Childhood Denied: Ending the Nightmare of Child Abuse and Neglect
Childhood Denied: Ending the Nightmare of Child Abuse and Neglect is an exposé of how America ignores and often discards its most vulnerable children. Delving into the political, legal, and social factors of children at risk for abuse and neglect, it chronicles the plight of abused children across the nation and provides a “report card” for each U.S. state. With a practical, journalistic, and social scientific approach, this fervent book emboldens child welfare professionals, government representatives, lawmakers, child attorneys, law enforcers, and the general public to respond more effectively and consistently to the needs of children at risk.
Features and Benefits
Explores viable solutions to mitigate child abuse, such as legislative changes; quality of child protection services and foster care; training and education within the judicial system; ...
- Front Matter
- Back Matter
- Subject Index
- Chapter 1: Keepers of the Plan
- What Is Abuse and Neglect
- From Good Practices to Abuse and Neglect
- Efforts at Defining Abuse and Neglect
- Elaboration on Child Maltreatment
- Damage Beyond the Visible
- Variations in Definitions
- Extent of the Problem Now—Again a Blurred Picture
- The Unrelenting Cycle of Abuse
- Indicators of Abuse
- Indicators of Emotional Abuse
- When Poverty, Race, and Abuse Collide
- Chapter 2: The Best Interests of the Child
- When Should the State Intervene?
- A Universal Term?
- The Pioneering Research
- Aiming at the Canon
- The Definition Frames Our Reality
- Best Interests Across the United States
- Abusing the Term?
- Empty Promises
- A Crying Need for Change
- Factors to Include When Determining the Best Interests of a Child
- Administrative Continuity
- Physical Safety and Welfare
- Moral, Emotional, Intellectual, Social Needs
- Individual Needs
- Desires and Wishes
- Family Bonds
- Chapter 3: Lost in the System: Confidentiality and Secrecy
- The Confidentiality Barrier
- The First Star Approach
- What Policy Can Do
- Lost in the System
- Chapter 4: A Brief History of Child Custody Issues Related to Abuse and Neglect
- The Father: A Master's Rights
- The Mother: Legal Impotence
- Child Custody Law in the New Republic, 1790–1890
- Early U.S. Cases
- The Courts
- Evolution of Best Interests Standard and Tender Years Doctrine
- “Placing Out”
- The State as Superparent: The Progressive Era, 1890–1920
- Child Saving and Childsavers
- Child Placement
- In the Best Interests of the Child? 1960–1990
- Removal of Children and Termination of Parental Rights
- Foster Care and Adoption
- Chapter 5: Silenced by the Law
- I Hear You Knocking—But You Can't Come In
- A Little History
- Should a Child Have a Say in Court?
- Validating the Decision in the Child's Mind
- Only Lawyers Can Provide Due Process
- Why Can't the Judge Do It?
- Why Can't Social Workers Do It?
- How Old Should a Child Be to Have a Voice?
- What If the Child and Lawyer Disagree?
- Lawyers Will Need to Spend Time With Kids
- Attorneys Must Be Trained to Interview Children
- A Bright Spot
- Chapter 6: Foster Care Today
- Foster Families Challenged on Every Side
- The Foster Care System Today
- Federal Inflexibility Hurts Foster Kids
- The Straightjacket Tightens
- Foster Care “Drift”
- A Hopeful Sign
- Training for Foster Families
- Aging Out of the System: Where Do I Go From Here?
- A Proposal for University-Based Foster Care
- Chapter 7: Caseworker and Police Challenges—Who You Gonna Call?
- The Extent of Their Burden
- The Systemic Problem
- Assessing Training
- What Can the Federal Government Do?
- A Kind of ROTC for Caseworkers
- Learning from Mistakes
- Challenges of Police Involvement
- Chapter 8: The Politics of Child Abuse and Neglect
- How Bad Is the Situation?
- Why Haven't We Fixed It?
- Polarization and the Damage Done
- The Realities on the Ground
- Why Is This the Case and How Do We Change It?
