Oregon lawmakers consider sending kids in foster care out of state, again. Only this time, with less transparency

Six years ago, Oregon quietly started sending children in foster care to locked residential treatment facilities in other states.

When they got to those facilities, many kids were abused.

At one facility where Oregon children were sent, a child from another state was restrained for so long that he died. Staff restrained him after he threw a sandwich in the cafeteria. At another, a SWAT team arrived to break up a riot at the converted hotel in Utah where the majority of Oregon’s out-of-state foster kids were sent. The Oregon foster kids had semi-automatic rifles pointed at them. The stories of mistreatment were widespread. After intense scrutiny, Oregon eventually stopped the practice.

Now, the state’s Department of Human Services would like the ability to send children across state borders once again.

This time, they say, will be different.

Oregon lawmakers are considering a wide-ranging measure, House Bill 3835, that would simplify what is investigated as child abuse in both schools and foster homes. The measure would also give the state’s child welfare officials the ability to send kids across state lines. It has prompted intense debate between lawmakers, nonprofit advocates for children and health providers.

Some advocates have warned that the bill limits what is considered abuse at a time when the state is under intense scrutiny for its high rates of maltreatment of children in state custody. Others have noted that too many kids are lingering in emergency rooms and hotel rooms because there is a lack of appropriate health and foster care in Oregon. They blame the systemic failures on government overreach. They argue too many regulations have created a “culture of fear” among caretakers.

State Rep. Rob Nosse, a Portland Democrat, is sponsoring the bill. He testified Thursday to the House Committee on Early Childhood and Human Services that the current regulatory environment in Oregon is making it hard for providers to serve children. The state continually ranks poorly for its ability to provide behavioral health treatment to kids. Oregon has about 4,450 kids placed in child welfare custody.

“We must vehemently advocate for children to get the care they need wherever it is available, including having to go out of state if the care that is needed by the child is better provided in the facility that is located out of state,” Nosse said.

He called the measure “one of the most important bills” state legislators will deal with this legislative session.

Emily Cooper, an attorney with Disability Rights Oregon who was part of the class-action lawsuit against the Oregon Department of Human Services that was recently settled, also said the measure is worrisome.

“There aren’t sufficient guardrails in this bill to prevent us from going back in time,” Cooper said.

Less transparency than before

At the urging of Gov. Kate Brown in 2019, in the wake of the out-of-state and hoteling crisis, the state Legislature created what is called the “system of care advisory council.” The idea was to get a group of people together from child welfare, juvenile justice and education to plan for more children’s services outside of institutional settings.

That council is now suggesting Oregon needs the ability to send kids out of state with more ease. State law currently does allow officials to send kids out of state, but the facility where they are being sent must first go through a licensing process and meet certain standards.

“I want to be clear, we don’t want to go back to the bad old days where caseworkers were pushing kids out of state because cases were too high and it was an easy way to, ‘oh get this kid off my caseload,’” Anna Williams, the executive director of the council and a former Democratic lawmaker, said in a legislative hearing.

But a side-by-side comparison of what happened six years ago and what is being proposed today doesn’t offer much clarity over how the current legislation would ensure the same mistakes are not repeated.

Williams told lawmakers during a legislative hearing there would be “significant oversight and accountability” this time.

Six years ago, before a kid was sent to an out-of-state facility, a team at the state child welfare’s central office had to sign off. A judge had to also give the go-ahead. The state hired a third-party consultant to visit the kids in the facilities. Sometimes, the state would send its own staff to inspect a facility.

Once, Oregon child welfare officials visited a facility over a period of three days and wrote a glowing review of the yoga and meditation possibilities at the Red Rock Canyon School. A day later, the state of Utah published its own report citing a list of violations, including staff degrading residents and one youth being put in a chokehold until they were unconscious. It was the same facility where A SWAT team showed up to break up a riot.

Oregon’s new proposal says the child welfare director must personally approve child movements out of state, along with approval from the Oregon Health Plan Medicaid director. The bill was recently amended to also require court approval before sending a kid out of state.

“We aren’t just basing it on other state’s much lower standards,” Williams said. “We want to go see it ourselves and make sure the kid is safe.”

Under the past guidelines, when kids were sent out of state, the child welfare agency initially tried to cite child privacy laws for keeping the information secret. Eventually, more information emerged, and so did the terrible stories. Ultimately, the agency started sharing a public dashboard that showed in real-time where kids were.

The current bill would require the agency to alert the governor’s office, the foster care ombudsman (who works inside the agency), and the systems of advisory care panel as soon as possible when a child is moved. It would require quarterly and annual reports sent to the Legislature, but does not require a dashboard. Essentially, a child could be moved to a facility for weeks or months without the public’s knowledge.

There are some instances where kids benefit from care that Oregon can’t provide. Recently, a youth with an eating disorder who also needed care in a gender-affirming placement received care in Arizona.

But Cooper, the disability rights attorney, said it should be evident that the facility where the kids are being sent meets Oregon standards and offers therapeutic care.

“We will (once again) end up sending kids to out-of-state facilities regardless of how good they are,” Cooper said.

Cooper, who also sits on the state’s system of care advisory council with Williams, said the state’s focus should be on finding solutions where children can stay in their communities.

But, she noted, state child welfare officials have struggled to have adequate oversight over providers in their own backyard. For example, they recently placed kids in foster care in unlicensed short-term rentals with people who failed to background check. After an OPB investigation, Oregon canceled the contract with the provider.

Two years ago, a U.S. District Court appointed a special master to help the agency steer toward creating more placements in Oregon. This was in response to the state’s continued reliance on placing children in hotels, which cost upwards of $25 million. At the time, Judge Michael McShane wrote that Oregon’s defense of its practices had “become nothing more than a stale mantra and the Court has lost faith in ODHS’ ability to end this entrenched policy on its own.”

Riley Thomas, a former kid placed in foster care, submitted testimony to the Legislature on the current bill. Restrictions on out-of-state placements came after someone finally listened to the kids who shared their stories, she said.

“It was stated that only youth that would be sent out of state were kids who were rare exceptions and were children that were hard to control,” Riley wrote. “That didn’t last long before a large amount of kids were being shipped out of state and placed in for-profit facilities, kids as young as nine years old.”

Restraints and seclusions

Another large component of this wide-ranging measure aims to clarify what is considered wrongful use of restraint and seclusion for children, both in public schools and child welfare settings.

The measure would narrow the definitions of both to say that any restraint or seclusion for discipline, punishment, retaliation or convenience purposes is “wrongful.”

Jamie Vandergon, the CEO of Trillium Family Services, which provides care for kids ages 5-24 throughout the state, wrote in testimony that past laws had “unintended consequences” that created a culture of fear and constant reporting.

Some school district officials applauded the efforts to clarify rules around restraint.

“We have had multiple occurrences where staff members have been accused of child abuse as they work with students,” Charan Cline, the superintendent of the Redmond School District, wrote to lawmakers. Cline said most investigations don’t confirm the abuse allegations. “During the investigation, our people are put on administrative leave, thus causing students to be served by less qualified substitute teachers.”

But a parent, Eriko Ono, who has a disabled child in the public school system, felt very differently.

“I do not support a more relaxed definition of restraints and isolation. I also do not support less oversight when either of these strategies are used,” Ono said. “Oversight is already difficult in many school settings.”

The Oregon Criminal Defense Lawyers Association noted they also strongly opposed the bill, saying it would lower the standards for keeping kids safe in numerous ways.

“Oregon’s kids need better protections from abuse, not worse,” Mae Lee Browning, the legislative director for the group, wrote.

The bill is scheduled for another public hearing on Tuesday.