Montana’s failed attempts to beef up regulation of private, therapeutic programs for troubled teens parallel what has happened on the national level.
The “Stop Child Abuse in Residential Programs for Teens Act” has been introduced in Congress every year since 2006 by Rep. George Miller, D-Calif., and more recently by Rep. Adam B. Schiff, D-Calif., who introduced it in 2017 after Miller retired. It’s never gotten farther than passage by the House in 2010, and died in committee in 2017.
The lack of federal oversight means there’s no national database of programs and no national tracking of abuse allegations and complaints. Official-sounding organizations like the National Association of Therapeutic Schools and Programs (NATSAP) have no licensing powers.
NATSAP, like Montana's regulatory board, is dominated by people in the industry — a situation characterized by critics as “the fox guarding the henhouse.” That set-up is the primary focus of criticism for those seeking to change laws regarding such programs.
“You need independent, third-party regulation, not somebody who's in the industry regulating it,” said Angela Smith, the national coordinator and co-founder of HEAL, an advocacy group aimed at ending institutionalized abuse.
“You need someone who knows the industry, is a mental health professional or an education professional who understands the needs of youth and whether or not a program is meeting the standards as set by the law. But that's not what happens when you put people in charge of an industry in charge of that oversight,” Smith said in an interview with the Missoulian.
The connections between industry leaders and governing bodies aren’t clear to most people — or to parents sending their children to the programs. They may confuse program licensure with membership in trade associations, largely due to the ways programs use membership in such organizations in their marketing.
NATSAP is the most prominent association for the troubled teen industry, with 185 members, including therapeutic boarding schools, wilderness programs and young adult transition programs.
It was founded in part by John Santa, a cognitive psychologist with a doctorate from Purdue University, who opened the Montana Academy in 1997. He heads Montana’s Board of Private Alternative Adolescent Residential or Outdoor Programs (PAARP), which is composed of three industry leaders and two members of the public, giving the industry a majority of decision-making power when it comes to things like substantiating complaints and delivering consequences.
NATSAP, which has no regulatory authority, asks member programs to “aspire to” follow its published standards, though it is not a licensing body.
NATSAP’s website cites both ethical principles and good practices, including a call to “be conscious of, and responsive to, the dignity, welfare, and worth of their program participants.” It advises against relationships “that may impair professional judgment, increase the risk of harm to program participants, or lead to exploitation.”
It also says programs and schools it accredits "shall adhere to all applicable state and federal laws in conducting the operation, including administration, hiring and employee practices, observance of safety regulations, and the care of program participants.''
But during a 2007 congressional hearing on adolescent residential programs, former NATSAP director Jan Moss said that the association has no process for checking compliance.
“If a member has acted in a manner inconsistent with the law or our principles, we proceed on a case-by-case basis, either requiring the program to implement change or canceling its membership,” Moss said. He did not elaborate on how NATSAP would check whether a program had changed.
The congressional hearings and a 2007 Government Accountability Office investigation found that NATSAP member programs that had violated the organization's principles were still members, including Alldredge Academy in West Virginia, where a student died.
The GAO investigation was summarized in a 2008 report, “Residential Treatment Programs: Concerns Regarding Abuse and Death in Certain Programs for Troubled Youth.”
"The GAO report led to quite a few changes," Megan Stokes, NATSAP's executive director, told the Missoulian this month. "Now we require that a program be licensed by their state, or accredited by an accrediting body, like Joint Commission, CARF (Commission on Accreditation of Rehabilitation Facilities), COA (Council on Accreditation), NIPSA (National Independent Private School Association) if it’s a therapeutic certification, not academic," she said, listing several trade associations.
"Now, granted we’re a trade association, you know we’re not licensing. We can't go in and investigate and pull records because of HIPAA [the federal law governing medical records privacy]. … As a membership organization, dropping membership is the farthest that we can go regarding NATSAP, but we have called licensing (authorities), and once a local sheriff's department," she said.
The state of Montana allows programs to apply for an exemption from inspection if the program maintains "licensure" by NIPSA, COA, CARF and JCAHO (the Joint Commission on Accreditation of Healthcare Organizations). Both CARF and JCAHO inspect programs.
Four Montana programs — Clearview Horizon, Turning Winds, Montana Academy and Innerchange Chrysalis — have such exemptions, according to the state, and thus have not undergone state inspections since 2010.
NATSAP's Stokes said it would support federal legislation regulating private therapeutic programs for adolescents if it also required oversight of foster homes.
Regulation left to the states
Lacking federal regulation, it’s up to the states to police such programs, said psychiatrist Christopher Bellonci.
Bellonci is the vice president of policy and practice and chief medical officer at the Judge Baker Children’s Center, a Harvard Medical School-affiliated nonprofit program founded in 1917. At Judge Baker, he said in a telephone interview, “we gave parents the same key cards that granted them entry into all buildings as staff, and they have 24-hour, seven-day access to their children. ... We didn’t limit communication at any point; it’s not tied to a level.”
Several of the Montana programs reviewed by the Missoulian operate on a "level" system of rewards and punishments, the latter including cutting off communication with parents.
