Oregon bill would again allow foster kids to be sent out of state

A foster care bill in the Oregon legislature is controversial, but unlike other hotly contested issues, it’s not one that breaks along party lines. House Bill 3835 would allow kids in the child welfare system to be sent out of state to receive services — a practice Oregon stopped several years ago after documented incidents of abuse. Democratic governor Tina Kotek has publicly spoken in favor of the bill, and it’s sponsored by Rep. Rob Nosse, D - Portland. But Sen. Sara Gelser Blouin, D - Corvallis, is among those in her party who vehemently oppose it. We hear from both lawmakers to get their perspectives on how the bill would — or would not — meet the needs of some of Oregon’s most vulnerable children.

Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. A foster care bill in the Oregon Legislature has proven to be controversial, but unlike a lot of other hotly contested issues, this is not one that breaks along party lines. House Bill 3835 would allow kids in the child welfare system to be sent out of state to receive services – a practice Oregon stopped several years ago after a number of documented incidents of abuse. The bill was sponsored by a Democrat, State Representative Rob Nosse from Portland. And Democratic Governor Tina Kotek has testified in favor of it. But State Senator Sara Gelser Blouin from Corvallis, another Democrat, is among those in her party who vehemently oppose it.

We’re going to hear from both sides today. We start with the bill’s sponsor, Representative Rob Nosse. It’s good to have you back on the show.

Rep. Rob Nosse: Dave, thanks for having me. Happy to be here.

Miller: So this bill does a couple different things, but the provisions that have gotten the most attention are the ones that would make it easier for Oregon’s child welfare system to send kids who are in the foster care system to facilities in other states. For listeners who may not be aware of our state’s pretty recent history, can you remind us why these transfers were such a serious problem not that long ago?

Nosse: The transfers were a problem, Dave, because some of the placements that we made – maybe a lot of them, for that matter – ended up being in places where I think we all agreed they were not good placements. The care that was received, the treatment that was received, was not to the standard that any of us would want to adhere to. And that was exposed and uncovered, and then led to regulation and legislation to try to address it.

This bill, that part of it, is not going to allow for placement of ongoing services and support for kids in the foster care system. The bill that we’re gonna be working on is about sending somebody out of state for medical treatment and then requires them to come back once that medical treatment is completed.

Miller: Given that recent history though, why are you pushing for this change? Why do you think this is necessary now?

Nosse: Well, what we found is that there are times when we don’t have the treatment in the medical facilities in this state that are needed for the kind of profound abuse that some of the kids in the foster care system have experienced. So, for example, there’s not that many in this space, but we had a kid with anorexia nervosa. There was not a facility, a hospital, in Oregon that was prepared to offer the kind of treatment that that kid in the foster care system needed. If they weren’t in the foster care system and they were just on Medicaid, the Medicaid system would have been allowed to send them out of state to a place that was better able to serve them. But because they were in the foster care system, we could not send them out of state. So that’s what this bill is attempting to correct. That’s one piece of the bill.

Miller: For that case, for example, there are places in Oregon where children with serious eating disorders can go to get treatment, but you’re saying that a bed wasn’t available in this particular case?

Nosse: It was more like the hospital or the place that treatment [was held] didn’t feel like they could serve the kid, and that’s in part also based on the regulatory system that we exist in.

Miller: Can you explain the basics of how the state’s rules would change if this bill were to go forward? I mean, what’s currently allowed in terms of out-of-state transfers and what would be allowed if this bill were to pass?

Nosse: So let’s do that part first, since you’ve delved into that part. We would be permitted to send a young person in the foster care system out of state to receive medical treatment when physicians and folks in the child welfare system deem that it is necessary and appropriate. There’s parameters around that, of course, because we’ve had bad experiences with that.

But again, this is not about placement. This would not be the place where that foster kid would live in an ongoing way. This is about getting life saving medical attention that they need when medical providers deem, hey, the level of care that we can have here in the state is not available, and we need, out of medical necessity, to be able to send this person to a nearby state somewhere else to get the care.

