints and seclusion under such section 595, including the prohibitions and limitations described in subsection (b)(3) of such section. (D) Acts of physical or mental abuse designed to humiliate, degrade, or undermine a child’s self-respect shall be prohibited. (E) Each child at such a program shall have reasonable access to a telephone, and be informed of their right to such access, for making and receiving phone calls with as much privacy as possible, and shall have access to the appropriate State or local child abuse reporting hotline number, and the national hotline number referred to in subsection (c)(2). (F) Each staff member, including volunteers, at such a program shall be required, as a condition of employment, to become familiar with what constitutes child abuse and neglect, as defined by State law. (G) Each staff member, including volunteers, at such a program shall be required, as a condition of employment, to become familiar with the requirements, including with State law relating to mandated reporters, and procedures for reporting child abuse and neglect in the State in which such a program is located. (H) Full disclosure, in writing, of staff qualifications and their roles and responsibilities at such program, including medical, emergency response, and mental health training, shall be given to parents or legal guardians of children at such a program, including providing information on any staff changes, including changes to any staff member’s qualifications, roles, or responsibilities, not later than 10 days after such changes occur. (I) Each staff member at a covered program described in subclause (I) or (II) of section 2(4)(A)(i) shall be required, as a condition of employment, to be familiar with the signs, symptoms, and appropriate responses associated with heatstroke, dehydration, hypothermia, and common medical emergencies including burns, drowning, and insect and animal bites. (J) 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 felony conviction for child abuse or neglect, spousal abuse, a crime against children (including child pornography), or a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery. (K) 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 subparagraph (J) 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. (L) Each staff member at a covered program shall be required to understand the policies and procedures for the provision of emergency medical care, including policies for staff protocols for implementing emergency responses. (M) All promotional and informational materials produced by such a program shall include a hyperlink to or the URL address of the website created by the Assistant Secretary pursuant to subsection (c)(1)(A). (N) 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) such program— (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; and (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) such program to notify the parents or guardians within 24 hours after any missed dosage of prescribed medication. (O) Procedures for notifying immediately, to the maximum extent practicable, but not later than within 48 hours, parents or legal guardians with children at such a program 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 standards developed pursuant to section 114(b)(1) of the Child Abuse Prevention and Treatment Act, as added by section 7 of this Act. (P) Other standards the Assistant 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 Assistant Secretary shall promulgate and enforce interim regulations to carry out paragraph (1). (B) Public comment The Assistant 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 Assistant Secretary shall promulgate and enforce final regulations to carry out paragraph (1). (b) Monitoring and enforcement (1) On-going review process Not later than 180 days after the date of enactment of this Act, the Assistant Secretary shall implement an on-going review process for investigating and evaluating reports of child abuse and neglect at covered programs received by the Assistant 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; (B) include an assessment of the State’s performance with respect to appropriateness of response to and investigation of reports of child abuse and neglect at covered programs and appropriateness of legal action against responsible parties in such cases; (C) be completed not later than 60 days after receipt by the Assistant Secretary of such a report; (D) not interfere with an investigation by the State or a subdivision thereof; and (E) be implemented in each State in which a covered program operates until such time as each such State has satisfied the requirements under section 114(c) of the Child Abuse Prevention and Treatment Act, as added by section 7 of this Act, as determined by the Assistant Secretary, or 2 years has elapsed from the date that such review process is implemented, whichever is later. (2) Civil penalties Not later than 180 days after the date of enactment of this Act, the Assistant 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) Any owner or operator of a covered program at which the Assistant 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) All penalties collected under this subsection shall be deposited in the appropriate account of the Treasury of the United States. (c) Dissemination of information The Assistant Secretary shall establish, maintain, and disseminate information about the following: (1) Websites made available to the public that contain, at a minimum, the following: (A) The name and each location of each covered program, and the name of each owner and operator of each such program, operating in each State, and information regarding— (i) each such program’s history of violations of— (I) regulations promulgated pursuant to subsection (a); and (II) section 114(b)(1) of the Child Abuse Prevention and Treatment Act, as added by section 7 of this Act; (ii) each such program’s current status with the State licensing requirements under section 114(b)(1) of the Child Abuse Prevention and Treatment Act, as added by section 7 of this Act; (iii) any deaths that occurred to a child while under the care of such a program, including any such deaths that occurred in the 5-year period immediately preceding the date of enactment of this Act, and including the cause of each such death; (iv) each owner or operator of a covered program that was found to be in violation of the standards required under subsection (a)(1), or a violation of the licensing standards developed pursuant to section 114(b)(1) of the Child Abuse Prevention and Treatment Act, as added by section 7 of this Act, and who subsequently owns or operates another covered program; and (v) any penalties levied under subsection (b)(2) and any other penalties levied by the State, against each such program. (B) Information on best practices for helping adolescents with mental health disorders, conditions, behavioral challenges, or alcohol or substance abuse, including information to help families access effective resources in their communities. (2) A national toll-free telephone hotline to receive complaints of child abuse and neglect at covered programs and violations of the standards required under subsection (a)(1). (d) Action The Assistant Secretary shall establish a process to— (1) ensure complaints of child abuse and neglect received by the hotline established pursuant to subsection (c)(2) are promptly reviewed by persons with expertise in evaluating such types of complaints; (2) immediately notify the State, appropriate local law enforcement, and the appropriate protection and advocacy system of any credible complaint of child abuse and neglect at a covered program received by the hotline; (3) investigate any such credible complaint not later than 30 days after receiving such complaint to determine if a violation of the standards required under subsection (a)(1) has occurred; and (4) ensure the collaboration and cooperation of the hotline established pursuant to subsection (c)(2) with other appropriate National, State, and regional hotlines, and, as appropriate and practicable, with other hotlines that might receive calls about child abuse and neglect at covered programs. 