HB 3835: Fact-Checking the Oregon Department of Human Services & System of Care Advisory Council
The Oregon Department of Human Services (DHS) and System of Care Advisory Council (SOCAC) are currently lobbying for passage of HB 3835, a dangerous bill that will roll back important child abuse protections and hurt children and teens.
The following DHS/SOCAC claims are taken directly from a HB 3835 fact sheet currently being distributed to legislators. Disability Rights Oregon attorneys have closely fact-checked this document and determined it includes several falsehoods.
Read on for details and download endnotes for citations noted in parentheses >
Does this legislation make it easier to restrain or seclude kids?
DHS/SOCAC CLAIM: No. This legislation does not change the requirement that restraint or seclusion are used as a last resort, when no less-restrictive intervention can prevent imminent risk of serious physical harm. It maintains Oregon’s existing high standards for third-party abuse and makes them consistent across Child Caring Agencies, residential care for children with disabilities, and school settings so there is no ambiguity in what is considered abuse and against the law.
FACT CHECK: Yes. HB 3835 changes what counts as a “restraint” to exclude any conduct where the abuser has the “intent” of supporting the safety or development of a child—even if the abuser’s conduct results in broken arms.(1) This legislation would usually allow any abuser to simply claim they didn’t intend to harm a child and be exempt from a finding of abuse.
Under the bill, only “wrongful restraint” is abuse, and DHS will only investigate wrongful restraint.(2) The bill excludes from the definition of “wrongful restraint,” the handcuffing or tying up of children (“mechanical restraints”), the pressing of children to the floor—an act known to cause death (“supine restraint” or “prone restraint”)—and other life-endangering restraints. Under HB 3835, the state’s child abuse investigators are NOT ALLOWED TO INVESTIGATE when a child is put in handcuffs or pressed to the floor, because those restraints (while still technically prohibited) are no longer in the list of things they are permitted to investigate.(3)
In most places in the bill, the definition of “wrongful seclusion,” not “seclusion,” is what matters. Only “wrongful seclusion” is abuse, and DHS will only investigate wrongful seclusion.(4) Seclusion is only “wrongful” if it is done for the purposes of retaliation, punishment or convenience.(5) In effect, this means that, as long as a school district or a care provider can say that they had a legitimate purpose in putting the child in seclusion in the first place—for instance, to help the child calm down—the seclusion is never wrongful under the proposed definition simply because it went on for six hours, or because the child was isolated in a dark, locked closet with no access to food, water, or toilet facilities. This is a radical departure from the current law. Seclusion, even for a legitimate purpose, can be abuse if it goes on too long or if the conditions of the seclusion can harm children.
Does this legislation change what is considered abuse?
DHS/SOCAC CLAIM: No. Abuse is abuse - this legislation puts everyone on the same page so that providers in any setting know there’s no technicality or confusing application of what is simply understood as abuse.
FACT CHECK: Yes. This legislation changes what is considered abuse under Oregon law, who may be investigated for abuse, and what can be substantiated in an investigation.
The bill changes the definition of what counts as “abuse,” depending on who is doing the abusing. Only abuse by a foster parent or by an employee of a facility regulated by DHS counts as abuse under this bill. This means that foster children can be physically or sexually abused by a school principal, a foster parent’s boyfriend, an older child, a coach, a mentor, or another adult in their lives—DHS will not investigate any of these acts. Further, DHS could not even investigate whether the foster parent or the facility did its job in trying to protect the child from abuse, even if the foster parent or the facility staff knew the abuse was going on.
The bill similarly limits what “counts” as a restraint or seclusion to an act of restraint or seclusion done by a “responsible individual.” The term “responsible individual” is defined as a foster parent, a teacher or other educational employee, or an employee or contractor of a regulated facility for children. Under this bill, DHS will not and cannot investigate situations where a child is held down by someone else or locked in a small room by someone else who does not fit this narrow definition.
The bill also redefines a “chemical restraint,” which is the term for when someone gives a medication to someone to make them sleepy or compliant, not to make them well. DHS has a sordid history of sending children to out-of-state providers who gave medications like Benadryl to children as young as nine to make them groggy. Under HB 3835, if a child got a low dose of Benadryl for allergies, a facility could start giving them high doses of Benadryl just to sedate them, without that misuse of the medicine “counting” as a chemical restraint.
As discussed above, the bill changes the definition of restraint to exclude any conduct where the abuser has the “intent” of supporting the safety or development of a child—even if the abuser’s conduct results in a broken arm, concussion, or other serious harm to a child. This legislation would allow any abuser to simply claim they didn’t intend to harm a child and be exempt from a finding of abuse by DHS.
Does this legislation change how child abuse is investigated?
DHS/SOCAC CLAIM: Child abuse against a “child” or a “child-in-care” will continue to be investigated as child abuse. This legislation simply clarifies when child abuse is investigated under ORS 419B and ORS 418.