We also address it with regard to tribal sovereignty. We want to make it crystal clear that if you’re a kid in the foster care system and you’re a member of a tribe, and the tribe would prefer that you receive care in your community in another state, that that’s going to be allowed as well.

Miller: You said a nearby state. It’s a 100 page bill, so forgive me for not knowing all the details of it. But is that actually explicitly mentioned in the bill that we’re talking about, in nearby states?

Nosse: It does talk … it sets the parameters, like for example, if you’re on the Idaho border, you’re in Ontario and there’s treatment in Idaho, you could go there. If you’re up in Umatilla and there’s treatment in the three cities area in Washington, we would be allowed to send you there. But for example, that kid with anorexia nervosa, I believe the treatment was in Arizona. We do contemplate, if that’s the best place to go and a bed is available, that you’d be able to do that.

Miller: So let me turn to one of the big issues that a lot of people have brought up. Given the recent history that we talked about, with various documented cases of abuse or neglect, sending Oregon kids away out of sight of the state of Oregon, why should the Department of Human Services be given the benefit of the doubt with a bill that would make it easier, once again, to send Oregon kids to out-of-state facilities? Even given what you’re saying, that we’re not talking about placement here, housing; we’re talking about medical treatment.

But the point that a lot of opponents have made is, I don’t know that I trust DHS, if they’re going to be sending kids very far away from their regular oversight.

Nosse: So again, when that is contemplated, DHS doesn’t just get to do it. They’ve got to consult with a medical professional and a judge to be able to get permission to do it. And then we’ve also put requirements in place that there’ll be checks and evaluation of the facility. So it’s not just a carte blanche, like the department gets to do whatever they want. There’s sideboards around it.

Miller: Is there money set aside for the new oversight that the bill requires? I mean, one of the things – and maybe this has changed in one of the recent amendments – is that there’d have to be in-person visits every 15 days and more people to actually be going to Arizona, Idaho or wherever. Is there money for that?

Nosse: Yes. We’re not talking about a lot of humans that are in this space, OK? This is maybe 20, 30 kids a year that we need to send somewhere else, again for treatment, not for placement. The bill is still in Rules. It will have to go to Ways and Means if it makes it out of the Rules Committee and be evaluated for budgetary purposes. But I’ve not heard flags from the agency or from advocates that this is something that the state of Oregon cannot afford. It’s really about changing the regulatory approach more than it is changing the financial and staffing approach.

Miller: How much support have you seen for this bill from current or former foster children or direct advocates for them, as opposed to people who work within or for the child welfare system?

Nosse: The System of Care Advisory Council that brought this bill forward has, as part of its constitution – its milieu, its makeup – folks, as we like to say around here, with lived experience. So I feel like, over the decade that I’ve served in the legislature, we’ve tried really hard to have more folks with lived experience advise experts and clinicians about what to set up.

Miller: But have you heard directly from current or former foster youth saying this is a good idea?

Nosse: I have not actually met with any foster youth about this bill. No, they haven’t reached out.

Miller: I want to turn to another part of the bill. Can you explain just the basics of how the use of restraints and seclusion would change? This is another piece of the bill that’s gotten a fair amount of pushback.

Nosse: Yeah, and I don’t really understand the deep pushback. So we are changing the definition, going from “severe bodily injury” to “serious physical harm.” And I’m not an expert in this, Dave, OK? But what I’ve been told is that changing that definition aligns with nationally recommended standards and training materials. This would conform our statutes to what’s used in 49 other states or something close to that, right? Ensures that we follow training and standards. I think the important thing is, what we’re trying to do is establish a standard so that workers in this state actually want to work in this field and don’t feel like if they do something that is therapeutic for safety that they’re going to be turned in as child abusers.

So if you’ll just give me a minute, here’s the main thing that I think that your listeners need to understand. Our regulatory system is incredibly complex in this space. And it probably needs to be because these are some of the kids that have the most challenges and the most need. We’ve gone from having 90 licensed facilities to treat kids in the foster system, where they need 24/7 residential back in 2014, to 53 facilities in the year 2024.

