THE NIGHTMARE SCENARIO BEGAN WHEN A 9-year-old Palm Beach County boy who has autism became upset in his third-grade class and started to rip up and eat pieces of paper.
It ended with the child being taken away, handcuffed, in a police car, to undergo an involuntary psychiatric examination He was forcibly removed under the Florida Mental Health Act, commonly known as the Baker Act. The boy, now 11, is known as “E.S,” one of the plaintiffs in a lawsuit against the Palm Beach County School Board and other officials where the involuntary examination was initiated. He also is one of 37,882 Florida children taken for involuntary examinations in the 2018-2019 fiscal year, according to The Baker Act Reporting
Center at the University of South Florida. Minors made up 18% of the 210,992 people taken for involuntary psychiatric exams that year.
The skyrocketing number of children being seized in Florida under the Baker Act prompted an investigation by the Southern Poverty Law Center. Their 2021 study showed that the number of children held for involuntary psychiatric exams had increased more than 150% in 18 years.
In fact, the Baker Act has been used so often that it has become a verb. Someone taken away under the law is said to be “Baker Acted.”
The study looked at the misuse of the Baker Act on children in Florida schools, including a blistering case study of students in Palm Beach County. They found that in the 2019-20 school year alone, the Palm Beach County School District, with a student population of about 190,000 students, Baker Acted children 323 times. Forty percent of kids Baker Acted in Palm Beach district schools that year were Black.
The Baker Act, named for former state Rep. Maxine Baker, who sponsored the law 50 years ago, gives law enforcement officers, medical and mental health professionals, or courts the power to initiate and hold a person for an involuntary psychiatric exam if it is believed that the person has a mental illness and may pose a threat of harm to himself or others.
The criteria for Baker Acting someone has remained the same for children as it is for adults.
That has to change, mental health, social workers, legal experts and advocates say. State Legislators have pushed for various measures over the last few years to reform the Baker Act and how it applies to minors.
Now, significant changes appear to be on the way with two identical, companion bills making their way through the state legislative session.
Senate Bill 1510, “Mental Health of Minors,” was filed by Sen. Bobby Powell Jr., D-District 30, which covers part of Palm Beach County. House Bill 1459, the companion bill, was filed by Rep. Fentrice Driskell, D-District 63, which covers part of Hillsborough County.
The bills could be game-changing. Among several strong provisions, they give more power to parents to ensure that they are involved every step of the way from the moment their child first faces the possibility of being Baker Acted.
“So I think the big-picture headline is that this for the first time would create a procedure for use of the Baker Act that specifically addresses the needs of children” that doesn’t exist in current law, said Sam Boyd, senior attorney for the Southern Poverty Law Center.
The issue came to his attention through the Southern Poverty Law Center and a few other organizations, Sen. Powell said. “This legislation finally restricts the draconian use of physical restraints on children undergoing a mental crisis, suffering behavioral issues, or on the ADA spectrum, especially when parents are within reach to help a child in distress,” he said.
“In my own district there is an active lawsuit against the Palm Beach County School system for their alleged improper use of this mental health crisis mechanism,” Sen. Powell continued. The purpose of the Baker Act “is to treat and prevent a crisis, not a tool for intimidation nor a means to evade the proper steps to quell behavioral issues,” he said.
Rep. Driskell said her bill “allows for increased awareness of adolescent mental health needs within our classrooms, ensuring that when we send our children to school, they will be surrounded by trained, caring professionals to ensure their safety and educational success.” The bill creates statewide protocols that focus on quality care when it comes to Baker Acts involving children, she said.
The bills are relatively early in the legislative process. Both have been introduced in their respective houses of the legislature and are undergoing review by various committees. Neither legislator would address whether they believe the bills would pass, but Rep. Driskell said, “There is a consensus in the Legislature to protect our children and our most vulnerable.”
The law center study says the wrongful Baker Acting of minors falls into several categories:
¦ Kids who may be sad or depressed, who may need counseling, but not Baker Acting. Or they may make joking comments that are misinterpreted.
¦ Kids with developmental disabilities, like autism.
¦ Kids who are basically being punished for behavioral problems.