FACT CHECK: The legislation changes what “counts” as abuse—and who “counts” as an abuser.
Under this bill, for most purposes, abuse by a person who is not actually a foster parent or an employee of a facility that DHS regulates does not count as abuse and cannot be investigated by DHS.(6) If an 18-year-old sexually abuses a 12-year-old at a DHS facility, under HB 3835, DHS could no longer investigate if the abuse took place, nor whether the facility tried to protect the 12-year-old. Or, if a foster parent’s boyfriend molests a 12-year-old foster child, the boyfriend could not be investigated by DHS for abuse, and the foster parent could not be investigated by DHS unless they actively participated in the molestation and abuse. Under HB 3835, DHS would never have investigated if a foster child in St. Helens was being abused by a teacher, the case would have been closed for lack of jurisdiction. DHS is responsible for all children in its care and should investigate whether children in its care are being abused, no matter who abuses them.
The bill further limits when abuse “counts” by defining a new term, a “responsible individual,” and stating that seclusions and restraints are only prohibited when those “responsible individuals” actually perform the seclusion or restraint.(7) For instance, if a foster parent’s boyfriend locks a 5-year-old child in a closet for hours, that is not a prohibited “seclusion” under the bill, because the boyfriend is not a “responsible individual” under the bill. If an employee of a DHS contractor, like Dynamic Life, ties up a child or holds them to the floor until they can’t breathe, that act does not count as a restraint, because the person is not a “responsible individual”—they work for a contractor of DHS, not for a child-caring agency.
The law also doesn’t bind DHS employees themselves. A DHS staffer staying in a hotel room with a child could lock them up or hold them down for no legitimate reason. The seclusion and restraint law would not apply to them, because they don’t count as a “responsible individual.” Under current law, DHS staff and DHS contractors are permitted to seclude or restrain a child in emergency situations, such as a child attempting to commit suicide or a youth who appears to be running into a street when they do not understand the danger.
HB 3835 changes the law to permit retaliation against foster children who complain about abuse. Current law protects children against retaliation for reporting restraint and seclusion; the bill would change this to “wrongful restraint” and “wrongful seclusion.” sounder this new scheme, a child could be retaliated against for complaining about a restraint that doesn’t count as a “wrongful restraint”—like being handcuffed or zip-tied, or physically restrained in a way that broke their arm but didn’t constitute permanent disfigurement or death by the abuser’s actions.(8)
Taken as a whole, HB 3835 prohibits Oregon DHS from investigating a wide array of abuse and neglect of children in its care, will lead to fewer investigations of horrific abuse, and less accountability for the agencies charged with keeping children safe.
Is it true this bill will result in Oregon having some of the lowest protections related to restraint and seclusion in the country?
DHS/SOCAC CLAIM: No. Oregon is currently, and with the proposed amendments will continue to be, among the top 10 states in the country for strong regulations considering restraint and seclusion on children.
FACT CHECK: This claim by DHS is misleading at best. In reviewing a sample of state statutes compiled by the federal government’s National Center on Safe Supportive Learning Environments, Discipline Compendium, HB 3535 would put Oregon among the lowest protections for certain types of abuse in school settings , but not other certain types. There is no national comparison of abuse investigation statutes that rank state law from best to worst.
HB 3835 would eliminate enforcement of many types of abuse. A law without prospects for enforcement is not likely to deter violations. It is unclear how Oregon considers itself to be in the top ten states, as dozens of states have what are generally considered to be meaningful protections against seclusion and restraint.(9) Here, HB 3835 would effectively prohibit investigation of most use of seclusion and restraint, except for the most extreme versions (i.e., restraint and seclusion explicitly done for the purpose of punishment or retaliation, certain chemical restraints, and those that endanger the life of the child). In addition, the bill would authorize the use of restraint and seclusion in many settings by providing numerous subjective loopholes that providers and school districts could easily take advantage of to escape scrutiny, such as by claiming an intent to help the child or by otherwise claiming that seclusion was developmentally appropriate.(10) Considering the addition of these subjective loopholes and the clear redefinition of the role of DHS in investigating seclusion and restraint, Oregon would likely see much more seclusion and restraint of youth.
Will some restraints be permissible that are now prohibited?
DHS/SOCAC CLAIM: No. The regulations in existing statute regarding prohibited restraints and seclusion—including procedures, record-keeping, notifications, and training standards—remain unchanged, as they are essential for protecting child safety. We are changing how we investigate restraints, not changing the prohibited restraints.