At the same time, we’ve gone from having programs that help foster parents and support them with behavioral health challenges with kids that they’re serving … we’ve gone from having 31 programs in 2014 to 14 programs in 2024. And what the people that are helping me with this bill – the SOCAC, the advisors – are telling me is that the regulatory system that we’ve had in place for a decade is discouraging people from wanting to do this work. So we’ve got to make some changes.

Miller: Wait, just so I understand the connection that they’re drawing or that you’re drawing there – one of the arguments is that the decrease in treatment options or facility options for youth in the foster care system in Oregon is because workers are afraid that they will be accused of abusing children, because of the way that the current laws are written?

Nosse: If your listeners want to nerd out on this, I’d encourage them to go on the legislative website, watch the hearing from May 12 and watch the executive director of Trillium talk about what it’s like for someone in her facility, doing very difficult work, to have to report all the time. If they interrupt a situation where, let’s say, two young people at the facility are engaged in a fight … this happens, right? So the worker has to make a split level decision about how to engage and break up that fight. And maybe in the process of breaking up that fight they are harmed, they incur some injury or one of the young people does that they’re trying to help. Because they were breaking up a fight, that is, under the current system, required to be investigated and deemed child abuse until it is investigated and ruled otherwise.

So, we have flipped the regulatory system in such a way that you’re presumed guilty until you have a chance to prove your innocence. That is a very difficult work environment to sustain in. Who wants to work in a place where you have to make a split level judgment about what to do to maintain safety, and because you intervene, you’re deemed a child abuser until proven otherwise? I think that’s wrong and I think most of your listeners would understand that that’s the wrong approach as well. And by changing the definition, that’s one of the things that we hope to address and fix.

Miller: I want to go back to what you were saying at the beginning, and I think maybe the thread that ties the different provisions of this bill together, which is a lack of both treatment options and other service options for the most vulnerable young people in Oregon. And you have said that quote, “Until we create an environment where Oregon is no longer among the worst in the nation for behavioral health access, we must continue to vehemently advocate for children to get the care they need wherever it is available.”

That’s sort of the short encapsulation of your defense of this bill. So I don’t think anybody’s saying that the best solution is to send Oregon kids to Missouri or …

Nosse: One hundred percent.

Miller: So, what do you think it would take to increase behavioral health care for kids within Oregon?

Nosse: In addition to changing the regulatory approach – which we’re doing with if this bill passes, with 3835 – we also need to, frankly, make it easier to get educated and trained at our universities and our community colleges. Frankly, make it more affordable, right? We need to pay better so that this work is attractive, so that you can earn a living wage and support a family. And thus, stay in the profession, and gain the experience and the professional judgment so you stay there, do the work and develop the muscle memory. Instead of what happens a lot of time, which is we have the people with the least experience doing entry-level work with the most significant need, in terms of humans that are in the system. And they move on to get a better paying job. They go get more education and frankly, they get to work with situations that are less difficult.

Then frankly, we also just need to spend a lot more money making facilities, organizations and agencies available to do it. We’re 49th in the country for access both for adults and for children for behavioral health treatment. So we have nowhere to go but up. Our budgets are tight this session, so we’ll see if we can make more progress in that regard. But changing the regulatory approach, which we do with 3835, is a key piece of this as well.

Miller: Rob Nosse, thanks very much.

Nosse: Dave, thanks for having me. I really appreciate being here.

Miller: Rob Nosse is a Democratic state representative from close in Southeast and Northeast Portland.

For a very different perspective on this foster care bill, I’m joined now by Democratic State Senator Sara Gelser Blouin, whose district includes Corvallis, Albany and surrounding areas. State Senator, it’s good to have you back on the show.

Sen. Sara Gelser Blouin: Thanks so much for having me.

Miller: I want to start with the point that Rep. Nosse made repeatedly, that this is about medical treatment, not placement. What’s your response to that point that, for him, I think loomed really large in this debate.

Gelser Blouin: Thank you. And I believe that is absolutely the intent. I think those that support and oppose the bill want to make sure that we get kids what they need and that we keep kids safe.

