Oregon bill redefines child abuse, sparking foster care and restraint law debate

SALEM, Ore. (KATU) — A bill crafted by the Oregon Department of Human Services (ODHS) and the state's System of Care Advisory Council (SOCAC) would loosen the definition of child abuse as it pertains to wrongful restraint and would allow for a number of exceptions to Oregon's prohibitions on placement of foster kids out of state.

Advocates for the measure say Oregon's regulations may be contributing to reduced services and placements for kids with high needs especially those with aggressive behaviors.

"As the situation currently stands, caregivers who take actions directed or modeled by their supervisors or institutions, or those who interact with a dysregulated child in ways that would be viewed as normal and safe outside of a CCA (child care agencies), are being wrongly labeled as child-abusers," reads written testimony submitted by Dane Gatewood a mental health technician at a youth residential psychiatric facility in Portland.

Scheduled for its first public hearing on Thursday at 8 a.m., HB 3835 has already received some written testimony, mostly in opposition to the bill, much of it from parents and some from foster parents and foster youth.

"This bill may be having its picture painted as one of necessary reform, but the truth is that this bill is in its most simplistic form, an attack on the protections for the youth in Oregon under a guise of "eliminating unclear laws and a culture of fear," wrote Lilyann Miller a youth in foster care. "One of the most concerning parts of this legislation to me and many others is not only the redefinition of restraint and seclusion, but the redefining of when and how it is appropriate to use them."

Oregon's definition of when restraints in schools and childcare facilities are considered child abuse is very detailed and specifies that individuals who are not trained to administer restraints in a non-abusive manner are not allowed to apply them. It details what types of holds are considered abuse including restraints that place a child on their back on the floor or restraints that apply pressure to their neck.

The definitions vary slightly for schools and residential facilities. For example, the law for residential care settings only allows staff certified by an ODHS-approved crisis intervention program to use restraints. In schools, the staff member must be trained by the Oregon Department of Education on the use of restraints.

If passed the bill would define restraint as abuse only when it meets one or more of these criteria:

1. It is used as a form of discipline punishment retaliation or for the convenience of staff or others
2. It is a chemical restraint
3. It is determined to be excessive reckless use of force that results in or is likely to result in serious physical harm.

Proponents of the bill argue that the laws, as written, are clunky, do not apply uniformly across school and residential settings, and contain a level of detail that creates a culture of fear among those who need to use restraint to protect staff, the child being restrained, and/or other children in the setting.

"The adult might be feeling you know 'what do I do here do I grab them to stop them from doing this, that could be abuse, do I step back and let it play out that could be neglect," said Ajit Jetmalani Child and Adolescent Psychiatrist testifying on the bill during an informational hearing on March 11. "That begins to occupy space in one's mind and one's heart and that can be represented to the child as something that they interpret incorrectly."

Sen. Sara Gelser Blouin who sponsored the legislation that enacted restraint definitions in 2023 and is opposed to relaxing those restrictions says at the end of the day it's a question of whose interest to prioritize, the children or the adults. While she said she believes those involved with the bill have children's best interest at heart, she feels, if passed, the bill would remove safeguards.

"We have to listen to these kids. We have to listen to what they're saying," she said. "When they tell us they're being hurt, when they're telling us their needs aren't being met, I really think we need to defer to them and listen to what they are telling us that they need."

Gelser Blouin has put forward SB 1113, a similar bill to HB 3835, that she says accomplishes some of what the House Bill intends to without posing as much threat to those safeguards.

Her bill would remove abuse reporting requirements when the only violation is that an untrained staff member administered a restraint. Instead, it would require reporting to ODE when this occurs, and that state agency would be responsible for holding the school district accountable after a certain number of those violations.

"My understanding from a briefing we had with DHS a couple of weeks ago is that this would reduce almost all of the investigations that do not end in a substantiation," Gelser Blouin said.

SB 1113 also addresses some of the changes HB 3835 would make to laws prohibiting ODHS from placing foster kids out of state. The ODHS-sponsored House Bill makes exceptions to the out-of-state placement ban, also passed by Gelser Blouin.

Currently, state law only allows out-of-state placement when ODHS visits the out-of-state facility in person and licenses it under Oregon's residential care facility requirements.

Under HB 3835 ODHS would be allowed to place out of state without licensing the entity:

• At the request of a tribe
• When placing a child in a rural area in a residential home in a neighboring state (for example: Eastern Oregon children placed into care in Idaho)
• If the child is already out of state placed with relatives and adoptive families
• If a licensed Medicaid provider has approved the placement as medically necessary or appropriate
• If placed with an out-of-state adoption and foster care agency even when unlicensed in Oregon.

SB 1113 maintains the exception for tribal requests and adds an exception for hospital care when referral for that care is ordered by a physician. It also adds an exception for placement in out-of-state residential substance use disorder treatment programs when they are on the Substance Abuse and Mental Health Services Administration List (SAMHSA), led by a physician, referred to by the child's physician, and approved by a court.

Gelser Blouin feels the ODHS-sponsored bill would allow for a return to a time when the state agency, responsible for providing safe homes for foster kids, was plastered across headlines reporting allegations of abuse from Oregon children placed in out-of-state residential treatment facilities that have since been shut down.

"I think the argument that they're making is that if a child needs treatment and we don't have it in this state, we should be able to send them to a specialized facility in another state. On its face, that sounds fine. However, that is exactly what we said when we sent a bunch of kids out of state in 2018, 2019, 2020," she said.

Anna Williams, Director of SOCAC promised that would not be the case.

"All of those exceptions in HB 3835 come with significant oversight and accountability we want to be clear we are not trying to go back to the bad old days where caseworkers were placing kids out of state because their caseloads were too high and it was kind of an easy way to say hey get this kid off my caseload," she said during the bill's informational hearing.

She pointed out that out-of-state placements would be reviewed by the Governor's office as well as ombudsmen and the courts would have the ability to weigh in on the placement after it had occurred.