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TheWeekInCongress.com (TM) Week Ending March 5, 2010
H.R.4247 To prevent and reduce the use of physical restraint and seclusion in schools, and for other purposes.
The Secretary of Education is directed to establish minimum standards that prohibit elementary and secondary school personnel from managing any student with the use of mechanical or chemical restraint, physical restraint or escort that restricts breathing, or any aversive behavioral intervention that comprises student health or safety. School personnel would be prohibited from the use of physical restraint or seclusion unless those measures are required to eliminate imminent danger of physical injury to the student or others and only when certain precautions are taken.
Finding that “Physical restraint and seclusion have resulted in physical injury, psychological trauma, and death to children in public and private schools” the bill aims to prevent and reduce the use of physical restraint and seclusion, insure the safety of all students and school personnel in schools and promote a positive school culture and climate and protect students from physical or mental abuse, aversive behavior interventions that compromise health and safety, and any physical restraint or seclusion imposed solely for the purpose of discipline or convenience.
Nothing in the bill is authorizes the Secretary to promulgate regulations prohibiting the use of time out (as defined in section 4(20)), devices implemented by trained school personnel, or utilized by a student, for the specific and approved therapeutic or safety purposes for which such devices were designed and, if applicable, prescribed, including restraints for medical immobilization; adaptive devices or mechanical supports used to achieve proper body position, balance, or alignment to allow greater freedom of mobility than would be possible without the use of such devices or mechanical supports; or vehicle safety restraints when used as intended during the transport of a student in a moving vehicle; or handcuffs by school resource officers (as such term is defined in section 4151(11) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7161(11))) in the case when a student's behavior poses an imminent danger of physical injury to the student, school personnel, or others; or lawful exercise of law enforcement duties; and less restrictive interventions would be ineffective.
Chemical restraint is defined as “a drug or medication used on a student to control behavior or restrict freedom of movement that is not prescribed by a licensed physician for the standard treatment of a student's medical or psychiatric condition and administered as prescribed by the licensed physician.”
School is defined as “school' means an entity that is a public or private day or residential elementary school or secondary school; or early childhood, elementary school, or secondary school program that is under the jurisdiction of a school, educational service agency, or other educational institution or program; and receives, or serves students who receive, support in any form from any program supported, in whole or in part, with funds appropriated to the Department of Education; or that is a school funded or operated by the Department of the Interior.”
States and local educational agencies (LEAs) are required to ensure that a sufficient number of school personnel receive state-approved training and certification in first aid and certain safe and effective student management techniques; prohibit physical restraint or seclusion from being written into a student's education plan, individual safety plan, behavioral plan, or individual education program as a planned intervention; and require schools to establish procedures to notify parents in a timely manner if physical restraint or seclusion is imposed on their child. The Secretary may award grants to states and, through them, competitive subgrants to law enforcement agencies to establish, implement, and enforce policies and procedures to meet such standards, improve their capacity to collect and analyze data related to physical restraint and seclusion, and implement school-wide positive behavior supports.
The bill gives Protection and Advocacy Systems the authority provided under the Developmental Disabilities Assistance and Bill of Rights Act of 2000 to investigate, monitor, and enforce this Act's protections for students.
The Secretary of Health and Human Services is directed to establish standards for Head Start agencies that are consistent with the minimum standards for the management of elementary and secondary school students, and is granted funds to assist Head Start agencies in establishing, implementing and enforcing policies and procedures to meet the standards.
Schools would have two years to certify to the State that the minimum requirements of the Act have been met.
Sponsor: Rep. George Miller (CA-7th) Vote: On passage Passed by the Yeas and Nays: 262 - 153 (Roll no. 82). Cost to the taxpayers: There are authorized to be appropriated such sums as may be necessary to carry out this Act for fiscal year 2011 and each of the 4 succeeding fiscal years. “CBO estimates that implementing H.R. 4247 would increase discretionary spending by about $250 million over the 2011-2015 period.” Earmark Certification: H.R. 4247 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clauses 9(d), 9(e) or 9(f) of rule XXI of the House of Representatives.