The concern that I have with House Bill 3835 is that’s not what the language of the bill actually says. The bill does not require that these be medical facilities. It does not require that a physician direct that. It does not require that the services in that out-of-state placement be provided by a licensed health care professional or that it be directed by a physician. And the approval from the judge is after the fact. The child can be sent to this other state before the court approves.

Miller: So what’s the scenario that you think could lead to an Oregon youth who’s in foster care being sent out of state as a result of this bill, that you think could happen but shouldn’t happen?

Gelser Blouin: The way that this bill is written, every single placement that was made prior to 2020 could be made under this bill into every single facility that a child was placed under this bill. And it would be with less oversight and fewer protections than were put in place once the state started to recognize the problems that we had in the programs. Even with that enhanced oversight, we still had significant issues with these kids. And the problem is, it wasn’t just a few kids, it was most of the kids that experienced serious harm, witnessed serious abuse, had serious violations of their rights, and there was no treatment provided. These were group homes.

Miller: So I’m curious, what about the oversight that Rep. Nosse mentioned? You’re saying that this would actually be less oversight than existed at the end, after there was a lot of public attention paid to this. What’s wrong with the oversight that is actually spelled out in this bill?

Gelser Blouin: This bill disregards all of the protections that were put both in statute and in rule back in 2019. For instance, this bill does say that the child welfare director has to approve an out-of-state placement, but it allows for delegation. In 2019, the child welfare director had to approve that out-of-state placement. And a determination was made based on recommendations from a consultant – it was a multi-million dollar contract – that that not be delegated. There needed to be a single point of authority. The second part is that ODHS sent their folks out to do initial licensing, and after January, those did become licenses. We have licensed out-of-state programs. The licensing is eliminated.

The other thing that is eliminated is the requirement to have a contract or to have the very specific provisions that we are required to have in the contract. And what we learned last time is that to keep kids safe and have authority to enforce our rules, our protections and those kids’ rights, you need the combination of a contract and a licensing relationship. Otherwise, all you can do is say, “please send us information,” “please treat our kids right,” but we have no way to see what happens when we aren’t visiting.

Miller: But just to respond to that last point, I thought that embedded in this are visits at least every 15 days. So there would be somebody from Oregon going every two weeks or so.

Gelser Blouin: The bill does not say who it is that will go. It is an unspecified multidisciplinary team, so that could be someone from DHS. It could be somebody from a CCO. It could even be somebody that is within that program themselves, that works there in that program. The proposed amendment that I’ve put forward would make it clear that that is the DHS employee, that the DHS employee should know the individual. It also requires the contract. It creates a provisional license to allow placement to be made quickly and waives the one thing that was in the way of the Arizona program receiving a license from Oregon, so that that youth could have received that treatment under the law.

Miller: Let me make sure I understand one of the points you just made because it’s pretty surprising. Under the initial bill, if an Oregon youth in the foster care system is sent to a facility, say, in Kansas, it would be allowed for somebody at that Kansas facility to be the person who verifies if the care they’re receiving is OK? Oregon DHS would be all right with that?

Gelser Blouin: I don’t know that DHS would be alright with that. I don’t believe that that is the intention, but the bill simply says that a member of the multidisciplinary team will visit the child once every 15 days. It doesn’t say it has to be the same person. It doesn’t say it has to be a DHS employee and it deletes the language, all of the pieces that require that type of ongoing contact. It’s all deleted. It’s all, not deleted from the statute, but it’s made to not apply to these new out-of-state placements.

Miller: I’m curious about another piece here, which is how much the public would understand what’s happening? Because my understanding is that after that this whole issue blew up originally five years ago or so, and after some foot-dragging by DHS, they did create a public dashboard showing how many kids were being sent out of state. So the public could see that directly. It was a version of transparency. Would we have anything like that under this new bill?

Gelser Blouin: Somewhat. In the initial version of the bill, the website went away. And instead, the information would be given to the System of Care Advisory Council, who would meet in executive session. The materials provided by DHS would not be public records. And the legislature, six to nine months after the placements, would receive the SOCAC’s redacted report on what had happened. If that had been the case back in 2019, kids would have been left in danger for much longer.