- Children Don't Vote
- Sexy Stories Give Cover to Cowardly News Hounds
- Race and Class
- Breaking Through Political Barriers
- Strength Through Cooperation
- Publicize Best Practices
- Sue the Laggards
- Challenge the Secrecy Laws
- Reverse the DeShaney Decision
- Amend the U.S. Constitution
- Ratify the UN Convention on Children's Rights
[Page ii]We dedicate this book to the memory of Earl Noblet.
Copyright © 2009 by SAGE Publications, Inc.
All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher.
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Library of Congress Cataloging-in-Publication Data
Reardon, Kathleen Kelley.
Childhood denied: ending the nightmare of child abuse and neglect/Kathleen Kelley Reardon, Christopher T. Noblet.
Includes bibliographical references and index.
ISBN 978-1-4129-3976-8 (cloth)
ISBN 978-1-4129-3977-5 (pbk.)
1. Child abuse—United States. 2. Child abuse—Government policy—United States. 3. Abused children—Government policy—United States. 4. Child abuse—United States—Prevention. I. Noblet, Christopher T. II. Title.
This book is printed on acid-free paper.
08 09 10 11 12 10 9 8 7 6 5 4 3 2 1
Acquisitions Editor: Kassie Graves
Editorial Assistant: Veronica K. Novak
Typesetter: C&M Digitals (P) Ltd.
Cover Designer: Candice Harman
Marketing Manager: Carmel Schrire
Foreword: These Are Our Kids as Well as Theirs[Page ix]
Whether Republican or Democrat, conservative or liberal, Americans should surely support unanimously, vigorously, and with a whole heart the well-being of all our children. … after all, they are the only future we have. Yet First Star's distinguished child welfare experts tell us repeatedly and clearly that threats just as scary as those of Homeland Security endanger the safety and future of many American children: right here, right now: abuse, neglect, and the real perils of our nation's broken-down child welfare and foster care systems. The National Child Abuse and Neglect Data System determined that in FY 2006 an estimated 3.6 million children in the 50 states, the District of Columbia, and Puerto Rico received investigations by child protective service agencies. Of those, approximately 905,000 children were determined to be victims of child abuse or neglect and 1,530 died. Appallingly, more than three-quarters of these deaths were of children under the age of four.
Many more maltreated children die an emotional death and suffer unimaginable stress, severe anxiety, depression, and low self-esteem that blight their prospects for a happy, productive life. Half the adult males in our prisons were abused or neglected as children. … what does that cost us? Thousands of abused kids think about or attempt suicide. More than three-quarters of a million children (799,000) experienced foster care in 2006. Worse, in many cases it is the government that places these children in harm's way, while claiming to protect them through foster care. The dictionary defines foster as “to bring up, nurture, promote the growth and development of, nurse or cherish.” Foster care should always provide security and protection from an unsafe home. Unfortunately, in many cases it is even worse. And too many children become stuck in perpetual foster care motion: moved repeatedly from house to house and [Page x]never finding permanency. Both children and society pay a heavy price for this unstable, precarious reality. The federal government sets standards to protect children and find safe, permanent homes for them. Yet not one state has fully complied. According to UNICEF, in 2007 the United States ranked number 20 of the 21 wealthiest First World nations by multiple measures of child welfare. … How can that be? Abused children have no lobbyists, don't vote, and thus have no real voice to protest. In two-thirds of the country, proceedings are shrouded in secrecy, even after the child dies.
Hello, America: this is happening on our watch! William Gray (D-PA), former majority whip and chairman of the House Budget Committee, who serves as vice chair of the nonpartisan Pew Commission on Children in Foster Care, noted, “the foster care system is in disrepair. Every state has now failed the federal foster care reviews and we've seen far too many news stories of children missing from the system or injured while in care.” The commission released far-reaching recommendations to overhaul the nation's foster care system. Formulated by leading experts, these recommendations represent intensive analysis and interviews with professionals, parents, and children. Commission Chairman Bill Frenzel (R-MN) said in 2004 that these recommendations include “greater accountability by both child welfare agencies and courts; giving states a flexible, reliable source of federal funding, new options and incentives to seek safety and permanence for children in foster care and helping courts secure the tools, information and training needed to fulfill their responsibilities to children.” What is not to like here?
