Resolution 605 was adopted at the 2023 Annual Meeting of the American Bar Association and provides support for the Stop Institutional Child Abuse Act and similar state, local, and federal legislation that aims to prevent child abuse in youth residential programs. The resolution and accompanying report have a great deal of information for lawyers on how to prevent institutional abuse. Here are a few highlights.
- Urgent need for coordinated effort at federal, state, and local level. Resolution 605 recognizes that there is much to be done to effectively regulate the troubled teen industry and protect children from abuses within institutional settings. Stop Institutional Child Abuse Act (SICAA), currently pending in both the House of Representatives and Senate, provides for data gathering and a federal workgroup to study institutional child abuse, but this is only the beginning. As many as 200,000 children are being placed in residential facilities each year, costing taxpayers as much as $23 billion annually. A critical component of a robust accountability system would include a common database of basic information developed in each state that would include the number of children placed in private and state-run residential facilities disaggregated by placement location, demographic data, incident reports and law enforcement referrals, and funding source(s) and amount. This research would provide a bedrock for ongoing regulatory efforts and refinement and must be immediately prioritized to achieve impactful regulation. Resolution 605 supports SICAA and other legislation that gathers this data.
- Importance of regulating harmful practices that occur within institutional settings. While it is important to pursue legislation that regulates facilities themselves, Resolution 605 highlights the need for effective regulations of harmful practices currently occurring within facilities. The harms and dangers of institutional placements are well documented—long standing government research has documented physical and sexual abuse, overuse of physical and chemical restraint, medical neglect, inadequate education, and death. Resolution 605 supports legislation intended to prevent and eliminate these practices. Broad regulation must be achieved by targeting the facilities themselves, but more narrow regulations targeting harmful practices—such as the use of chemical and physical restraint, strip searches, isolation, and forced silence—must be adopted at all levels of government as well.
- Disparate impact on LGBTQ+ and BIPOC children and children with disabilities. Resolution 605 was developed by the Commission on Sexual Orientation and Gender Identity and the Section of Civil Rights and Social Justice. Institutional child abuse is a social justice issue and must be treated as such. Previous research has clearly identified that children of color are overrepresented in congregate care and institutional settings, and likewise, LGBTQ+ youth have a higher likelihood of ending up in residential facilities and often have significantly worse outcomes than their peers once placed in a group setting. Furthermore, the goals of integrating individuals with disabilities set forth in Olmstead v. L.C., 527 U.S. 581 (1999) remain largely unmet, and children with disabilities continue to be placed in residential facilities at high rates. Resolution 605 empowers civil rights attorneys and advocates to support ongoing legislation intended to protect these vulnerable populations from disparate harm and impact.
- Many different federal legal regimes must coordinate to effectively regulate this industry. Numerous different federal agencies have oversight of residential facilities, which results in regulatory confusion and issues with choice of law. Stakeholder agencies including Health and Human Service’s Administration for Children and Families’ Children’s Bureau, the Centers for Medicare & Medicaid Services, and the U.S. Department of Education’s Office of Special Education and Rehabilitative Services and Office for Civil Rights must coordinate to ensure adequate protections. Resolution 605 supports data collection and a federal workgroup to ensure coordinated legislative efforts at multiple layers of government and across differing legal regimes.
- Need for ongoing education and continued awareness throughout the legal system. While the legal community is developing a greater awareness of the dangers and potential harms of residential treatment programs, we are only beginning to understand just how many different areas of the law are impacted by the overuse of institutional placements within our legal system. Children are sometimes placed in residential settings during contentious divorces, so family lawyers should be able to address the harms of residential placements with their clients. Broken bones, traumatic brain injuries, sexual assaults, and extreme emotional distress are common injuries within congregate care settings, so personal injury attorneys should develop a trial acumen around these issues to ensure victims of abuse receive justice. Educational lawyers should be able to advocate in favor of community solutions for their clients struggling with individualized education programs to avoid placement of their clients in congregate care settings.
Furthermore, the legal community must collaborate and initiate more robust discussions around systemic issues within residential facilities, including labor and human trafficking, intergenerational trauma, and the lack of resources for a growing juvenile mental health crisis. If we are to be effective in realizing the vision of Resolution 605, we must continue educational efforts across the country and safely center lived experience voices in the discussion.