When ODHS sent the youth out of state last Arizona, they initially refused to even disclose the state in which the child was sent. And it took pointing to that website to have that reposted. In the current amendment for the bill, the website is retained, but they remove information from it. It removes the city … the state is there, but the city is not. It also removes important information about the demographics of the youth that are sent. Last time, we disproportionately sent kids of color, kids with intellectual and developmental disabilities, tribal kids. There were no tribal-specific placements. We need to know who we are sending away.

Miller: I want to turn to a broader issue here. The Statesman Journal reported recently on a presentation given to lawmakers earlier this session. Aprille Flint-Gerner, who just last week announced she was stepping down as the state’s child welfare director, noted that there has been an increase in inpatient capacity for youth in crisis in Oregon, but a nearly 80% decrease in children served in those contracted beds. And she said this: “The primary reason for that decline is denials from the providers related to children that have needs around their aggression.”

Can you help us understand what’s happening?

Gelser Blouin: Thanks for that question. The programs that are being referenced there are something called BRS programs or behavioral rehabilitation programs. There are a couple of reasons that the use of those has declined. The biggest being Senator Wyden’s really good work to pass the Family First Act, which is a federal law that requires states to reduce their use of congregate care, with the understanding that kids belong in families. We need facilities temporarily, briefly and rarely. But we need to work to put kids with families.

The second issue that’s confusing to me is that there are denials of kids to these programs, but Oregon’s rules prohibit these programs from accepting children that have aggressive behaviors. So the reason that they are declined is not because of any regulatory environment around what happens when the youth get there. The problem is the rule – this is not statute – prohibits them from accepting kids that are suicidal, from accepting kids with aggressive behavior. We don’t have, in rule, any place to serve these kids. This is a problem that was identified in 2019. A number of solutions were put forward, with the help of A&M and a report that was published in August of 2019. We haven’t made any progress on those – and we need to do that.

Miller: So what do you see as the pieces of a lasting solution here? I assume that you agree with Rep. Nosse that it’s a major problem that kids who urgently need help cannot find that help right now in Oregon. You obviously disagree about solutions, but what is your solution?

Gelser Blouin: So, a couple of things. One, I think that people have expressed a concern and I think it’s important that we respond to that. That’s why I’ve been working so hard to offer alternatives. I have an amendment that would allow out-of-state placement. It would provide an expedited licensure process. It would waive a corporate requirement that is currently in place. But it would be limited to placements into psychiatric residential treatment facilities, substance use disorder residential programs and eating disorder programs that are under the direction of a physician. And the placement would need to have an independent physician that said that this was important for this child. And you would have to maintain those contract requirements.

The bill also clarifies that a person in-state can’t be substantiated for abuse for lack of training. That actually has not happened in Oregon yet. There have been no staff that have received a substantiated abuse finding for their training being out of date, even though we’ve had nearly 16,000 restraints since the restraint law was passed.

I think what’s more important is looking at how do we avoid these issues in the first place? And that means wrapping services around kids early, before they are in crisis. This was one of those recommendations in 2019, that we need to provide the types of services to kids that have serious emotional disturbance that we provide to kids with intellectual and developmental disabilities. Some people refer to those as K Plan services or attendant care services. The fact is, those kids have been entitled to these services since 2013, but we’ve never set that up.

There’s a bill sitting in Ways and Means right now, Senate Bill 909, that would put us on track to get that in place within the next two years. Those services could be provided to kids in foster care, to kids at home, so that their parents aren’t forced to abandon them in emergency rooms because they’re told that’s the only way that they can get help. And the federal government would pay 70 cents for every $1 that we put into it. It’s a great deal. And that helps us prevent issues upstream and make sure when kids come home from treatment, they also have the support to remain successful in the community.

Miller: Sara Gelser Blouin, thanks very much.

Gelser Blouin: Thanks for having me.

Miller: Sara Gelser Blouin is a Democratic state senator from District 8 – that includes Corvallis, Albany and surrounding areas.

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