Much of this work to put children first involves changing their status as chattel or property under our legal system. How can it be right that in half the country a man who beats a dog goes to jail but one who beats his child the same way is not prosecuted?
First Star (http://www.firststar.org), the charity we founded in 1999, is working day and night right now on three critical issues for children: to guarantee abused children in all 50 states the right to their own, competent attorney during court proceedings where their future is held in the balance; to eliminate legal and regulatory barriers that prevent those children's advocates from exchanging information vital to keeping them out of dangerous situations; and to shine the light of day where bureaucracy is hidden in shadows away from public scrutiny and accountability. First Star and the Children's Advocacy Institute of the University of San Diego recently sponsored the fifth bipartisan Congressional Roundtable on Children on Capitol Hill, presenting a detailed analysis [Page xi]of State policies in concealing or revealing systemic failure after the death of a child from abuse or neglect. We gave grades of A through F to each State. Regrettably, despite Federal mandates to the contrary, 20 States received grades of C– or below. Ten received an F.
We hope and pray as an American Mom and an American Dad that we will finally prioritize the rights of our children. Likewise, we hope every member of Congress, Republicans and Democrats alike, will join First Star in reforming the current child welfare and foster care systems. Their disrepair poses a high threat to our nation and to the safety and happiness of our nation's most vulnerable children. Let's nurture these kids and give them a fair chance for healthy and bright futures. What better investment can we make? If we don't do this, who are we? And if not now, when?
Note: Film producer and media executive Peter Samuelson (Wilde, Tom & Viv, Arlington Road, Revenge of the Nerds) has founded four significant charities: Starlight (1982), Starbright (1990), First Star (1999), and Everyone Deserves a Roof (2005). He teaches entrepreneurial philanthropy and is at work on a book, Giving a Damn. Peter lives in Holmby Hills with his wife Saryl and four children and may be reached at firstname.lastname@example.org.
Attorney Sherry Quirk is a partner at Schiff Hardin, LLC in Washington, DC, and has a long history of child advocacy.[Page xii]
This work addresses a special population. These more than 500,000 children have been abused, molested, or severely neglected. They have been removed from their parents. Many of their parents have been adjudicated as unfit, and the state has supplanted their authority. These children of the state now have a court, social workers, and foster care providers serving as their parents. As the pages to follow document, their prospects are not promising, for the state has been itself a neglectful parent. In a democracy, we are the state. So, dear reader, peruse these pages with special care, for they concern your children. When you hear religious zealots talk of Christ and sanctimoniously pray and invoke their special relationship with God, ask whether they know about the information in this work, and whether it comports with the Sermon on the Mount. When the political left responds reflexively to the Service Employees International Union (SEIU), ask how a child subject to constantly changing faces—social workers (represented by SEIU), judges, attorneys, foster care placements—are really served by simply more desks for the pieces of paper who become these children to the social service establishment. When you hear our public officials on the right talk about family values, ask them how they are doing with this group. They are used to talking about how the children of our nation are the children of us all, but they do not seem to fully grasp the obvious and profound difference here—these children are not ours in a cosmic or theoretical sense; they are literally and legally “our children.” So how much is this group of self-indulgent rationalizers investing in them?
These children need three things. First, we need to have fewer of them—as few as possible. So where do they come from? They come from extreme poverty, from paternal abandonment, from meth addiction. But we have seen our unwed birth rate climb from 8% to 20% to 30% and now to 37%—with nary a comment from the politically correct and relentlessly adult-centric media. For African American children the unwed birth rate is almost 70%. These are not the children of celebrities. The [Page xiv]census data about them are stark. These children live well below the poverty line, and the median income for married couple families exceeds $55,000. It is not merely a 50% gain for our children. When they have two committed parents, it is a factor of more than 400%. Absent fathers are paying child support at a rate under $70 per month per child. But we do not talk about it. Here is a revolutionary idea that this book implicitly endorses—every child has a need to be cared for by at least two people dedicated to his or her welfare and future. Maybe there will be a divorce; maybe there will be disease or death or other misfortune. But at least we postulate the attempt is worthy of praise and, indeed, of expectation.