A significant portion of children are Baker Acted from schools. Another significant portion of those Baker Acted are children of color.
The 2016-2017 USF study showed that 22% of the involuntary exams of children were initiated at school. It also showed that 25% percent of all children who were Baker Acted were Black. But these 5-year-old statistics are the most recent data the state has in those categories.
Mr. Boyd believes the number of children Baker Acted from schools is much higher. “Our estimate is that it’s somewhere between 25% and 50%” he said. “That’s a very rough estimate.” It’s based on the state’s 22% number, which is probably a floor, and not a fully accurate estimate, he said. Even the 2016-2017 report notes that the number is likely undercounted because of inconsistency in filling out forms and missing data.
In addition, previous data shows big declines in Baker Acting of children in the summer months, Mr. Boyd said. “And so that suggests to us that a big source of Baker Acting is at schools.”
Palm Beach County is not alone. It happened to be one of the few school districts with statistics, though incomplete, that were available, perhaps because the district has its own police force. Statistics in most districts are few or nonexistent.
“Currently, school districts are not required to keep and report data, and many do not keep any records at all of the number of times that students are Baker Acted,” the law center study said.
A school cannot actually “Baker Act” a child. A school can call someone about an issue or problem with a child, but Baker Acting has to be done by law enforcement, by medical or mental health professionals, or through the courts.
It’s essentially illegal to Baker Act a developmentally disabled child, because the Baker Act applies to persons who are mentally ill, and developmentally disabled children are not mentally ill.
“So under current law, you cannot be Baker Acted if your behavior is as a result of a developmental disability, including autism,” Mr. Boyd said. Yet it happens frequently, he said.
“We see a lot of kids in schools where their only diagnosis is a developmental disability, the school doesn’t have any reason to think they have a mental illness, and yet they get Baker Acted anyway and that’s just plainly unlawful, in our view.”
Statistics show that the majority of Baker Acts in schools are initiated by law enforcement, often through the school resource officer. Children are taken to “Baker Act receiving facilities,” usually a mental health facility or hospital. The child needs to wait for an evaluation by a psychiatric or mental health professional, but the stay should be no longer than 12 hours. Parents or guardians were often not notified by school officials until after the Baker Act had been initiated, and in some cases were unable to talk to or visit their children.
There are more than 100 receiving facilities across the state, designated by the state DCF and licensed for evaluation by the Agency for Health Care Administration. Some are public facilities that receive state funds. Others are private.
The Baker Acts are reported by law enforcement and the receiving facility. The state DCF contracts with the Baker Act center at USF to compile and analyze the data in the reports.
But the forms are often incomplete, lacking critical information like social security numbers, location the Baker Act was initiated, what kind of mental illness the child is supposed to have, etc.
There is little or no accountability, tracking and informed policymaking, the law center study said. Reforms are urgently needed.
Above all, parents want to be involved when a child is Baker Acted, said David Brown, president, and co-founder of Family Initiative, an organization that works within the Southwest Florida community to support children and families impacted with Autism Spectrum Disorder.
The overwhelming concern was not being contacted when something happens, he said. “It’s like the school took action and made all these decisions.” But parents want the ability to make decisions for own kids about their safety, “not leave it to other people,” he said.
Parents also want transparency and accountability, said Anjali Van Drie, vice president and co-founder of Family Initiative.
“There are a number of families that we have worked with directly who have shared experiences that they have had with their family or with their friends,” regarding issues with the Baker Act, she said.
Also, through the organization’s relationships with local school districts and local mental health facilities, “I think we feel pretty confident that there’s a bigger number of kids out there who have had experiences than have been brought to our attention,” she said. Going forward, Family Initiative can work with community partners “to help identify solutions that work for everybody,” Ms. Van Drie said.
The proposed bills follow on the heels of State Bill 590, “Involuntary Examinations of Minors” which took effect July 1, 2021. The law was sponsored by Sen. Gayle Harrell, R-District 25, which includes Martin and St. Lucie counties and part of Palm Beach County.
The law requires parents be notified “if at all possible” before their child is Baker Acted, Sen. Harrell said. It also calls for more training and de-escalation of a situation that may lead to a Baker Act, as well as more documentation and tracking of the initiation of Baker Acts on children. Principals or their designates must make “a reasonable attempt to notify” parents, documenting which method of communication was used, the number of attempts made, and the outcome of each attempt.
