Background

On any given night, nearly 2,000 children and youth—some as young as seven years old—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 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.[i] 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 rather than send 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 and 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 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.[ii] 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 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.[iii]

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 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 interfered with their learning or the learning of others. The reauthorization explicitly called 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.[1]

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 Diseases 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.[iv]

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, is a specific piece of legislation that 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 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 eights 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.