Having changed the social ethic, we rightly follow with parenting education in our schools. Most of these children will become parents. Isn't it necessary to teach them how to protect and nurture a child—information about contraception and prenatal care, and about how children develop—how to avoid sudden infant death and brain injury from shaking a baby, and a hundred other lessons? How is such education less important than a literature course or trigonometry? I do not know about you, but I haven't used cosine or tangent formulas ever—in the 45 years since I took the course. We need not devote even an entire course to this subject—just brief modules interspersed periodically in grades 9 through 12. We do not do it.
Second, these children need a parent, preferably two parents. They need to be adopted or given guardians who have a commitment to them one on one. Every child needs to feel that there is someone who cares, someone who will stay up all night worrying if something goes wrong. The child needs the example, even needs someone to rebel against during the phased insanity of adolescence. Psychologists have a word for what happens when children lack that anchor: detachment syndrome. These foster children tell us how much it means to have a home—not an institution but a personal home. If relatives are not able to adopt, the next best bet is the family foster care provider. These families volunteer to take children into their homes. They are reviewed, licensed, and here is what happens wonderfully often—they bond. These parents are the source of most non-kin adoptions for these foster children.
But the supply of foster care families is in decline, and adoptions are increasingly rare. In fact, many states now simply label children past the cute stage of infancy as unadoptable. States need to stop shortchanging these future parents by paying them at least the out-of-pocket costs of care so that their introduction to a child is not conditioned on sacrifice of their pension or self-sufficiency. We now pay these families consistently [Page xv]30% to 50% below the out-of-pocket cost of care. Family placements are down, and adoptions are down. Instead of four or five couples competing for each child—as should be the case—we have suspicious Uncle Ned getting them because there is no other choice, or we have siblings split, and we have too many, far too many, going into institutional group homes. The real irony is that we pay those folks about eight times what we pay families to care for the children, not 8% more or 80% more, but 800% more. Increasing compensation for families who provide the care would result in more family placements, more adoptions, and much lower cost. Why, then, is this happening in so many states? Is it because state legislators failed to comprehend simple addition and subtraction skills? It seems more likely the product of group homes financing lobbyists in state capitals, leaving family foster care providers—and the children who should be in their care—dispersed, unorganized, and bereft of campaign contribution power.
Third, these children need to be more visible. Their plight as outlined in this book is only possible because in most states their situation, status, conditions, and even the judicial proceedings deciding their fate are locked in confidentiality. Allegedly, this is to protect them. Actually, it is to protect the social service establishment that—with some notable exceptions—cares for them very badly. It would be possible to allow a court to seal a proceeding or a child on petition without burying an entire system in secrecy. Ironically, most states even hide information when a child dies from child abuse or neglect—both those who are in private hands and those under their own jurisdiction. Few states (New Hampshire and Nevada) have defensible state laws ensuring disclosure of the causes of those deaths.
Note: Robert C. Fellmeth is Price Professor of Public Interest Law at the University of San Diego School of Law, author of Child Rights and Remedies (Clarity Press, 2002, 2006), and Director of the Children's Advocacy Institute.[Page xvi]
“These are the times that try men's souls.”—Thomas Paine
Thoughts on the Present State of American Affairs
“In the following pages, I offer nothing more than simple facts, plain arguments and common sense; and have no other preliminaries to settle with the reader, other than that he will divest himself of prejudice and prepossession, and suffer his reason and his feelings to determine for themselves that he will put on, or rather that he will not put off, the true character of a man, and generously enlarge his views beyond the present day.”—Thomas Paine
I give a standing ovation to the foregoing remarks, efforts, and thoughts of my esteemed colleagues, Peter Samuelson, Sherry Quirk, Professor Robert C. Fellmeth, and, of course, the sensitive first author of this important book, Professor Kathleen Kelley Reardon and her able co-author Christopher T. Noblet.
We all come from different backgrounds and experiences on the issue of the mistreatment of America's only national treasure, her children. As the only one of us to actually sentence child abusers, hear their testimony, see the photographs of their abuse, and hear the testimony of witnesses to that abuse as well as the many professionals who analyze these cases, I am perhaps more militant and aggressive then my colleagues on this issue.
