Out of Luck & Behind Bars:
The Unnecessary
Incarceration of Children and Youth
Who are Awaiting Community Mental Health Treatment and Supports
Testimony
of
Tammy Seltzer
Senior Staff Attorney, Bazelon Center for Mental Health
Law
Before
The Committee on Governmental Affairs
Unted States Senate
July 7, 2004
Background
On any given night, nearly 2,000 children and youth—some
as young as seven—languish in juvenile detention facilities
across the country because they cannot access needed mental health
services. As a result, corrections staff struggle to serve a population
they are ill equipped to handle, and they and children needlessly
risk injury—all at unnecessary taxpayer expense.
Until now, public-policy circles have largely ignored the issue.
Recently, however, Representative Henry Waxman (D-CA) and Senator
Susan Collins (R-ME) commissioned the first national survey of
children with mental health needs unnecessarily incarcerated in
juvenile detention centers awaiting treatment. Their findings—released
today—highlight a tragic and expensive public policy failure.
Let me take a moment to highlight some of the key findings. Over
a six-month period in 2003, nearly 15,000 incarcerated youth—roughly
8% of all children in the centers surveyed—were detained
awaiting mental health services in the community, according to
the survey. Many have no criminal charges pending, while others
were arrested for minor offenses, such as truancy or trespassing,
generally traced to their mental health problems. Worse, investigators
noted that the survey probably underestimates the scope of the
problem.
Investigators found that juveniles with mental or emotional disorders
also stay in detention 36% longer—an average 23.4 days, compared
to 17.2 days for all detainees. Living in a punitive and traumatic
setting—with very poor mental health services or none at
all—their mental health worsens over time.
The rate of self-harm and suicide among juveniles with emotional
and mental disorders while incarcerated is four times that of youth
overall. Although the issue of victimization was not explicitly
addressed in the survey, these incarcerated youth may also be more
likely to be victims of violence by other detainees because they
appear more vulnerable due to their illness.
Correctional officers are often overwhelmed trying to serve a
population they have few resources and little training to help.
When officers restrain children for fear that they will hurt themselves
or assault others, the children are at risk of severe injury, even
death. Attention paid to youth with serious mental health needs
diverts resources from monitoring the other juveniles in detention
centers.
Incarcerating youth who are waiting for mental health services
is not only damaging to the youth; it is also wasteful. Investigators
found that this failed policy cost taxpayers almost $100 million
in 2003 alone.
My testimony today will address the causes of this tragedy, describe
the kinds of services and supports necessary to keep children with
emotional and behavioral disorders out of the juvenile justice
system, and outline steps the federal government can take to make
a difference for these children and their families.
Cause of the Crisis: Access to Care
According to detention center
administrators, these children they identified for the survey
should not be in their facilities and
would not be there if appropriate mental health services and
supports were available in the community.
Unfortunately, the number of children with mental illnesses who
are inappropriately held in short-term detention facilities is
just one particularly nasty symptom of a crisis in children’s
mental health. According to the Surgeon General, about 5-9% of
children ages 9 to 17 are affected by a serious emotional disturbance
(SED). Yet nearly four out of five American children who could
benefit from mental health services do not receive them. The tattered “safety
net” for children with mental illnesses drives too many into
the juvenile justice system, then leaves them to wait for scarce
community mental health services.
Children with mental disorders are funneled into the juvenile
justice system through various routes:
-
Lack of access: In most
communities, the public mental health system is open from 9 to
5, when most children are in school, but the
police department is open 24 hours a day. The police are the
only public employees who have a duty to respond to every call
for help;
the mental health system offers too few services and the little
they do offer are usually not the kind of intensive, individualized
care that we know can prevent children from entering the juvenile
justice system.
-
Lack of accountability: Schools are playing
a larger role in sending children with mental disorders to
the juvenile justice
system. Although legally required to provide positive support
and other proactive intervention to address behavioral problems
stemming
from a student’s disability, schools instead invoke
zero-tolerance policies and call the police to report even
minor violations
of school rules.
-
Bias toward law enforcement solutions: The agencies
responsible
for supporting parents and treating their children pass the
buck by instructing parents to call the police when a child needs
help. In one case, a mental health crisis line designed to
aid
parents
called the police instead of sending out a crisis team of
mental health professionals, even though mental health services
would
have been a more effective and humane response.
-
Lack of comprehensive
insurance for mental health problems: Desperate
parents of a child with a serious emotional or mental
disorder often call police when they can no longer handle
their child’s behavior because their insurance will not
cover the mental health services their child needs and the
public mental
health system offers no help. Parents with no insurance
are even less likely to obtain necessary services; parents
with Medicaid
coverage are not being offered the kinds of services states
could
provide under that program.
