After years of public pressure, a high-profile death of a child and the nation rising up in protest over police brutality, New York’s state child welfare agency is preparing to ban disciplinary tactics for foster youth that advocates have described as “dangerous and barbaric.”
In a series of proposed rule changes that could take effect early next month, the Office of Children and Family Services (OCFS) seeks to bar foster care service providers from deploying controversial “prone” or face-down restraints.
The new rules would also prohibit isolating children in their rooms, step-up regulations for individualized treatment, including expanded HIV testing, and require “continuous quality improvement” in agencies caring for young people in government custody.
Legal advocates for children praised the restraints rule change.
“While we hope that OCFS will soon ban the use of all physical restraints on children in foster care, prone restraints are particularly dangerous, potentially deadly and should never be permitted,” said Karen Freedman, executive director of the nonprofit Lawyers For Children.
A statement from the Legal Aid Society praised Gov. Andrew Cuomo and his administration “for making the right and moral decision to eradicate this practice for good.”
If the rules are formally adopted after the current public comment period closes Jan. 2, any use of physical restraint in state-licensed foster care facilities would require a subsequent medical evaluation, regardless of whether the child was injured. Foster care agencies would be required to quickly notify the child’s parents and attorney that a restraint had been used.
The Office of Children and Family Services made the proposed rule changes public two weeks ago, and they were first reported Monday by The City news outlet.
Pressure on New York and other states to prohibit the use of facedown restraints on foster children has been building since April, when seven staff members at the Lakeside Academy residential treatment program in Michigan pounced on 16-year-old Cornelius Fredericks and smothered the young Black teenager, as he cried out “I can’t breathe.” Cornelius died of cardiac arrest two days later, and his killing, captured on videotape, drew parallels the next month to the police killing of George Floyd. Both Cornelius and Floyd were restrained face down, in Floyd’s case with a Minneapolis police officer’s knee pressed to his neck.
In an emailed statement, a Children and Family Services spokesperson emphasized its “ongoing transformation” of the state’s child welfare system to better recognize trauma experienced by the more than 17,000 youth in foster care statewide, including 2,600 living in group facilities as of late September.
“Adoption of these regulations will codify our focus on crisis de-escalation and non-physical interventions,” said Jeannine Smith, the agency’s deputy director of communications.
The 17-page proposal would “eliminate the authority” of child welfare agencies to use “room isolation” and “prone holding techniques as a form of restraint,” according to the New York State Register of rule-making activity, released on Nov. 18.
Other types of restraints, such as when a child is held “supine” or on their back, would still be permitted when children are considered a danger to themselves or others. But the state wants foster care agencies to plan for and provide “comprehensive behavioral health services,” to avoid such scenarios, including developing an “individualized crisis intervention plan” for each child in a congregate care facility.
For some young people, the rules may have come too late. A grand jury has been convened to consider the case of a New York City teenager left paraplegic in April 2019 by the type of prone restraint soon to be prohibited, according to Lawyers for Children, which had been representing the boy while he was in foster care. The firm has declined to provide further information on the confidential case, and The Imprint’s request for public records to the state has so far been denied.
In a July email, however, a spokesperson for the Westchester County District Attorney’s Office confirmed the outlines of the boy’s case, stating that there is an “ongoing investigation about which we cannot discuss details.”
Meanwhile, calls have been growing in New York to take action against forcing children’s faces to the floor.
Last summer, in the wake of Cornelius’ death, the Legal Aid Society sent a letter to Gov. Cuomo and the state’s child welfare commissioner, Sheila Poole, calling on the administration to ban prone restraints. The letter highlighted the Westchester incident last year, and it pointed out that Children and Family Services allowed facedown holds to be used on foster children, even though other state agencies governing schools, mental health facilities and programs for people with developmental disabilities barred the practice.
After a 2009 investigation of conditions inside four Children and Family Services’ youth detention facilities, the U.S. Department of Justice also warned the state’s use of prone restraints come with a high risk of serious injury or death.
David Collins, chief program officer for the nonprofit Children’s Village, which houses and provides services for children and families, said he supports the changes but is waiting to see how the rule changes will be implemented for agencies that work with the vulnerable children every day.
“We do think moving away from prone restraint is a good idea,” Collins said, but added: “It’s really all going to be in the details.”
Echoing other nonprofit providers of services for foster children, Collins emphasized that the use of physical restraints is rare, and other physical holds that carry risks will remain legal. Preventing their use altogether — by de-escalating incidents before youth are out of control and increasing opportunity for counseling and behavioral health care — remains the most effective, safe and humane practice, he and others said.
The Office of Children and Family Services acknowledged that the public response to a slate of proposed new regulations — which it has been considering since last year — prompted the inclusion of restrictions on prone restraints and room isolation.
“Several commenters requested that The New York State Office of Children and Family Services ban the use of prone restraints in all licensed programs,” reads an assessment of public comments Children and Family Services included in the State Register released last month. “We concur, changes were made.”