Twenty-five years on the bench is a great teacher.
As the first neighbor lawyer in the Nation on the so-called “war on poverty,” I long ago discovered that we have been naive in fighting wars on poverty, drugs, and child abuse. All are doomed to failure.
The real war we should be fighting is the war on the poverty of values ensured not by the usual social worker “needs” of children but rather [Page xviii]by a transition to the “rights” of children. One hundred and ninety-three nations in the world recognize the “rights” of Children in the United Nations Convention on the Rights of the Child created under and with the input of President Ronald Reagan.
There are only two nations in the world who have not signed on to this “Magna Carta” for children: Somalia, a nation without a recognized government, and the United States, a government that does not recognize children as rights-bearing citizens. Yet there is virtual silence from our political leaders and even traditional children's “needs” organizations. Many are in my view one thousand shards of glass that are insular, shortsighted, and even vain.
Because of this book, I hope the entire political spectrum of Americans, left, right, and center might consider the following courses of action:
- The original U.S. Constitution had three genetic defects. It excluded women, African Americans, and children. The first two defects have been cured by amendments. Groups such as the American Academy of Pediatrics and American Association of School Administrators (18,000 school superintendents) support an amendment for children as have scores of other countries. We need to support this.
- Every child shall have a trained and independent lawyer represent him or her whenever that child's life or liberty is at stake in a court or agency.
- Every judge in a child's case shall be educated on the developmental levels and words of children.
- All courtrooms deciding issues concerning children's issues shall be open, unless it is clearly established that it is not in the child's best interest to do so. The judge and the child's lawyer shall state in writing why the court proceeding is closed.
- All schools shall have mandatory parenting courses.
- Each state shall have an omsbudsman overseeing its protection agency.
- The United States should ratify the UN Convention on the Rights of the Child.
“The sun never shined on a cause of greater worth.”—Thomas Paine
Note: Connecticut Superior Court Judge Charles D. Gill is a tireless advocate for the rights of children.
Childhood Denied was written to advance the advocacy of those who work with children to protect them from abuse and neglect. It takes the issues Peter Samuelson and Sherry Quirk describe in the first foreword and conveys them in language our lawmakers and people in positions to make a difference can more easily comprehend. We must take what experts tell us about the plight of children harmed each day because of a dysfunctional system and their inability to protest with votes and bring it into the light of day. We are not the first to attempt this; we hope to be the last required to do so. This book is a wake-up call to those in government who can assure that children at risk for abuse and neglect are protected, their lives saved. Otherwise, we don't deserve to call ourselves civilized.
The very idea of allowing the nightmare of child abuse to continue, hardly abated, is appalling. Surely no one thinks of himself or herself as belonging to any group that does this. But as you read what experts have to say, hear the voices of vulnerable children at risk, learn how long this tragedy has been going on, and understand how a few good people pressuring those in the right places could turn it around, you will wonder why so many children suffer so much on our doorsteps. You will read the impressive, relentless efforts by those in the media who've tried to open our eyes and our hearts and provoke us to action. They and child advocates everywhere keep banging at the door of change with success here and there but the travesty mushrooms around them. They need our help. This book is a call to provide it.
We attempt here to educate not by reviewing all the research and writings out there but by highlighting some of the efforts that clearly articulate the nature of the problem, why it continues, and much of what we must do now to make significant changes. We need to make them for children like Frankie, one of the first children Kathleen met during research for this book. That's what we need—to have children who've been victimized by abusers and neglected and those at risk for the same on our minds until we provide them the protection and love they, like all children, so richly deserve.
We are grateful to many people, especially those with First Star, who have helped us comprehend and express the issues preventing children at risk for abuse and neglect from receiving the protection they deserve—the protection we adults owe to them but so often fail to deliver.
We especially wish to thank Peter Samuelson for believing in this project, in fact nudging us into it in his inimitable, subtle way, from start to finish. Peter's dedication to improving the lives of children through Starlight, Starbright, and, with Sherry Quirk, First Star has been nothing short of remarkable. He is truly a man who has given back many times over and continues to do so everyday.
