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Children with disabilities in residential and therapeutic facilities are among those who are most vulnerable to abuse and other forms of harm. Protecting the safety of children and the facilities where they reside from costly litigation is achievable through proper policies, training, supervision of staff and students, and continued proactive efforts to reduce risks. In risk research, it is generally accepted that the greater the number of risks, the greater the likelihood of negative outcomes. If not proactively identified and mitigated, these risks can increase the likelihood of negative outcomes, including death, injury, and sexual and physical abuse of children with disabilities by peers and adults.

Examples of such risks include leaving a child unsupervised in a residential facility kitchen stocked with cleaning solutions and knives; leaving medications in the nurse’s station unsecured; allowing unsupervised access to swimming pools; inadequate supervision of children in their residence at night; neglecting rumors of sexual misconduct among residents or between staff and residents; and failure to implement individual education and health plans. Any of these risky situations can result in harm to a child and a costly civil lawsuit against the organization.

Higher risk for abuse of children with disabilities in residential facilities

Nearly 200,000 children and youth reside in residential care in the United States, and nearly one third are diagnosed with a disability (Trout et al., 2009). Residential settings in the United States and Canada for children with disabilities provide housing, education, medical, and other services for children whose long-term behavioral, psychiatric, medical, or other needs exceed what is available in their school district and at home. Because children live in these facilities and not at home, the adults employed to provide their care are acting in place of the parent, or in loco parentis. The children’s daily dependence on these adults for a variety of services and care, combined with their disabilities, exposes those who live and attend school in these facilities at a greater risk of harm.

The Vera Institute for Justice, an independent not-for-profit national research-and-policy organization, reports that children with disabilities are three times more likely than those without disabilities to be sexually abused (Smith & Harrell, 2013, p. 1). The Arc, an advocacy organization for persons with disabilities, provides research-based information on the vulnerability of children with disabilities and the difficulties with reporting and discovering the abuse (Davis, 2011). Federal, state, and provincial laws form the basis for policies at the institutional level, and administrators of these facilities have a duty to adhere to these standards to provide children with a safe setting where they can learn, grow, and thrive. If the professional standard of care is breached and harm is caused to a child, the facility may face lawsuits and be liable — not only for injuries to a child but also for civil rights violations.

Training to prevent child abuse and sexual abuse of children with disabilities in residential facilities

When faced with a negligence suit, a facility must be able to demonstrate that it met the professional standard of care. For example, it is common knowledge in the field of education that some children, because of their emotional or psychological issues, may overreact in certain situations in which they feel challenged, overwhelmed, or frustrated. This may lead the student to respond with negative behaviors, such as aggression toward staff and others, refusal to comply with staff instructions, or elopement. Mandatory annual training for employees on preventing, recognizing, and responding to such behavior is essential and considered part of the professional standard of care. Employees should also receive training on issues related to child abuse, including abuse of children with disabilities, such as how to recognize warning signs that a child may be a victim of abuse, prevention techniques, and reporting. The facility must provide specific training focused on the overall needs of the population, as well as those of individual children in the facility. State and provincial licensing agencies often require this training.

Residential facilities that care for children with learning or behavioral problems typically require teachers, counselors, and other specialists to have appropriate degrees from accredited colleges or universities in such areas as special education, student counseling, physical therapy, and occupational therapy. However, even when a staff member has such a degree, there is no guarantee that the person understands the origin of a child’s behavioral issues or how to de-escalate tense situations before they blow up. Providing staff with the tools necessary to recognize a child’s unique behavioral issues and protecting children and others from potentially dangerous situations requires training beyond a degree in education or child behavior. Programs such as those provided by the Crisis Prevention Institute (n.d.) should be part of a residential training program. This program focuses on prevention through de-escalation techniques. Communication is a key factor in de-escalating any situation. Nonviolent Crisis Intervention equips staff with the decision-making skills needed to confidently assess and address risk on the spot. It combines verbal intervention strategies and restrictive interventions with advanced physical skills for high-risk scenarios. Many of the cases that we have handled at School Liability Expert Group claim that the facility is liable for harm done to a child because it did not foresee high-risk behavior and failed to train staff to act in an effective way. An inadequately trained staff member may overreact to a perceived threat and engage in physical contact with a student, resulting in severe harm or even death to the child. If the facility lacked appropriate procedures for dealing with high-risk scenarios and failed to provide adequate training, the facility may be held liable.

Implementation of Individualized Education Programs and Individual Health and Service Plans to prevent abuse of children with disabilities

There are two main systems that guide the interactions and interventions between staff and residents: the Individual Education Program (IEP) and Individual Service Plan (ISP). These provide comprehensive information based on professional evaluations as well as a blueprint for meeting the needs of the child.

The IEP describes the educational needs of a child who attends the school component of the facility. It identifies the child’s intellectual capacity, curricular needs, and behavioral interventions and must be calculated for the child to benefit from an education. An inadequate IEP that does not identify the educational needs or emotional/behavioral interventions necessary to provide the student with a safe environment can be used to demonstrate a breach of the professional standard of care, and thus might be the contributing factor in the alleged abuse or harm of a child. For example, if the IEP requires the school to provide a program of social-skills training for the student consisting of three, 30-minute sessions per week, failure to do so can contribute to a claim of negligent provision of services. A nexus between failure to provide services required in an IEP and harm to the student or others is very strong and may result in liability on the part of the facility.

