Via Email: firstname.lastname@example.org
July 3, 2015
Steve Roman, Policy Coordinator
Texas Juvenile Justice Department
PO Box 12757
Austin, TX 78711
RE:Public Comments on Proposed Changes to Rules in the June 5, 2015, “Texas Register” Texas Administrative Code, Title 37, Part 11, Chapter 343, governing Secure Juvenile Pre-Adjudication Detention and Post-Adjudication Correctional Facilities
Dear Mr. Roman:
The Texas Council for Developmental Disabilities (TCDD) and Disability Rights Texas (DRTx) appreciate the opportunity to provide joint comments on changes to 37 TAC 343 proposed in the June 5, 2015, issue of the “Texas Register” (40 TexReg 3548-3560).
The Texas Juvenile Justice Department (TJJD) has introduced rule changes that help to bring its policies governing seclusion more closely into alignment with those in health and human services and educational settings in Texas. The importance of working toward a coordinated therapeutic, educational, and rights-observant state policy with respect to young Texans cannot be overestimated. The direction that TJJD is moving, as discussed in “The Annual Review of Treatment Effectiveness 2014”1, provides an excellent starting point for this work.
We respectfully request that TJJD consider the following information and recommendations relative to the seclusion of youth with intellectual and developmental disabilities:
- Consider adding a definition of “intellectual and developmental disability (I/DD)” in §343.100.
The definition should be based on the definition of “developmental disability” in the Developmental Disabilities and Bill of Rights Act of 2000 (see example in this section of comments).
The proposed rules address the importance of obtaining mental health consultations for youth who appear to have a psychiatric or psychosocial disorder, but they do not take into account the special needs of youth who have intellectual and developmental disabilities. In fact, the terms “intellectual and developmental disability” and “I/DD” are never used in the proposal (including the preamble). This is of concern given that TJJD reports that in fiscal year 2014 approximately one-third (32%) of the youth it served received special education program services.2
Intellectual and developmental disability —
- For individuals ages 9 to 22, a severe, chronic disability of an individual that —
- is attributable to a mental or physical impairment or combination of mental and physical impairments;
- is manifested before the individual attains age 22;
- is likely to continue indefinitely;
- results in substantial functional limitations in 3 or more of the following areas of major life activity:
- Receptive and expressive language.
- Capacity for independent living.
- Economic self-sufficiency; and
- reflects the individual’s need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated; or
- For an individual from birth to age 9, inclusive, who has a substantial developmental delay or specific congenital or acquired condition, may be considered to have a developmental disability without meeting 3 or more of the criteria described in clauses (a) through (g) of subparagraph (A) if the individual, without services and supports, has a high probability of meeting those criteria later in life.
- For individuals ages 9 to 22, a severe, chronic disability of an individual that —
- Consider adding the identification of residents with intellectual and developmental disabilities to the health screening required by §343.406.
- Consider prohibiting seclusion of TJJD residents who have intellectual and developmental disabilities.
Federal guidance on laws governing residential intermediate care facilities for persons with intellectual or developmental disabilities (ICF/ID) states that seclusion should never be used.3
Seclusion is also prohibited in special education services.4 Part of the reason for prohibiting the seclusion of students receiving special education services is that it interferes with their ability to receive a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA), the authorizing legislation for special education services.
The Department of Education has stated “for all children” “…seclusion should not be used (1) as a form of punishment or discipline (e.g., for out-of-seat behavior); (2) as a means to coerce, retaliate, or as a convenience for staff; (3) as a planned behavioral intervention in response to behavior that does not pose imminent danger of serious physical harm to self or others; or (4) in a manner that endangers the child. For example, it would be inappropriate to use restraint or seclusion for (1) failure to follow expected classroom or school rules; (2) noncompliance with staff directions; (3) the use of inappropriate language; (4) to “punish” a child for inappropriate behavior; or (5) staff to have an uninterrupted time together to discuss school issues.”5
It is important to note that there are no tools available to screen for suicidal ideation in persons with intellectual disabilities, another reason why seclusion should not be considered for this population.6 Further, a growing body of evidence supports the fact that seclusion/isolation/separation/segregation/solitary confinement has “an exceptionally detrimental impact on developing brains” of all youth.7
- For students who do not have I/DD, consider limiting seclusion to safety-only (imminent threat of serious physical injury to self or others) or resident request, eliminating use of seclusion as discipline, and reducing duration of seclusion consistent with other agencies.