## All Rights Reserved. © 2010 TheWeekInCongress.com(TM) No reproduction, language translation or distribution without written permission from TheWeekInCongress.com.(TM)
MORE INFORMATION FINDINGS Congress finds the following: (1) Physical restraint and seclusion have resulted in physical injury, psychological trauma, and death to children in public and private schools. National research shows students have been subjected to physical restraint and seclusion in schools as a means of discipline, to force compliance, or as a substitute for appropriate educational support. (2) Behavioral interventions for children must promote the right of all children to be treated with dignity. All children have the right to be free from physical or mental abuse, aversive behavioral interventions that compromise health and safety, and any physical restraint or seclusion imposed solely for purposes of discipline or convenience. (3) Safe, effective, evidence-based strategies are available to support children who display challenging behaviors in school settings. Staff training focused on the dangers of physical restraint and seclusion as well as training in evidence-based positive behavior supports, de-escalation techniques, and physical restraint and seclusion prevention, can reduce the incidence of injury, trauma, and death. (4) School personnel have the right to work in a safe environment and should be provided training and support to prevent injury and trauma to themselves and others. (5) Despite the widely recognized risks of physical restraint and seclusion, a substantial disparity exists among many States and localities with regard to the protection and oversight of the rights of children and school personnel to a safe learning environment. (6) Children are subjected to physical restraint and seclusion at higher rates than adults. Physical restraint which restricts breathing or causes other body trauma, as well as seclusion in the absence of continuous face-to-face monitoring, have resulted in the deaths of children in schools. (7) Children are protected from inappropriate physical restraint and seclusion in other settings, such as hospitals, health facilities, and non-medical community-based facilities. Similar protections are needed in schools, yet such protections must acknowledge the differences of the school environment. (8) Research confirms that physical restraint and seclusion are not therapeutic, nor are these practices effective means to calm or teach children, and may have an opposite effect while simultaneously decreasing a child's ability to learn. (9) The effective implementation of school-wide positive behavior supports is linked to greater academic achievement, significantly fewer disciplinary problems, increased instruction time, and staff perception of a safer teaching environment.
ADDITIONAL VIEWS
Introduction Committee Republicans believe all students should be able to learn in a safe, productive, and positive environment. Teachers, principals, and other school personnel have a responsibility to ensure this environment is maintained at all times. Even in situations in which students have serious problems that pose a threat to themselves and others, it is vitally important that school personnel use interventions and supports that are both physically and emotionally safe for the child. Sadly, efforts to maintain order in the classroom have sometimes led school personnel to misuse certain techniques resulting in the abuse or even death of students. The legislation presented to the Committee in H.R. 4247 posits that the solution to the misuse of seclusion and restraint techniques lies in the hands of the Secretary of Education in Washington, D.C. Republicans, however, believe Washington does not always know best, and education policy is best handled at the state and local levels. We praise the work of school personnel who oftentimes work under very challenging circumstances. We commend those states and local areas that have passed comprehensive laws restricting the misuse of restraints and seclusion rooms. At the same time, we condemn those teachers and classroom aides who have been found guilty of child abuse and neglect, which has resulted in the injury or death of school-age children; their actions have no place in public or private school settings. In determining whether the federal government, acting through the U.S. Department of Education, should begin the unprecedented step of regulating the use of restraint techniques and seclusion rooms in public and private schools, Committee Republicans raise four substantive concerns with H.R. 4247, the Preventing Harmful Restraint and Seclusion in Schools Act: Lack of reliable data on the use of restraint and seclusion in public and private schools First, Committee Republicans believe H.R. 4247 fails to recognize that the federal government, state educational agencies, local educational agencies, or schools lack any type of reliable data on the prevalence of harmful restraint techniques in public and private schools and whether they result in child abuse. This fact is indisputable. Gregory D. Kutz, Managing Director of Forensic Audits and Special Investigations for the U.S. Government Accountability Office, offered testimony before the Committee that the GAO `could not find a single Web site, federal agency, or other entity that collects information on the use of these methods or the extent