An ISP is based on the child’s daily care requirements. At a care plan meeting, staff talk with residents and their families about life in the facility — meals, activities, therapies, personal schedules, medical and nursing care, and emotional needs. Residents and families can bring up problems, ask questions, or offer information that can help staff provide care for the resident. The ISP is written documentation of the specific supports, activities, and resources required for the child to achieve personal goals. The plan is developed to articulate decisions and agreements made during a person-centered process of planning and information gathering. For many children in residential facilities, an ISP requires individual psychological counseling or psychiatric services.

The ISP is the umbrella plan; the IEP fits under that plan as the educational/school component. The IEP is developed by the school district that contributed to the decision to place the child in a residential setting and focuses on the educational component of the placement. Both the ISP and IEP must be compatible with each other for the student to progress in a safe environment that is free from abuse and harm.

Requirements for services articulated in the IEP and ISP are part of the professional standard of care. When such services are not met or are ineffective in meeting the needs of the child, or if a connection can be made between harm to a child and failure to meet professional standards of care, there may be sufficient evidence to show that this breach of professional standards directly contributed to harm.

Supervision of employees to prevent child injury and abuse of children with disabilities at residential facilities

For a residential facility to demonstrate that the professional standard of care has been met, adequate supervision of staff who interact with children with disabilities is essential. Once the facility has adequately trained its staff to address the risk issues that are known among students in this population, those employees must be appropriately supervised. Appropriate supervision includes not only line-of-sight observation and regular supervision of staff who interact with students, but also staff scheduling, child-to-staff ratios, and other elements that define adequate, round-the-clock student supervision. Take, for example, a facility that requires that two trained staff be present at night to supervise 12 students with acting-out behaviors. If one staff member does not show up one evening, then the facility has breached its own policy and supervision of the staff was a failure. The administration must be aware of risks like these to students and implement mitigation strategies to keep them safe. They must also structure staff responsibilities, observe and evaluate staff on a regular basis, give feedback and provide re-training if necessary, and respond quickly to any reports of staff misconduct, including allegations of physical or sexual abuse of children with disabilities.

Adequate supervision requires that the administration respond quickly and thoroughly to any allegation of mistreatment by staff that places a child in harm’s way. Being well versed in the duties and responsibilities of adults in charge of children under state and provincial child abuse-and-neglect laws, federal Office for Civil Rights laws (including Title IX, which prohibits sexual harassment in an educational setting), Section 504 of the Rehabilitation Act of 1973 (prohibiting discrimination based on disability), and the Americans with Disabilities Act (prohibiting discrimination and denial of public benefits) are most important when developing and implementing an adequate staff supervision program. If a staff member violates the rights of a child by sexually abusing a resident, the administration must know how to respond and how to mitigate its risk of being sued for negligent supervision of staff.

Proper supervision minimizes risks of abuse of children with disabilities

Adequate supervision of children at these facilities is critical because of their vulnerability to abuse and their behavioral propensities. Adequate supervision involves both training and supervision of those who interact with children. The physical site of the residential facility itself often creates challenges for supervision and must be assessed on a regular basis with an eye toward risks of harm and/or abuse of children with disabilities. For example, outdoor space for play equipment must be arranged so that caregivers can adequately supervise children at all times. When a child’s history includes aggression, self-harm, or elopement, line-of-sight supervision is required. On the campus, in buildings, at the swimming pool, or outside on recreational equipment, supervisory staff must “have eyes on” all children and be able to intervene quickly if a resident is seen placing himself or another child in harm’s way. The IEP and ISP for a child should include the supervisory conditions necessary for the child to remain safe. If a staff member with responsibility for supervision is not aware of provisions in either plan, is not adequately trained on how to implement supervision, or not adequately trained on how to observe and monitor risk in residential facilities, then children may be placed in a situation that otherwise would not have existed if these elements were met.

For example, staff who supervise children at an outdoor setting, on a class trip off campus, or on an overnight excursion should never be distracted, must know the propensities of the children being supervised, and must be trained in how to intervene when necessary to keep a child safe. Knowing that a student has in the past eloped from a defined play area or from the school or living quarters requires diligent attention to that child. Knowledge of prior incidents creates foreseeability; however, lack of adequate supervision and care can foreseeably lead to a variety of harmful situations — even if there were no prior incidents.

Summary

When a lawsuit is filed against a residential facility for liability because of negligent training or staff supervision or negligent supervision of children, one of the best defenses is for the facility to demonstrate that it met the professional standard of care. This standard covers all aspects of its operation, including properly developed policies and procedures, effective training and supervision of employees, proper implementation of IEP and ISP plans, and vigilant care and supervision of children with disabilities in residential facilities.

For additional information please see our 2016 post: In Loco Parentis: Duty of Educators and Professionals in Residential Programs for Children.

References

Crisis Prevention Institute. (n.d.). Retrieved February 7, 2022, from https://www.crisisprevention.com

Davis, L.A. (2011, March 1). Abuse of children with intellectual disabilities. The Arc. http://www.thearc.org/wp-content/uploads/forchapters/Child%20Abuse.pdf#:~:text=Studies%20show%20that%20rates%20of,National%20Research%20Council%2C%202001).&text=Children%20with%20any%20type%20of,compared%20to%20children%20without%20disabilities.

Smith, N., & Harrell, S. (2013, March). Sexual abuse of children with disabilities: A national snapshot. Vera Institute of Justice.
https://www.vera.org/downloads/Publications/sexual-abuse-of-children-with-disabilities-a-national-snapshot/legacy_downloads/sexual-abuse-of-children-with-disabilities-national-snapshot-v3.pdf

Trout, A.L., Casey, K., Chmelka, M.B., DeSalvo, C., Reid, R., & Epstein, M.H. (2009). Overlooked: Children with disabilities in residential care. Child Welfare. 88(2),111-36. PMID: 19777795