Although we appreciate the imposition of a limit on the duration of disciplinary seclusion, which was previously of unlimited duration, to 48 hours, it is recommended that if seclusion is to be used, its use should be for safety purposes only, and the time frames for its use should be further reduced.
In state mental hospitals, private psychiatric hospitals, crisis stabilization units, and other settings, the maximum duration of seclusion for youth 9–17 with a physician’s order is two hours with a one-time renewal of two hours with physician evaluation. (For youth under age 9, the corresponding limits are one hour initial order with one hour extension.) For Waco Center for Youth (WCY), which is the only state-operated residential treatment center (RTC), these maximums are doubled. Other RTCs are governed by the same limits as WCY on the initial order.8 In these settings, seclusion is used in emergencies only and not as discipline.
- Consider making the rules consistent with federal anti-discrimination laws protecting people with intellectual and developmental disabilities by prohibiting the use of seclusion for situations involving safety or resident request (as previously discussed) for residents with I/DD, for whom higher rates of exclusion from class and bullying by other residents and staff suggest discrimination based on disability.
In its report “Orphanages, Training Schools, Reform Schools and Now This?” the National Disability Rights Network (NDRN) succinctly points out
The IDEA [Individuals with Disabilities Education Act], Section 504 [of the Rehabilitation Act of 1973] and the ADA [Americans with Disabilities Act] apply to youth with disabilities in juvenile justice facilities in largely the same manner as they do “on the outside.” The ADA and Section 504 provide protections against discrimination based on disability in programming, in discipline, in housing, and potentially applies Olmstead rights (rights to community integration) to juvenile justice systems.
Students with disabilities are bullied more often than students without disabilities.9 The US Department of Education has made clear that schools must not allow bullying to interfere with a student’s ability to receive free appropriate public education (FAPE) or undermine a student’s ability to achieve his or her full academic potential. Isolating/secluding/separating or otherwise removing “the student who is being bullied” out of the classroom to a solitary situation where no instruction is provided is denial of FAPE.10
Seclusion has led to tragic results, up to and including suicide, and has resulted in litigation. Most recently, a lawsuit against Rikers Island in New York led to a settlement agreement that “ends the use of punitive segregation for inmates under 18 as well as 18–year–olds with serious mental illness” in addition to “ending solitary confinement for 16– and 17–year–olds” (“NYC Settles Lawsuit with Former Inmates, Feds Over Abuses at Rikers Island,” “Slate,” June 23, 2015). Prohibiting the seclusion of youth reflects growing consensus, as expressed by Juan E. Mendez in his March 2015 report to the United Nations General Council (“Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment”):
In many States, solitary confinement is still imposed on children as a disciplinary or “protective” measure. National legislation often contains provisions to permit children to be placed in solitary confinement. The permitted time frame and practices vary between days, weeks and even months. In accordance with views of the Committee against Torture, the Subcommittee on Prevention of Torture and the Committee on the Rights of the Child, the Special Rapporteur is of the view that the imposition of solitary confinement, of any duration, on children constitutes cruel, inhuman or degrading treatment or punishment or even torture….
- Consider adding a trauma history or assessment to both the behavioral health assessment (§343.100(3)) and the psychological evaluation (§343.100(54)) referenced in the rules, and add definitions of “trauma” and “trauma history.”