of their alleged abuse' (emphasis added). [Footnote 1: The Democratic majority in the Committee Report accompanying H.R. 4247 also uses this startling statistic to make the case for action on federal legislation regulating the use of restraint and seclusion techniques, although a more appropriate precursor to taking any federal legislative action, would be to collect information from states in an effort to determine the problem's prevalence first.] [Footnote 1: See `Testimony of Gregory D. Kutz, Managing Director of Forensic Audits and Special Investigations, U.S. Government Accountability Office (GAO), Hearing, U.S. House of Representatives, Committee on Education and Labor, Examining the Abusive and Deadly Use of Seclusion and Restraint in Schools' at http://republican.edlabor.house.gov/Media/file/111th/hearings/fc/051909/gao.pdf.] This point has also been substantiated by the actions of the U.S. Department of Education, through the Office for Civil Rights (OCR), which recently issued a draft regulation requiring state and local educational agencies to collect data on the use of restraint and seclusion in schools. [Footnote 2: The Civil Rights Data Collection, which has been pending for more than five months since September 2009, is expected to include data from 7,000 school districts and 77,000 schools. Under the proposal, school districts would submit three tables of data on restraint and seclusion--one for all students, one for students with Individualized Education Plans (IEPs), and one for those without IEPs. OCR's draft proposal was published in the Federal Register in an effort to use the Department's current data collection authority to determine how prevalent the problem of restraint and seclusion techniques is at the state or local level so the Department could determine whether they needed to act to protect student safety.] [Footnote 2: See http://edocket.access.gpo.gov/2009/pdf/E9-21935.pdf.] In a letter dated May 22, 2009, Congressman Howard P. `Buck' McKeon attempted to gather relevant information on the topic by asking U.S. Secretary of Education Arne Duncan to provide information on the number, nature, and resolution of any allegations of abuse from restraint and seclusion techniques that have been reported to the Department for the last five years. In his response to the Committee, the Secretary stated: With regard to your . . . question about allegations of abuse from seclusion and restraint, the Department received a copy of a letter sent by a parent to the parent's State educational agency concerning the use of restraint on that parent's child in 2004. The letter was sent to the Department as `information only'--no response was requested or provided. In addition, the Office for Civil Rights (OCR) contacted its regional offices and was able to identify 89 OCR cases that appear to be responsive to your request. Of these 89 cases, 81 cases raised allegations of disability discrimination, four raised allegations of race/color/national origin discrimination, and four cases raised allegations of disability and race/color/national origin discrimination. As of September 8, 2009, of those 89 cases, nine cases are open and 80 are closed. Of those closed 80 cases, 33 cases were dismissed or closed for administrative reasons (e.g. lack of consent, the complaint was withdrawn, and the complaint was untimely); 40 of those cases were closed as `insufficient evidence/no violation found' with regard to allegations involving restraint or seclusion . . . and four of those cases were resolved by Early Compliant Resolution . . . Committee Republicans support the actions of the Department to begin collecting data on the use of restraint and seclusion techniques and believe the Democratic majority should suspend action on H.R. 4247 until OCR completes its review to see how widespread the problem of harmful seclusion and restraint techniques may be. To do otherwise suggests that the majority is supportive of legislating prematurely, bereft of any reliable or factual information on which to base federal education policy. Creation of a one-size-fits-all federal mandate Second, Committee Republicans believe H.R. 4247 fails to acknowledge the work of 31 states that have acted to address restraint and/or seclusion techniques. Instead, it creates a one-size-fits-all federal mandate. The use of restraint and seclusion techniques, including defining what constitutes a restraint or seclusion, is primarily regulated at the state level. Thirty-one states currently have laws and regulations in place that govern the use of restraint and/or seclusion in schools. [Footnote 3: In addition, school districts may also have their own guidelines governing the use of such practices in the classroom.] [Footnote 3: For a full breakdown of state policy affecting restraint and seclusion techniques, see `Testimony of Gregory D. Kutz, Managing Director of Forensic Audits and Special Investigations, U.S. Government Accountability Office (GAO), Hearing, U.S. House of Representatives, Committee on Education and Labor, Examining the Abusive and Deadly Use of Seclusion and Restraint in Schools' at http://republicans.edlabor.house.gov/Media/file/111th/hearings/fe/051909/gao.pdf.] While state laws vary widely, an overwhelming majority of states are taking and have taken action to address problems that have arisen over time. The federal government should respect the rights of