FACT CHECK: This claim by DHS is misleading at best. As stated above, DHS has added major subjective loopholes to its definitions of restraints and sharply limited when restraints count as “wrongful restraints” and therefore substantiated abuse by DHS investigators. If a person says they performed a restraint with good intentions, the restraint basically does not count as a restraint.(15)
In addition, while some restraints would remain technically prohibited, DHS would be wholly unable to investigate them, such as:
handcuffing or tying a child up (“mechanical restraint”) or
pressing the child against the floor (a “prone restraint” or “supine restraint”).(16)
Those would not count as abuse even though these practices are well known to lead to death. Even if DHS opens an investigation into a restraint, it would have to find that the restraint was done as punishment, retaliation, or for convenience, that the restraint was a chemical restraint (i.e., that a medication was used), or that the restraint put the child’s life in danger or threatened the child with permanent maiming. Holding a child in such a way that their arm breaks, that resulted in bruising all over their body, or where pushing a child against a wall left open wounds on their face would likely not meet these standards.
What does “serious physical harm” mean if it is not defined?
DHS/SOCAC CLAIM: In researching alternative terms to replace "serious bodily injury," it was concluded that "serious physical harm" is the most appropriate choice for three reasons:
Consistency with Established Standards: The term aligns with the U.S. Department of Education's guidance and the Joint Commission model policy, ensuring consistency with widely accepted frameworks.
Legal Precedent: "Serious physical harm" is not specifically defined in Oregon statutes, but its plain meaning is well established in Oregon statutes and can be readily applied in legal contexts.
Enhances Understanding and Maintains a High Standard: The plain meaning of "serious physical harm" uses common, easily understood language while still conveying the intended high standard.
When terms are not specifically defined, courts assume those terms hold their plain, ordinary meanings, as defined by Webster's Dictionary.
"Serious" is defined as "such as to cause considerable distress, anxiety, or inconvenience: attended with danger."
"Physical" means "of or relating to the body."
"Harm" and "injury" are synonymous, both meaning "damage." According to Webster's Third, "harm" is defined as "physical or mental damage: INJURY," while "injury" refers to "hurt, damage, or loss sustained," which are synonymous with harm.
Therefore, "serious physical harm" conveys the idea of considerable damage to the body, upholding the high standard intended by SOCAC and ODHS.
FACT CHECK: DHS’s statements are not true about the meaning of “serious physical harm.” HB 3835 will prohibit considering most restraints as abuse—unless the restraints threaten death or permanent, lifechanging maiming of the child.
Applying what the Oregon Courts have found, a restraint would only be wrongful if the child’s survival was jeopardized or the child was permanently disfigured by the abuser’s actions.(17) This would not include breaking bones or other serious trauma to a child’s body caused by an abuser using restraints. State v. Stone, 326 Or App 200, 204 (2023) (physical assault that left victim with broken nose, facial lacerations and bruising, and a concussion did not qualify as “serious physical injury” because the injuries are not permanent).
The term “serious physical harm” is used routinely in Oregon law. It typically has the same or a similar meaning in terms of degree of the harm as the term "serious bodily injury" or “serious physical injury.” The specific phrase "serious physical harm" is used 135 times in Oregon cases, usually as a descriptor of the kind and degree of harm that must arise or be at risk before a person can be civilly committed.
The phrase “serious physical harm” as used by Oregon courts means harm by which "the person’s safe survival will be compromised." Matter of M. A. E., 299 Or. App. 231, 240, 448 P.3d 656, 661 (2019). Oregon courts have reiterated that holding in 21 other cases on civil commitment in the last 6 years, all concurring that the meaning of "serious physical harm" requires that a person's survival has been jeopardized. See, e.g., Matter of R. L. M., 309 Or. App. 545, 549, 482 P.3d 201, 203 (2021); Matter of C. M. C., 301 Or. App. 206, 212, 454 P.3d 30, 33 (2019); Matter of J. D. J., 313 Or. App. 526, 530, 496 P.3d 1095, 1098 (2021).
Even if you follow DHS’s invitation and put the phrase “serious physical harm” into the online Merriam-Webster Dictionary, it suggests the term “serious bodily harm,” which the dictionary then defines as “serious bodily injury.” According to the Merriam-Webster dictionary, “serious bodily injury” means “bodily injury which involves substantial risk of death, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member or organ or mental faculty.” Even DHS’s basic concept that following the dictionary definition would result in some less drastic outcome is faulty and misleading.
Will this legislation reduce safety standards that are in place in Oregon?
DHS/SOCAC CLAIM: No. Safety standards remain the same with this legislation.
FACT CHECK: This is misleading. Even if written safety standards are not modified, the practical standards about safety would change dramatically, because a large portion of seclusion, restraint, and abuse would either become permissible or would become de facto permitted because investigation would be prohibited. Under this bill, children could not expect protection from DHS unless their lives are in danger, or they are in danger of permanent physical maiming.
Will this add children to the civil commitment process?
DHS/SOCAC CLAIM: No. This law aligns Oregon statute with federal law to allow parents to provide mental health treatment for kids under age 18.