Regarding the definition of Behavioral Health Assessment in §343.100, please consider adding the bolded and underlined language as follows: (B) psychosocial evaluation, including a trauma history, to include:
An evaluation of behavioral health should explicitly take into account the effect of traumatic events. According to the National Child Traumatic Stress Network,
Thorough assessment of trauma also is a prerequisite to preventing the potentially severe problems in biological, psychological, and social functioning that can occur when PTSD and/or associated behavioral health disorders go undetected and untreated (Nader, 2008). Although, like adults, most youth who experience a single traumatic stressor do not develop PTSD (Nader & Fletcher, 2014), many youth in the juvenile justice system have experienced the kinds of multiple, chronic, and pervasive interpersonal traumas that are most likely to result in serious symptoms (Ford, Grasso, Hawke, & Chapman, 2013; Kerig et al., 2012). Unresolved posttraumatic stress in turn can lead to serious long-term consequences into adulthood (Briere, 1997), such as problems with interpersonal relationships; cognitive functioning; mental health disorders, including PTSD; substance abuse; anxiety; disordered eating; depression; self-injury; conduct problems — all of which can increase the likelihood of involvement in the justice system (Ford, 2009; Friedman, Keane, & Resick, 2014; Kerig & Becker, 2014).11
- Understanding the specific nature of a youth’s trauma history can provide important information about the most appropriate interventions and services as well as behavioral triggers and environmental factors to avoid, increasing the physical and emotional safety of both youth and staff.12
- Consider including reference to intellectual and development disorder histories in the definition of Health Assessment (§343.100(20)) as follows: “(B) collection of additional data to complete the medical, dental, and behavioral mental health and intellectual and developmental disorder histories…”
- Consider additional comments with reference to definitions:
Definition of Medical Treatment (§343.100 (35))
It is unclear why the definition includes a licensed vocational nurse (LVN) but does not include a registered nurse (RN). Please add “registered nurse (RN)” to the list of professionals.
Definition of Mental Health Provider (§343.100 (36))
With reference to subparagraph (D) Texas Department of State Health Services, the department is not a licensing board. Through its administrative rules, it defines “qualified mental health professional.”13
Please consider changing the definition as follows:
Mental Health Provider — An individual who is licensed or otherwise authorized by state administrative law (rule) to provide mental health services by one or more of the following licensing boards:
Definition of Professionals (§343.100 (51))
Regarding clause (C)(iv), the department neither licenses nor certifies health care professionals. Because subparagraph (E) lists qualified mental health professionals, and the term is further defined in paragraph (55), please consider deleting clause (c)(iii) and renumbering the clauses.
Definition of Qualified Mental Health Professional (§343.100 (55))
This term is defined in Department of State Health Services (DSHS) rules14, not guidelines. Please distinguish state administrative rules from guidelines.
Definition of Room Restriction (§343.100 (60))
Placement of a resident alone in an area from which egress is prevented “for any period of time” is defined as seclusion in state administrative law by other state agencies for a variety of settings (please refer to the following chart for examples of definitions of seclusion, none of which “define out” episodes of seclusion based on duration). The current definition of “Room Restriction” is a definition of seclusion. Please consider adding exclusionary language that indicates that residents with I/DD should not be placed on room restriction or redefine room restriction so that egress is not prevented.
Comparison of Administrative Law on Seclusion in Texas by Setting 2015. Setting Definition of Seclusion Seclusion Permitted? State Mental Hospital The involuntary separation of an individual from other individuals for any period of time and or the placement of the individual alone in an area from which the individual is prevented from leaving.15 Yes Private Psychiatric Hospitals same definition as above The involuntary separation of an individual from other individuals for any period of time and or the placement of the individual alone in an area from which the individual is prevented from leaving. Yes Psychiatric Units of General Hospitals same definition as above The involuntary separation of an individual from other individuals for any period of time and or the placement of the individual alone in an area from which the individual is prevented from leaving. Yes Emergency and Other Units of General Hospitals same definition as above The involuntary separation of an individual from other individuals for any period of time and or the placement of the individual alone in an area from which the individual is prevented from leaving. Yes Crisis Stabilization Units Yes Community Mental Health Services Yes, with limitations Waco Center for Youth Yes State Supported Living Centers The involuntary separation of a resident away from other residents and the placement of the resident alone in an area from which the resident is prevented from leaving.16 No Intermediate Care Facilities for Individuals with an Intellectual Disability (ICF/ID) same definition as aboveThe involuntary separation of a resident away from other residents and the placement of the resident alone in an area from which the resident is prevented from leaving. No Residential Childcare Settings (residential treatment centers) A type of emergency behavior intervention that involves the involuntary separation of a child from other residents and the placement of the child alone in an area from which the resident is prevented from leaving by a physical barrier, force, or threat of force.17 Yes, with limitations Public and Charter Schools General Education None Not addressed Public and Charter Schools Special Education …a behavior management technique in which a student is confined in a locked box, locked closet, or locked room that:
- is designed solely to seclude a person; and
- contains less than 50 square feet of space.18
Although our comments largely relate specifically to youth with intellectual and developmental disabilities, without exception the principals on which they rely are relevant to all youth.