states to exercise their capacity and expertise to regulate in this area. The Democratic majority uses this fact in the Committee Report accompanying H.R. 4247 to criticize states for not developing uniform policies around restraint and seclusion policies; however it should recognize that states are in the best position to develop and implement policies and laws that protect their students. In August 2009, U.S. Secretary of Education Arne Duncan conceded this fact by sending a letter to each Chief State School Officer urging them to review their current policies and guidelines regarding the use of restraints and seclusion in schools to ensure every student is safe and protected. [Footnote 4: The Secretary urged each state to do such a review prior to the start of the 2009-2010 school year and directed the Office of Elementary and Secondary Education to work with each state to discuss relevant state laws, regulation, policies, and guidance that affect the use of seclusion and restraint.] [Footnote 4: For a copy of the letter sent by Secretary Duncan, see http://www2.ed.gov/policy/elsee/guid/secletter/090731.html.] Unfortunately, the Secretary has failed to release the transcripts of the state reviews; more than seven months after he pledged to the Committee that he would take appropriate action, the transcripts have still not been released. These transcripts could include important information on recent actions taken by states, including those 19 states that lack any state laws regulating restraint and seclusion techniques, to protect the safety of students. Committee Republicans urge the Department to release the transcripts of state conversations immediately so federal and state policymakers can see whether states have made progress on preventing the misuse of restraint and seclusion techniques. Inclusion of traditional private schools is unprecedented Third, Committee Republicans believe H.R. 4247 fails to exempt traditional private schools from its broad reach. Even though the GAO's report [Footnote 5: found no instances of misuse of seclusion and restraint at traditional private schools, H.R. 4247 would apply to any school that receives federal funding or federal services under any federal education program. Under the Individuals with Disabilities Education Act (IDEA), students with disabilities are entitled to receive special education and related services if they attend a private school. This `equitable participation of private schools' provision is an important component of special education law and is mirrored in all major education statutes passed by the Committee, including the Elementary and Secondary Education Act (ESEA). Although private schools and their students do receive services entitled to them under the law, they do not receive funding. Nonetheless, they are covered by the bill's provisions, establishing a dangerous precedent that has been rejected for decades of federal education law.] [Footnote 5: See `Testimony of Gregory D. Kutz, Managing Director of Forensic Audits and Special Investigations, U.S. Government Accountability Office (GAO), Hearing, U.S. House of Representatives, Committee on Education and Labor, Examining the Abusive and Deadly Use of Seclusion and Restraint in Schools' at http://republicans.edlabor.house.gov/Media/file/111th/hearings/fe/051909/gao.pdf.] In their February 17, 2010 letter [Footnote 6: sent to the Committee, the Council for American Private Education (CAPE) states that:] [Footnote 6: For a copy of the letter sent by the Council for American Private Education (CAPE), see http://www.capenet.org/pdf/CAPEHouse4247.pdf.] . . . this legislation would impose an unprecedented degree of federal mandates on religious and independent schools. The class of schools that would be affected by this bill is broad. Based on the definition of `school' found in section 4(11), a religious school with even a single student receiving math or reading instruction under Title I of the Elementary and Secondary Education Act (ESEA) would be subject to all of the provisions of this bill, as would a school receiving a single piece of instructional material or professional development for a single teacher under any other ESEA title. The U.S. Department of Education reported in 2007 that a full 80 percent of Catholic schools across the country participate in one or more programs under ESEA. In the history of education legislation, the federal government has never imposed training or certification requirements on religious and independent schools for any reason (emphasis added). Committee Republicans support long-standing federal policy that exempts private schools from the overreach of the federal government and urge the Democratic majority to exclude private schools from the provisions of H.R. 4247. This legislation represents an unprecedented expansion of the federal government into the affairs of private schools. In practice and contrary to the authors' intentions, most private schools may simply stop educating disruptive students, including disabled students, or decline the services offered by local school districts instead of subjecting themselves to federal control if this bill were to become law. Inclusion of language that may open states and school districts up to litigation Fourth, Committee Republicans believe H.R. 4247 may expose states and school districts to unnecessary and damaging litigation. While this