We'd like to thank several people at First Star: Debbie Sams for her work in connecting us to experts, working with us in the early stages on key concepts, and helping in many other ways. Erika Germer and Whytni Kermodle Frederick worked diligently on permissions, sending us articles and contacting experts in advance of interviews. Amy Harfeld became First Star Executive Director in time to be there for us in coordinating the tying up of loose ends and keeping us informed of First Star research.
Our thanks, too, to Connie Noblet, who interviewed Darlene Allen of Adoption Rhode Island and shared with us not only what was said in the interview but also what she learned about challenges in our quest to better protect children.
We're grateful to Kassie Graves, editor at SAGE Publications, who has been there in every way, as has Veronica Novak. Also at SAGE, we'd like to thank Kristen Gibson, Laureen Gleason, Helen Glenn Court, and Carmel Schrire.[Page xxiv]
First Star sent these Sense of Congress letters to the U.S. Department of Health and Human Services to ensure that the HIPAA legislation would be correctly interpreted across the country and those representing children would not be prevented from accessing their child clients' health care records.
[Page 212]February 13, 2004
America's children are suffering at the hands of a failing system. In 2001, 903,000 children were victims of child abuse and neglect, and 275,000 of those cases were placed in foster care. Tragically, 1,300 children died from the abuse they suffered.
As Members of Congress who are dedicated to the protection of our nation's most vulnerable children, we would like to inform you of two separate sign-on letters, addressed to Secretary Tommy G. Thompson of the U.S. Department of Health and Human Services (HHS), which requests a clarification of language used in two pieces of legislation passed by Congress: the Keeping Children and Families Safe Act of 2003 and the Health Insurance Portability and Accountability Act (HIPAA).
More specifically, we ask that HHS elaborate, with instructional guidance, on Sections (b)(2)(A)(viii) and (xii) of the Keeping Children and Families Safe Act of 2003. Clarification is needed on the former section's requirements for the disclosure of confidential information among those with “a need for such information in order to carry out its responsibilities under law to protect children from abuse and neglect.” Meanwhile, we request HHS elaboration on the latter section's definition of “training appropriate to the role” to any individual appointed by any court to represent a child in a dependency hearing. A second letter to Secretary Thompson addresses the effect of the Health Insurance Portability and Accountability Act (HIPAA) on child abuse and neglect victims and the systems designed to protect them.
Should you need more information, please feel free to contact Rosalea Orozco in Rep. Sanchez's office at x52965 or Tony Eberhard in Rep. Emerson's office at x54404.
U.S. Representative Loretta Sanchez
U.S. Representative JoAnn Emerson
[Page 213]The Honorable Tommy G. Thompson, Secretary
U.S. Department of Health and Human Services
200 Independence Avenue, S.W.
Washington, D.C. 20201
Dear Secretary Thompson:
We, the undersigned Members of Congress, write to express our desire for important clarification with regard to policy implementation at the state level as it relates to certain provisions of the recently amended Child Abuse Prevention and Treatment Act (CAPTA).
Specifically, we ask that the Department of Health and Human Services elaborate, with instructional guidance, on Sections (b)(2)(A)(viii) and (xii) of the Keeping Children and Families Safe Act of 2003 (“the Act”), addressing respectively the disclosure of confidential information among those with “a need for such information in order to carry out its responsibilities under law to protect children from abuse and neglect,” and the provision of “training appropriate to the role” to any individual appointed by any court to represent a child in a dependency hearing.
Section (b)(2)(A)(viii): We understand that abused and neglected children, as well as the nation's health on the whole, benefit from an environment of openness and a system that provides for thorough sharing of all information potentially relevant to the child or case at issue, including but not limited to records that might otherwise be considered confidential. Adopted in 2003, the Act requires state Child Protective Services (CPS) to “disclose confidential information to any Federal, State, or local government entity, or any agent of such entity,” that has a legal responsibility to protect children. There is an immediate need for HHS, through policy guidance or regulations, to clarify standards for the states regarding (a) the types of agencies and agents that need to receive information; and (b) the scope of information to be provided. We hope that HHS will act quickly to ensure that such information sharing begins and is enforced with the strength the nation's children deserve.