4. Enforcement by the Attorney General If the Assistant Secretary determines that a violation of subsection (a)(1) of section 3 has not been remedied through the enforcement process described in subsection (b)(2) of such section, the Assistant 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 Assistant Secretary and the Attorney General under this Act, including— (1) a summary of findings from on-going reviews conducted by the Assistant Secretary pursuant to section 3(b)(1), including a description of the number and types of covered programs investigated by the Assistant Secretary pursuant to such section; (2) a description of types of violations of health and safety standards found by the Assistant Secretary and any penalties assessed; (3) a summary of State progress in meeting the requirements of this Act, including the requirements under section 114 of the Child Abuse Prevention and Treatment Act, as added by section 7 of this Act; (4) a summary of the Secretary’s oversight activities and findings conducted pursuant to subsection (d) of such section 114; and (5) a description of the activities undertaken by the national toll-free telephone hotline established pursuant to section 3(c)(2). 6. Authorization of appropriations There is authorized to be appropriated to the Secretary of Health and Human Services $15,000,000 for each of fiscal years 2015 through 2019 to carry out this Act (excluding the amendment made by section 7 of this Act and section 8 of this Act). The Secretary of Health and Human Services shall reserve a portion of the appropriated funds and make the portion available to the Comptroller General of the United States to carry out section 9. 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 location 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— (i) provides 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; and (ii) operates with a focus on serving children with— (I) emotional, behavioral, or mental health problems or disorders; or (II) problems with alcohol or substance abuse. (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. (3) Protection and advocacy system The term protection and advocacy system means a protection and advocacy system established under section 143 of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15043). (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 having in effect health and safety licensing requirements applicable to and necessary for the operation of each location of such covered programs that include, at a minimum— (A) 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 2014; (B) the provision of essential food, water, clothing, shelter, and medical care necessary to maintain physical health, mental health, and general safety of children at such programs; (C) policies for emergency medical care preparedness and response, including minimum staff training and qualifications for such responses; and (D) notification to appropriate staff at covered programs if their position of employment meets the definition of mandated reporter, as defined by the State; (2) develop policies and procedures to monitor and enforce compliance with the licensing requirements developed in accordance with paragraph (1), including— (A) designating an agency to be responsible, in collaboration and consultation with State agencies providing human services (including child protective services, and services to children with emotional, psychological, developmental, or behavioral dysfunctions, impairments, disorders, or alcohol or substance abuse), State law enforcement officials, the appropriate protection and advocacy system, and courts of competent jurisdiction, for monitoring and enforcing such compliance; (B) establishing a State licensing application process through which any individual seeking to operate a covered program would be required to disclose all previous substantiated reports of child abuse and neglect and all child deaths at any businesses previously or currently owned or operated by such individual, except that substantiated reports of child abuse and neglect may remain confidential and all reports shall not contain any personally identifiable information relating to the identity of individuals who were the victims of such child abuse and neglect; (C) conducting unannounced site inspections not less often than once every 2 years at each location of a covered program; (D) creating a non-public database, to be integrated with the annual State data reports required under section 106(d), of reports of child abuse and neglect at covered programs operating in the State, 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 (E) implementing a policy of graduated sanctions, including fines and suspension and revocation of licenses, against covered programs operating in the State that are out of compliance with such health and safety licensing requirements; (3) if the State is not yet satisfying the requirements of this subsection, in accordance with a determination made pursuant to subsection (c), develop policies and procedures for notifying the Secretary and the appropriate protection and advocacy system of any report of child abuse and neglect at a covered program operating in the State not later than 30 days after the appropriate State entity, or subdivision thereof, determines such report should be investigated and not later than 48 hours in the event of a fatality; (4) if the Secretary determines that the State is satisfying the requirements of this subsection, in accordance with a determination made pursuant to subsection (c), develop policies and procedures for notifying the Secretary 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; (5) develop policies and procedures for establishing and maintaining a publicly available database of all covered programs operating in the State, including the name and each location of each such program and the name of the owner and operator of each such program, information on reports of substantiated child abuse and neglect at such 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 and that such database shall include and provide the definition of substantiated used in compiling the data in cases that have not been finally adjudicated), violations of standards required under paragraph (1), and all penalties