-
Lack of coordination: The public
agencies that serve children
(primarily child welfare, education, mental health and juvenile
justice) are so uncoordinated that a child can end up with
several different mental health diagnoses, with each agency referring
the parents to another for services that simply do not exist.
What Children Need to Succeed
While model programs are far too
rare, effective alternatives to incarceration do exist. One such
program, Wraparound Milwaukee,
works closely with parents to provide services tailored to
the needs of each child so children can stay out of crisis and
out
of the juvenile justice system. The program is reducing costs
and—more important—keeping kids out of juvenile detention
centers. Wraparound Milwaukee blends funding from the city’s child
welfare and juvenile justice agencies and pools it with private
and public insurance funds to pay for a coordinated service-delivery
system. In its first five years, the program reduced the average
monthly cost of care per child from more than $5,000 to less than
$3,300. Because the savings were reinvested in the program, Wraparound
Milwaukee has been able to nearly double the number of children
served. Most important, children’s ability to function at
home, in school and in the community has improved significantly,
and the number returning to the juvenile justice system has been
cut in half. In addition, Wraparound Milwaukee has been able to
return more than 80% of the children in residential treatment centers
to their homes or their communities once the children and their
families receive the appropriate individualized, strength-based
services.
With such blended funding and cross-agency collaboration, other
cities and states could improve access to children’s mental
health services and reduce the number of children who are needlessly
and cruelly detained in juvenile facilities.
Fortunately, we know the principles that make programs like Wraparound
Milwaukee successful in helping children avoid juvenile detention
and succeed in their communities. Children and their families must
have ready access to mental health services and supports, and this
access must be based on “kid time,” not bankers’ hours.
Services and supports must be designed to enable children to succeed
at home and school, not just avoid detention. Child-serving agencies
must be held accountable for serving children well and not rewarded
for pushing them off of the agency rolls and into the juvenile
justice budget. In particular, schools must be responsible for
educating and supporting all of their students; communities must
not allow schools to shirk their duties by suspending, expelling
and calling the police on students whose behavior could be effectively
addressed using positive behavioral supports. In addition, states
and the federal government need to do more to end insurance discrimination
and to serve the uninsured.
Public Policy Solutions
With blended funding and cross-agency collaboration,
other jurisdictions could improve access to children’s mental
health services. The federal government can also play a role. The
Keeping Families
Together Act, introduced by Sen. Collins and others, would help
reduce the number of children with mental or emotional disorders
in juvenile detention centers by supporting states’ efforts
to develop coordinated systems of care. The Keeping Families
Together Act would provide an essential foundation for reform,
but there are also other steps the federal government can take.
Recommendations
for Federal Agencies
Department of Justice
According to today’s report, in April
2003 the General Accounting Office recommended that the Department
of Justice “track
the inappropriate detention of mentally ill youth across the
country.” The
Department of Justice declined to follow the GAO’s recommendation,
citing a lack of information about the problem. The scope of the problem has now been documented by the Waxman/Collins
report, and the evidence shows that the problem is widespread,
occurring in two thirds of the surveyed facilities and endangering
thousands of children with mental or emotional disorders. Courts
have found illegal the practice of holding people in detention
facilities solely because mental health services are not available.
Given the seriousness of the situation, we urge lawmakers to require
the Department of Justice to reconsider the GAO’s request
and also encourage the department to enforce the law.
Center for Medicare and Medicaid Services
But simply closing the
door to juvenile justice is not a panacea. For example, the report
notes that many children are in juvenile
justice limbo because of a lack of specialized foster care
homes. Obviously, children should be kept at home whenever possible,
and necessary services should be brought to them there. However,
when out-of-home treatment is absolutely necessary, therapeutic
foster care has proven effectiveness. In therapeutic foster
care,
a child is placed with specially trained foster parents and
provided intensive, individualized mental health services. In addition
to helping the child, therapeutic foster care programs also
prepare
and support the child’s family to enable a successful transition
after the child leaves the therapeutic placement. This method
is less expensive and less restrictive than other types of out-of-home
placement, and studies of children in therapeutic foster care
show behavioral improvements and more successful transitions
to less restrictive environments. States can use Medicaid to help pay for some of the costs of therapeutic
foster care, but far too few states take advantage of this option
due to confusion about what Medicaid covers. The Center for Medicare
and Medicaid Services (CMS) could clear up these misunderstandings
by issuing a clarifying memo to state Medicaid directors, thus
making more funds available for states to expand the number of
therapeutic foster care placements they offer.
Department of Education
In 1997, the Individuals with Disabilities
Education Act (IDEA) was amended to include specific language
about schools’ responsibility
to respond proactively to students’ behavior if it interferes
with their learning or the learning of others. The reauthorization
explicitly calls for the use of positive behavioral supports
and interventions. Research has shown that positive behavioral
supports are the most effective way of managing disruptive behavior
for all students, not just those with disabilities. One middle
school with 550 students saw a 54-percent reduction of office
discipline referrals; 300 fights per year dropped to a handful.