Section (b)(2)(A)(xii): Additionally, the Act amended CAPTA by requiring that states receiving CAPTA grants provide “training appropriate to the role” to any individual appointed by the court to represent children in abuse, neglect and dependency hearings. We wish to clarify to HHS that by including this language it was our intent to ensure that every person, attorney or non-attorney, appointed by the court receives [Page 214]adequate and significant training, and that failure to provide for such training or the appointment of any individual lacking such training would be a violation of CAPTA and result in the forfeit of CAPTA funds. We hope that HHS will act quickly to alert the states, through policy guidance and regulations, that no court in any state receiving CAPTA funds may appoint a person (Attorney Ad Litem, Guardian Ad Litem, Court Appointed Special Advocate, or other) to represent a child without that person having first received training appropriate to the role.
We further request for an underscore of the importance of the training itself. We urge HHS to encourage states to adopt policy guidelines and regulations, and offer to the states technical assistance in determining what degree of training meets the substantial caliber of professionalism envisioned by Congress in crafting this legislation to protect our most vulnerable constituency, our children.
Thank you for your time and consideration of this important request.
[Page 215]The Honorable Tommy G. Thompson, Secretary
U.S. Department of Health and Human Services, Office for Civil Rights
200 Independence Avenue, S.W.
Room 509F, HHH Building
Washington, D.C. 20201
Dear Secretary Thompson:
We, the undersigned Members of Congress, write to express our desire for improved clarification with regard to the effect of the Health Insurance Portability and Accountability Act (HIPAA) on child abuse and neglect victims and the systems designed to protect them. Regulations promulgated under HIPAA have resulted in inconsistent and uncertain results for abused and neglected children across the United States.
Of key concern to us is the conflict between HIPAA and the Child Abuse Prevention and Treatment Act (CAPTA). This summer, the Keeping Children and Families Safe Act of 2003 amended CAPTA by requiring state agencies to “disclose confidential information to any Federal, State, or local entity, or any agent of such entity, that has a need for such information in order to carry out its responsibilities under law to protect children from abuse and neglect.” Recognizing that children in abuse and neglect cases benefit when those working on their behalf have a more thorough understanding of their health (including mental health), educational and social services histories, the amendment reversed previous policy that cautioned against sharing such information. The inconsistency between this recent policy and HIPAA regulations raises questions concerning the basic access of state Child Protective Services (CPS) to health information and the access of others to information contained within CPS files.
Insofar as this conflict frustrates efforts to protect children already at risk in the child welfare system, we ask that the Office for Civil Rights act with due speed to clarify HIPAA and recognize the Congressional intent of the Keeping Children and Families Safe Act. Ideally, such guidance from the Office will instruct that nothing in HIPAA be construed to impose barriers to the exchange of information afforded by CAPTA or other legislation. It is our opinion that child abuse-related health information must be freely shared with those working to protect, to diagnose, [Page 216]and to treat abused and neglected children. The privacy regulations must not endanger these efforts.
Thank you for your attention to this important request.
About the Authors[Page 231]
Kathleen Kelley Reardon is professor of management at the University of Southern California's Marshall School of Business, where she has served on the preventive medicine faculty. She is the author of seven books, including the Amazon best-seller The Secret Handshake and It's All Politics, which addresses the impact of politics on the careers of individuals and missions of organizations. She is the author of Persuasion in Practice (SAGE) and is a three-time Harvard Business Review author; her latest article was “Courage at Work.” She was co-principal investigator and author on the feasibility study that launched Starbright, later chaired by Steven Spielberg and conjoined with Starlight. Dr. Reardon was inducted into Phi Beta Kappa, Phi Kappa Phi, and Mortar Board; received her PhD from the University of Massachusetts, Amherst; and has been a political analyst with the Huffington Post (http://www.huffingtonpost.com).
Christopher T. Noblet is a professional writer and editor. He is currently co-authoring a book on strategies for patients to obtain excellent health care. He has worked as journalist, newspaper editor, speechwriter for the chairman of Transamerica Life Companies, book editor, and in public affairs, marketing, and public relations. His BA and MA degrees are from the University of Connecticut, and his MBA degree is from the Marshall School of Business at the University of Southern California.