Bellonci became familiar with Montana’s programs when he testified as an expert witness in a lawsuit brought by Judith Newman after her 16-year-old daughter Karlye killed herself at Spring Creek Lodge Academy in Thompson Falls in 2004. Spring Creek closed in 2009.
Judge Baker’s status as a private nonprofit brings “significant oversight and regulation responsibilities,” safeguards lacking in for-profit programs in other states, he said.
“In Montana, like a couple of other states such as Utah and Idaho,” he said, “they have particularly weak registration and licensing requirements, leaving these programs to pop up like mushrooms in the wilderness.”
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Some states have tightened regulations on the programs, a move praised by Bozeman resident Ashley Kalfell, who has become an advocate for students in such schools, immersing herself in state laws and regulations she feels provide cover for the industry rather than bolstering state practices.
Kalfell attended Spring Creek Lodge Academy 15 years ago, and said its “seminars” — several days of group humiliation she was forced to repeatedly slam a rolled towel on the floor while she screamed along with 100 other students in a dark gymnasium— left her with PTSD and depression that lingers to this day.
Kalfell singled out a new California law that would ban such practices.
In 2016, the California Legislature approved Senate Bill 524 to increase oversight of alternative residential treatment programs. The bill elaborates on an existing law known as the California Community Care Facilities Act under which the state Department of Social Services licenses and regulates community care and residential facilities.
The new law institutes minimum health and safety standards for residential treatment programs, requiring not only program staff, but anyone providing behavioral-based services be licensed or certified by the appropriate agency. Staff are subject to criminal background checks before having unsupervised contact with children in programs.
It establishes rights for students in the programs, and requires that they be provided with a list of those rights, including the right to be free from physical, sexual, emotional or other abuse, including corporal punishment. It establishes a “reasonable” level of privacy for the students; scheduled and unscheduled telephone, written and electronic correspondence, and the right to present grievances without fear of reprisal.
It includes anti-discrimination protections for LGBT students, a ban on conversion therapy or any acts that seek to change the individual’s sexual orientation or gender expression.
The new regulations and licensing requirements were supposed to take effect Jan. 1.
Jodi Hobbs, who runs an Anaheim, California-based advocacy group called Survivors of Institutional Abuse and helped push the bill forward, said California is running behind with licensing but is working on it.
“The regulation is now in place, let’s see what happens,'' Hobbs said. "I'm hoping for the best, I'm hoping that our children are more protected, and that's why we did it.”
A decade ago, the National Conference of State Legislatures listed moves by other states — including New York, Kentucky, Utah and New Mexico — to regulate the industry. New York’s law specifically forbids “aversive behavioral intervention” and guidelines to prevent child abuse. A spokesman for NCSL said earlier this month it appears the group has not done an in-depth examination of the issue since.
Proposals in Montana
In Montana, Rep. Shane Morigeau requested legislation, House Bill 222, to impose state regulation on religious therapeutic programs for troubled teens, which are now exempt from state oversight.
The Missoula Democrat's motivation to protect children in religious settings is personal: His grandmother was abused at the Ursuline Academy in St. Ignatius, a mission school on the Flathead Indian Reservation exposed in a lawsuit as a safe haven for clergy who sexually abused children.
“It’s to make sure we’re not letting people sneak through,” he said. “There have been a lot of people go through these programs and have success. But history shows us that isn’t always the case.”
When similar efforts occurred in the past, Pine Haven Christian Ranch for Kids was on hand to vehemently reject any idea that state oversight is needed to protect the children there, despite the fact that one of its workers was sent to prison in 2005 for sexually assaulting two teenage girls.
Morigeau said his bill, sponsored by Rep. Zac Perry, D-Martin City, does not seek to put boundaries on how programs practice their respective religions; it’s simply giving enforcement power to the state when children are harmed, just like any other program that takes in vulnerable youths. The teenagers at these programs are typically the ones who would make the complaints, but those reports may be stifled when it’s the predators who have all the power at an isolated facility.
“These are vulnerable people looking for support and we want to do our best to protect them …,” he said.
Rep. Denley Loge, R-St. Regis, has drafted another bill to allow prosecutors to pursue criminal charges against those in a supervisory setting over a patient, like students at residential treatment centers.
Montana's age of consent is 16, but that would not apply to residents in a therapeutic setting under the legislation.
He proposes language that seeks to establish criminal charges for teachers who engage in sexual or inappropriate relationships with students, although he said there has been some hesitation because the programs in his bill are private entities, and not overseen by the Montana Office of Public Instruction.
Paul Clark, the former legislator who until last year ran a wilderness program of his own outside Trout Creek, said in an interview this month that if the problems the Missoulian found are "indeed happening, what I would do is change the composition of the board" — now dominated by members from the industry — "and add a couple of members of the public."
The board's original design "was to hold people accountable — not to allow a system where kids are in jeopardy,'' he said.
Eerily echoing a phrase used by the father of Ben Jackson, a 16-year-old boy who killed himself at Montana Academy in 2017, Clark said, "I know what people think about this: It's like the fox watching the henhouse."
Kalfell, the Bozeman activist, said that "on a national level, we’re always going to have this problem until we change things, but it can start here.''
"This is where we live, this is where we raise our children. Even if these kids aren’t from here, Montanans should care about what’s going on in Montana.”