Thank you for the opportunity to comment on these rules. Please contact us if we can provide additional information or be of other assistance.
Texas Council for Developmental Disabilities
Steven Aleman and Jeff Miller
Disability Rights Texas
- Texas Juvenile Justice Department. “The Annual Review of Treatment Effectiveness”. December 2014. ↩
- Texas Juvenile Justice Department. “The Annual Review of Treatment Effectiveness.” December 2014. ↩
- Centers for Medicare and Medicaid Services, State Operations Manual, Appendix J, Guidance to Surveyors: Intermediate Care Facilities for Individuals with Intellectual Disabilities, Guidance §483.451(c), February 27, 2015. ↩
- Texas Education Code, Title 2, Subtitle G, Chapter 37, Subchapter A, governing Alternative Settings for Behavior Management, §37.0021(c), relating to Use of Confinement, Restraint, Seclusion, and Time-Out. ↩
- US Department of Education, “Restraint and Seclusion: Resource Document,” Washington, D.C., 2012. ↩
- Ludi E, Ballard E, Greenbaum R et al. Suicide Risk in Youth with Intellectual Disability: The Challenges of Screening. “J Dev Behav Pediatr” 2012 June 33(5): 431-440. ↩
- National Disability Rights Network, “Orphanages, Training Schools, Reform Schools and Now This?,” 2014. ↩
- Department of Family and Protective Services, Texas Administrative Code, Title 40, Part 19, Chapter 748, Subchapter N, governing Emergency Behavior Intervention, §§748.2801 and 748.2805, effective January 1, 2007, 31 TexReg 7377. ↩
- Pampel F and OMNI Institute. “Bullying and Disability: An Overview of the Research Literature.” Unpublished literature review, Denver, 2014. ↩
- US Department of Education, Office of Special Education and Rehabilitation, “Bullying of Students with Disabilities,” August 20, 2013. ↩
- National Child Traumatic Stress Network Juvenile Justice Working Group. “Assessing Exposure to Psychological Trauma and Posttraumatic Stress Symptoms in the Juvenile Justice Population.” 2014. ↩
- “Ibid.” ↩
- Texas Administrative Code, Title 25, Part 1, Chapter 412, Subchapter G, Mental Health Community Services Standards, effective April 29, 2009, 34 TexReg 2603. ↩
- “Ibid.” ↩
- Department of State Health Services. Texas Administrative Code Title 25, Part 1, Chapter 415, Subchapter F, governing Mental Health Interventions, §415.253(28), relating to Definitions, effective July 22, 2014, 39 TexReg 5581. ↩
- Department of Aging and Disability Services, Texas Administrative Code, Title 40, Part 1, Chapter 90, Subchapter A, governing Introduction, effective June 17, 2013, 38 TexReg 3806. ↩
- Department of Family and Protective Services, Texas Administrative Code, Title 40, Part 19, Chapter 748, Subchapter N, governing Emergency Behavior Intervention, §748.2401(10), effective September 1, 2010, 35 TexReg 7497. ↩
- Texas Education Code, Title 2, Subtitle G, Chapter 37, Subchapter A, governing Alternative Settings for Behavior Management, §37.0021, relating to Use of Confinement, Restraint, Seclusion, and Time-Out. ↩