Too few schools have embraced positive behavioral supports, relying
instead on zero tolerance policies, suspension, expulsion and calling
the police—tactics that do nothing to improve student behavior,
according to experts in the field. In fact, such strategies increase
the likelihood that children will end up in the juvenile justice
system. From Pediatrics journal:
A Centers for Disease Control
and Prevention study found that when youth are not in school,
they are more likely to become involved
in a physical fight and to carry a weapon. Out-of-school adolescents
are also more likely to smoke; use alcohol, marijuana, and cocaine;
and engage in sexual intercourse. Suicidal ideation and behavior
may be expected to occur more often at these times of isolation
among susceptible youth.
The Department of Education must do more to enforce the IDEA for
children with emotional and behavioral disorders and to promote
the use of school-wide positive behavioral supports for all children.
Recommendations for Congress
Family Opportunity Act
To address the lack of insurance for families
of children with severe disabilities, the Senate should also
pass the Family Opportunity
Act (FOA). The FOA would allow a limited group of families
who don't otherwise qualify for Medicaid to be able to buy into
the
program on a sliding-scale basis for their child, improving
access to medically necessary mental health services.
Keeping Families Together Act
The Keeping Families Together Act,
introduced last Fall by Senator Collins and others, would help
reduce the number of children
with mental or emotional disorders in juvenile detention centers
by supporting states’ efforts to develop coordinated systems
of care. Treatment for mental health disorders, such as bipolar disorder,
depression, schizophrenia and other serious mental illnesses can
be very expensive. Many parents exhaust their private insurance
after just a few months and are ineligible for Medicaid or other
assistance due to income and assets. This leaves the parents of
a child with a severe mental illness with the agonizing decision
between care or custody. No parent should be put in the position
of making this decision, and no child belongs in the child welfare
or juvenile justice system for the sole purpose of obtaining mental
health services.
The Keeping Families Together Act will provide states with the
ability to build new infrastructure to more efficiently serve children
needing mental health services while keeping them with their families
in their own homes. This legislation:
-
Provides $55 million over six years in Family Support Grants
to states that have committed to providing appropriate mental
health
services to children so that parents do not have to relinquish
custody of their children to get them the help they need.
Eligible children and youth are those under age 21 who are in
the custody
of the state or are at risk of entering care to receive mental
health services. Family support services are individualized
with family input, provided to the eligible child or youth and
their
family, and created to promote the mental health of an eligible
child or youth;
-
Requires collaboration between both private and public
partners, including representatives of families of seriously
emotionally disturbed children, mental health care providers,
private health
insurers, hospitals and residential care facilities, as well
as state partners, such as the child welfare and juvenile justice
agencies among many; and
-
Establishes a Federal Interagency Task Force to make
recommendations to Congress concerning strategies to improve
the delivery of mental health services. The Task Force will work
with
mental health and child advocates, as well as representatives
of affected families and state systems of care, to submit a biannual
report to Congress on its progress in implementing recommendations,
ending relinquishments and improving the delivery of mental
health
services.
Policymakers should act soon to adopt these reforms. Far too
many children with unmet mental health needs are ending up
in our juvenile
justice system—out of luck and behind bars.
Conclusion
When I last appeared before this committee to discuss
the plight of parents’ having to relinquish custody of their
children in order to obtain mental health services, I discussed
a GAO
study that attempted to document the scope of the problem. The
most shocking information in the report was not the number of
children who had been torn from their families—the 12,700
figure was most definitely an underestimate of the problem. As
someone who has worked exclusively in mental health for eight
years, I was most troubled about where these children were ending
up. I had assumed that the custody relinquishment problem was
a child welfare issue. To my surprise, however, two-thirds of
the children were being dumped into the juvenile justice system,
while only a third were in child welfare. Rep. Waxman and Sen. Collins must be commended for requesting
this juvenile justice report, which I view as an important follow-up
to the GAO study on custody relinquishment. The report is yet another
indictment of America’s failing mental health system. By
providing insufficient support to families in crisis and actively
involving the police, the public mental health system criminalizes
rather than treats mental health problems in children and youth.
We must demand an immediate change in philosophy and expectations.
All child-serving agencies must stop using the juvenile justice
system to avoid serving children they don’t want, and police
and judges should refuse to participate in the criminalization
of a public health problem. These children languishing in juvenile
detention facilities may have been thrown away like yesterday’s
garbage, but they will be tomorrow’s adults. If we do not
take responsibility for meeting their mental health needs now,
we are undermining their ability to reach their full potential
later, and that would be the greatest tragedy of all.
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The Bazelon Center for Mental Health Law is a national
legal advocate for the children and adults with mental disabilities.
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