levied against such programs; (6) annually submit to the Secretary a report that includes— (A) the name and each location of all covered programs, including the names of the owners and operators of such programs, operating in the State, and any violations of State licensing requirements developed pursuant to subsection (b)(1); and (B) a description of State activities to monitor and enforce such State licensing requirements, including the names of owners and operators of each covered program that underwent a site inspection by the State, and a summary of the results and any actions taken; and (7) if the Secretary determines that the State is satisfying the requirements of this subsection, in accordance with a determination made pursuant to subsection (c), develop policies and procedures to report to the appropriate protection and advocacy system any case of the death of an individual under the control or supervision of a covered program not later than 48 hours after the State is informed of such death. (c) Secretarial determination The Secretary shall not determine that a State’s licensing requirements, monitoring, and enforcement of covered programs operating in the State satisfy the requirements of subsection (b) unless— (1) the State implements licensing requirements for such covered programs that meet or exceed the standards required under subsection (b)(1); (2) the State designates an agency to be responsible for monitoring and enforcing compliance with such licensing requirements; (3) the State conducts unannounced site inspections of each location of such covered programs not less often than once every 2 years; (4) the State creates a non-public database of such covered programs, to include information on reports of child abuse and neglect at such 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); (5) the State implements a policy of graduated sanctions, including fines and suspension and revocation of licenses against such covered programs that are out of compliance with the health and safety licensing requirements under subsection (b)(1); and (6) after a review of assessments conducted under section 3(b)(1)(B) of the Stop Child Abuse in Residential Programs for Teens Act of 2014, the Secretary determines the State is appropriately investigating and responding to allegations of child abuse and neglect at such covered programs. (d) Oversight (1) In general Beginning 2 years after the date of enactment of the Stop Child Abuse in Residential Programs for Teens Act of 2014, the Secretary shall implement a process for continued monitoring of each State that is determined to be satisfying the licensing, monitoring, and enforcement requirements of subsection (b), in accordance with a determination made pursuant to subsection (c), with respect to the performance of each such State regarding— (A) preventing child abuse and neglect at covered programs operating in each such State; and (B) enforcing the licensing standards described in subsection (b)(1). (2) Evaluations The process required under paragraph (1) shall include in each State, at a minimum— (A) an investigation not later than 60 days after receipt by the Secretary of a report from a State, or a subdivision thereof, of child abuse and neglect at a covered program operating in the State, and submission of findings to appropriate law enforcement or other local entity where necessary, if the report indicates— (i) a child fatality at such program; or (ii) there is evidence of a pattern of violations of the standards required under subsection (b)(1) at such program or by an owner or operator of such program; (B) an annual review by the Secretary of cases of reports of child abuse and neglect investigated at covered programs operating in the State to assess the State’s performance with respect to the appropriateness of response to and investigation of reports of child abuse and neglect at covered programs and the appropriateness of legal actions taken against responsible parties in such cases; and (C) unannounced site inspections of covered programs operating in the State to monitor compliance with the standards required under section 3(a) of the Stop Child Abuse in Residential Programs for Teens Act of 2014. (3) Enforcement If the Secretary determines, pursuant to an evaluation under this subsection, that a State is not adequately implementing, monitoring, and enforcing the licensing requirements of subsection (b)(1), the Secretary shall require, for a period of not less than 1 year, that— (A) the State shall inform the Secretary of each instance there is a report to be investigated of child abuse and neglect at a covered program operating in the State; and (B) the Secretary and the appropriate local agency shall jointly investigate such report. . (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 $235,000,000 for each of fiscal years 2015 through 2019.. (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. . 8. Study and report on outcomes in covered programs (a) Study The Secretary of Health and Human Services shall conduct a study, in consultation with relevant agencies and experts, to examine the outcomes for children in both private and public covered programs under this Act (including the amendment made by this Act) encompassing a broad representation of treatment facilities and geographic regions. (b) Report Not later than 1 year after the date of enactment of this Act, the Secretary of Health and Human Services 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 that contains the results of the study conducted under subsection (a). 9. Study and report on effectiveness of residential treatment programs (a) Study (1) In general The Comptroller General of the United States shall conduct a study on the implementation of this Act and the effectiveness of the covered programs under this Act (including the amendment made by this Act). (2) Matters to be included The study shall include all of the following items: (A) A review of the effectiveness of all Federal programs to improve conditions and eliminate child abuse within the covered programs. (B) An assessment of the progress made by States and covered programs to comply with this Act, including the regulations promulgated by the Assistant Secretary. (C) A review and assessment of the circumstances of all deaths to program participants that— (i) were not caused by natural causes; and (ii) occurred while the participants were in the care of a covered program. (D) Collection of information on the number of substantiated reports of child abuse within the covered programs, the nature of the child abuse involved, and the demographic makeup of youth served by the covered program. (E) An assessment of the effectiveness of the covered programs in reducing recidivism rates for the youth served by the programs. (b) Consultation The Comptroller General shall consult with the relevant agencies, experts, and nongovernmental organizations for purposes of conducting the study. (c) Report Not later than 1 year after the date of enactment of this Act, the Comptroller 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 that contains the results of the study conducted under subsection (a) and recommendations to improve oversight and implementation of this Act.