The bill requires the state DCF to include the number of students removed from school as well as the number of children for whom Baker Act examinations are initiated in its biannual Baker Act of Minors report. School districts must collect this data. The report must separate children and students when studying the patterns, trends, and cases of minors who are repeatedly Baker Acted.
This is the first year for the new tracking requirements. “We really don’t know yet the impact of that, but I have to believe there will be a significant impact,” Sen. Harrell said.
“I think it’s a great, great start,” Mr. Boyd said of the law. “And it’s great evidence that the Legislature is taking this issue seriously and is recognizing that there is an issue with the overuse of the Baker Act on kids in schools,” he said. “So I think once the school year is over or whenever that data is published, we’ll have a better idea about the Baker Act rate in schools.”
For the 2022 session, Sen. Harrell has sponsored SB 1240, which makes sure students and their families know of and have access to school or community based mental health or behavioral health services.
In the meantime, the Palm Beach school district case study outlined in the Southern Poverty Law Center report sparked a lawsuit filed in August 2021 against the School Board of Palm Beach County, the school superintendent, the police chief, and several officers from the school district’s police force. The plaintiffs are five children who were Baker Acted from schools in the district, their parents or guardians, plus Disability Rights Florida and the Florida State Conference of the NAACP.
The lawsuit is ongoing, said Caitlyn Clibbon, public policy analyst for Disability Rights Florida. Currently, the parties are waiting on a magistrate’s report on a motion to dismiss, filed by the defendants.
The plaintiffs include E.S., the 9-year-old boy who has autism mentioned at the top of this story. His experience and the that of the four other children are a snapshot of various scenarios schoolchildren may face in being Baker Acted.
This is the rest of E.S.’s scenario. According to the lawsuit:
E.S. was taken from the classroom to the school’s main office, where he yelled.
The school was aware that E.S. had autism. He also had been diagnosed with ADHD and dyslexia and was “other health impaired.” In a footnote, “other health impaired” is defined as “having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli … that is due to chronic or acute health problems.”
The school was aware of his disability-related behavioral needs and had some supports in place to address them. His mother, J.S., had provided a board-certified behavioral analyst who worked with her son at school. The school’s ESE coordinator and principal were aware that his mother could successfully de-escalate E.S. when he exhibited challenging behaviors.
The behavior analyst was called. E.S. swung his arm and hit her twice in the chest, causing a red mark, then hit a window, without damaging it. Then he began to calm down. But the school had called one of its school police officers, who was filling in that day for another officer.
According to the behavioral analyst’s employee incident report, the officer tackled E.S. to the ground and said, “If you’re going to act like a fool I’m going to treat you like a fool,” and “You are coming with me.” E.S. became upset again.
The officer decided to initiate an involuntary examination under the Baker Act and handcuffed him. The behavior analyst said in her report that she disagreed with the decision, that E.S.’s tantrum had stopped and the child was under control.
The school principal called and told J.S. that her son had been taken away in handcuffs, but she did not know where he had been taken. The child had in fact been taken to a Baker Act receiving facility.
The officer later contacted J.S. and told her that there was “no point” in J.S. racing to the hospital because she was not going to be allowed to see E.S.
At the receiving facility, it was determined that E.S. was not a danger to himself or others. His mother took him home the same day. Two years later, he is no longer in public school.
After an internal investigation conducted by the school district, it was found that the use of the Baker Act in E.S.’s case was inappropriate, because E.S.’s behavior was due to his autism. However, the investigation found the officer was not in violation of district’s Baker Act procedures. The report also found that the officer’s use of force was not “excessive” because of “resistance” by E.S., age 9 at the time.
The provisions in the new bill now proposed in the state legislature may have addressed the issues in the E.S. scenario differently.
But does the new bill go far enough in protecting the rights of children and parents?
“I think it does,” Mr. Boyd said. “It addresses a lot of the big problems that we have right now. I don’t want to say it solves every problem. I think we need much better and more comprehensive alternatives to Baker Acts for children.” ¦