Child Maltreatment Victims with Disabilities-- National Policy Update

1. Child Maltreatment Victims with Disabilities--National Policy Update Howard Davidson, J.D. Director, ABA Center on Children and the Law 740 15th St., NW, Washington, DC 20005 202/662-1740 davidsonha@staff.abanet.org

2. Learning Objectives • Understand relevant federal laws and how to utilize them effectively in advocacy • Consider new advocacy strategies to aid child maltreatment victims with disabilities • Appreciate ways in which lawyers and judges can aid in better serving this population of children

3. Excerpts from 8/2/01 CCDTFCAN congressional testimony… • Children with disabilities are, on average, 3.4 times more likely to be maltreated (3.88 times more likely to experience emotional abuse; 3.79 times more likely to be physically abused; 3.76 time more likely to be child neglect victims; 3.14 times more likely to be sexually assaulted) • Approximately 22% of maltreated children have learning disabilities • Near-fatal child maltreatment leaves 18,000 kids permanently disabled each year (lost productivity: up to $1.3 billion if earnings impaired only 5-10%)

4. Federal Child Abuse Prevention and Treatment Act (CAPTA) • 42 U.S. Code Section 5101 • Amended 6/03 by the “The Keeping Children and Families Safe Act of 2003” (P.L. 108-36) • Since 1974, CAPTA has mandated a GAL or attorney to be appointed for every child; required inclusion of “emotional harm” as well as physical harm in reporting laws; and CAPTA made possible a congressionally-mandated study finding 175,000-300,000 children with disabilities maltreated annually (Westat 1993)

5. CAPTA’s Community-Based Prevention (Title II) Program • Funds (now $33 million; President proposes almost doubling it) are to be used to (among other things) finance “disability services” and “support the additional needs of families with disabilities through respite care and other services” • State agency getting these funds must include as part of its collaborative network “individuals and organizations experienced in working in partnership with families with children with disabilities” and include representation by parents with disabilities

6. Applications must show how state will maximize participation of children and adults with disabilities • States receiving this Title II money must report to HHS on the number of families with children with disabilities who are served with these funds • “Children with Disabilities” is defined as having the same meaning as “child with a disability” in the Individuals with Disabilities Education Act (IDEA)

7. Despite the CAPTA study findings on child maltreatment disability victims… • Child disability status was not included in a factor in a following National Incidence Study of Child Abuse and Neglect, and states are not required by CAPTA to collect data (through the NCANDS process) on child disability status (only about 19 states now collect this data), and • There is still no clear CAPTA focus on reporting and helping children with disabilities who are victims of child abuse and neglect. HOWEVER…

8. 2003 CAPTA Amendments… • Adds to federal “Children’s Justice Act” (focused on improving each state’s investigation and judicial handling of abuse cases) a new area of state CJA focus: “the handling of cases involving children with disabilities or serious health-related problems who are victims of abuse or neglect” (e.g., by CACs/police/CPS) • State CJA task forces can now use their federal CJA money ($17 million) for grants/contracts or projects (e.g., trainings) addressing these issues • CJA’s support of “death review” can also look at child disability issues in fatalities/severe injuries

9. A very significant CAPTA amendment… • Now requires states, in all cases of substantiated child abuse or neglect victims under age 3, to have a process for referring children to their state early intervention program under Part C of the Individuals with Disabilities Education Act • This mandatory Part C IDEA referral also appears in the 2004 House-passed IDEA reauthorization bill (HR 1350, Sec. 637) and adds children born with FAS or drug-exposure

10. In addition, the 2003 CAPTA amendments… • Encourage federally-supported research and technical assistance on how CPS agencies can make effective referrals to evaluate and treat the physical health needs, developmental services needs, and mental health needs of abused and neglected children, and • Encourage states to establish effective linkages between CPS and public health, mental health, and developmental disabilities agencies

11. Other federal law reform that can impact this population • Juvenile Justice and Delinquency Prevention Act 2002 amendments: For a state to use its share of $76 million in state formula grant money, it must now additionally: a) work to make child welfare records of a child available to the court in a delinquency case; b) incorporate relevant child welfare records into a child’s juvenile justice record for treatment planning, and c) make sure that if the juvenile’s placement is paid with Title IVE funds, that the youth has its “protections”, including a case plan and periodic case reviews

12. Proposed “Child SAFE Act” (HR 4856) would require that within 30 days of a maltreated child’s removal from home that there be an assessment of their physical and mental health needs, identifying any issues to be addressed to ensure their “positive development and well-being” • Proposed “Kinship Caregiver Support Act” (S. 2706) would, through new targeted funds, help link caregivers with needed services for abused/neglected children in their care, and provide new financial support for their care

13. Several examples of innovative state legislation… • NH-- SB 354 (2002): Authorizes foster parents to act as educational advocates for foster children with educational disabilities • CA-- AB 458, Chap. 331 (2003): Adds to the list of foster children’s rights a right to fair and equal access to services and not to be subjected to discrimination or harassment on the basis of mental or physical disability, and that caretakers be trained about this • CA-- AB 490, Chap. 862 (2003): Authorizes area boards on developmental disabilities to conduct life quality assessments for dependents of juvenile court

14. Evidence we’re doing poorly addressing child maltreatment victim needs… • Federal “Child and Family Services Reviews” (CFSRs) in every state show a real scarcity in the availability and delivery of mental health services for abused/neglected children in foster care, the questionable quality of those services when they are delivered, and the lack of routine mental health assessments even when there was a good reason to conduct such assessments • All state “Program Improvement Plans” have to address these shortcomings

15. A proposed child welfare reform plan to help these kids • Pew Commission on Children and Foster Care (Launch- May 2003; Report- May 2004) • Federal law must be revised to create a flexible “Safe Children, Strong Families” grant that uses Title IV-E funding (not tied to family income) and allows states to re-invest federal foster care dollars into child/family support services; also would create new federal “Guardianship Assistance” program • Courts should measure outcomes for children to see how these children improve

16. Pew Report also calls for better training of judges, attorneys, CASA, and others who work in the courts so that they can provide a “stronger voice” for maltreated kids • They want to see leadership at the level of every state’s highest court (including through the state’s federally-funded “Court Improvement Program”) to better serve the needs of children

17. Mental health legislative/policy reforms proposed by AACAP/CWLA group • Experts on workgroup addressing mental health needs of children in foster care have made proposals to: enhance Medicaid/EPSDT services; promote more early intervention; fund new service delivery models; promote collaboration (including the courts); end unnecessary custody relinquishment; and aid “transitioning out” children and families -- by amending various federal laws, enhancing funding for these services, and passing new laws [e.g., Keeping Families Together Act(HR 3243/S 1704)]