FACT CHECK: The bill will give greater freedom to DHS to force children and youth into treatment, but without the protections of a civil commitment process.
Right now, the main issue is not a lack of a legal means to compel children into treatment, but a lack of appropriate placements for children in need of treatment. In a sworn statement, children in Oregon were forced into treatment, including at anti-LGBTQIA+ conversion camps, while in foster care.(18) This happened despite the fact conversion therapy is unlawful. Oregon law already allows means to provide care to children in crisis, but Oregon has allowed its supply of services and providers to decline for years without an adequate response.
Won’t sending kids out of state remove the ability for the state to provide oversight and ensure child safety?
DHS/SOCAC CLAIM: No. This bill strengthens oversight measures by requiring the Child Welfare Director’s review and approval for any exception as opposed to a case manager. Additionally, SOCAC will receive and monitor reports on every out of state placement, and an OHSU-based institute will oversee clinical best practice and evaluate trends for treatment gaps.
There are currently not enough providers in Oregon to serve the level of needs the state has. While we grow the provider workforce in Oregon, this bill carefully and narrowly amends statute to increase the access for children and young adults in the custody of Child Welfare to have equal access to placements and treatment as their peers on the Oregon Health Plan or private insurance.
FACT CHECK: Yes. This legislation will endanger child safety by allowing the state to use the low standards of Arkansas, Wyoming, Ohio, or other states when determining if a placement is safe for Oregon’s children.
Sec. 36 amends ORS 418.321 to create an exception to current law that allows DHS to send children to out-of-state facilities, that do not meet Oregon licensing standards and where DHS does not have a contract. While the legislation claims the facility must be “in good standing” with the other state’s licensing authority, this sets such a low bar at a facility that it could have multiple incidents of abuse, neglect, and rights violations—so long as the facility has not yet lost its license.
For example, Wyoming continues to license a facility operated by Sequel, a for profit company accused of widespread child abuse in its facilities throughout the United States.(20) Meanwhile, Korin Schmidt, director of the Wyoming Department of Family Services states: “We’re a state that really does pride ourselves on regulatory restraint.”(21)
The threshold for out-of-state providers will only be that it still has a license in their home state. Our research into the widespread misuse of out-of-state placements in 2019 illustrated that a public records request or even a quick internet search would have shown founded complaints for maltreatment of children and that some even had licenses on probationary status.(22) DHS kept assuring legislators and the public that everything was fine in the out-of-state placements until the weight of investigation done by media and advocates demonstrated how bad those placements were and that DHS simply had no idea what was going on in those facilities. HB3835 allows a return to out of state placements with inadequate court or state oversight.
Why is the state focused on changing regulations instead of working to build capacity and train providers?
DHS/SOCAC CLAIM: We must do both! Improving youth behavioral health and access to treatment is a multi-faceted approach. The Governor’s Recommended Budget includes new and critical financial investments to grow capacity and build our workforce.
FACT CHECK: Oregon’s kids need better protections from abuse, not worse. HB 3835 lowers the standards for keeping children safe in a number of ways. Clearly, providers need better training on how to safely and effectively support Oregon’s most vulnerable children.
These statutory changes are taking place without a proportional and adequate investment in child services or educational services. The shortage of child placements has existed since at least 2016 (when the problem of placing foster care children in hotels broke into public view) and no current plan demonstrates that DHS is even close to having resources adequate to meet children’s needs. Almost ten years later, DHS is asking to reopen the widespread use of out-of-state placements for an indefinite period. Out-of-state placement cannot again become an indefinite substitute for developing services at home in Oregon.
Who is regulated as a Child-Caring Agency?
DHS/SOCAC CLAIM: Licensed Child Caring Agencies are listed on this webpage and include the following categories:
Academic Boarding Schools
Adoption Agencies
Day Treatment Programs
Foster Care Agencies
Homeless, Runaway and Transitional Living Shelters
Outdoor Youth Programs
Residential Care Programs
Secure Transportation Services
Therapeutic Boarding Schools
FACT CHECK: What is important is who is not a child caring agency—and thus unregulated by DHS. Under HB 3835, DHS will increase its use of contractors—like Dynamic Life—who are effectively not regulated.
DHS also has children in hotel rooms attended by DHS staff and other nonprofit direct service workers. Those parties are also not regulated. There is no common requirement for training, background checks, or basic standards of performance for these unregulated entities serving children. This bill would ensure that none of these providers, paid by state taxpayer money, would escape scrutiny for abuse, neglect, seclusion, and restraint.
We Need Your Help
The Oregon Department of Human Services is attempting to change the definition of child abuse and drastically limit investigations of abuse and neglect. If HB 3835 passes, more children and youth will be hurt. The House Committee on Early Childhood and Human Services cannot let that happen.