bill does not contain a private right of action, it contains vague language on restricted actions and explicit language empowering the Protection and Advocacy system to investigate and enforce the protections under this Act, which would open schools to potential litigation. For example, the bill includes broad phrases such as requiring states to restrict `aversive behavioral interventions that compromise health and safety,' an undefined term that would be defined and litigated across the country. Additionally, trial lawyers could be empowered to sue the 21 states that currently allow corporal punishment, since advocates may make the case that it compromises student health and safety. The legislation would also expand the role of the Protection and Advocacy system, the state-based system of trial lawyers, to enforce the protections under the bill. In addition to these provisions, the bill's restriction on the use of restraints that could be used to protect the safety of teachers and the majority of students in the classroom could in itself open states and school districts to additional litigation. The lawsuits may come not only from overreaching trial lawyers intent on suing school districts for using restraint and seclusion techniques, but also from school personnel and students who were harmed because schools were not allowed to control disruptive students. In order to avoid these and other lawsuits, schools may simply stop disciplining students and default to calling law enforcement to intercede rather than violate the law and guidance. This situation has occurred in several states, such as Kansas, which have implemented vague or overreaching restraint and seclusion requirements. As the American Association of School Administrators (AASA), the national association representing 13,000 educational leaders around the country, pointed out in their February 2, 2010 [Footnote 7: letter to the Committee:] [Footnote 7: For a copy of the letter sent by the American Association of School Administrators (AASA) see http://www.aasa.org/uploadedFiles/PolicyXandXAdvocacy/files/Ed%20Labr%20 Cmte%20.Letter%20020210.pdf.] . . . the policy in HR. 4247 may result in schools relying on police to handle more dangerous situations because action by school employees is too restrained to be safely undertaken . . . the restrictive rules . . . will mean that students who have a history of explosive outbursts will be increasingly placed in more restrictive settings to reduce the difficulties of teachers in protecting students during violent outbursts. Again, supporters of H.R. 4247 claim it will not breed litigation because it does not expressly contain a private right of action. But, in reality, this bill will open schools to increased litigation through the power given to the protection and advocacy organizations under this bill and existing law. Conclusion As outlined in these Republican Views, Committee Republicans believe all students, regardless of their educational ability or behavioral problems, deserve to be treated with respect and are entitled to a safe and rich learning environment. While the federal government lacks any reliable and relevant information on the prevalence of restraint and seclusion techniques at public and/or private schools, state and local leaders are taking important steps to protect the safety of their students after recent revelations that school personnel have misused restraint techniques and seclusion rooms. Committee Republicans certainly
understand the goals of H.R. 4247; we support efforts to protect our
children from abuse, neglect, and harm. However, we remain concerned that
the bill legislates prematurely, ignores the work of the 31 states that
have laws in place restricting the use of restraint and seclusion
policies, creates a one-size-fits-all framework, imposes unprecedented
bureaucratic and burdensome requirements on independent private schools,
and opens states and school districts to a litany of lawsuits that will
enrich trial lawyers.
SECTION BY SECTION ANALYSIS This section-by-section analysis is based upon the bill as amended with the Amendment in the Nature of a Substitute that was adopted by the Committee. Sec. 1. Short title. Provides that the short title is the `Preventing Abusive Restraint and Seclusion in Schools Act of 2009.' Sec. 2. Findings. Acknowledges the physical and emotional risks of physical restraint and seclusion in the educational setting, and acknowledges the right of all children to be supported in, as well as school personnel to work in, a safe and healthy educational environment. Sec. 3. Purposes. Indicates the purpose of the Act is to prevent and reduce physical restraint or seclusion in schools, ensure the safety of students and staff, protect students from physical or mental abuse, and support policies and procedures that promote a positive educational environment. Also to provide assistance to States, local educational agencies and schools for staff training, data collection and implementing evidence-based models. Sec. 4. Definitions. Includes definitions of chemical restraint, educational service agency, elementary school, local educational agency, mechanical restraint, parent, physical escort, physical restraint, positive behavior supports, protection and advocacy system, school, school personnel, secondary school, seclusion, secretary, state-approved crisis intervention training program, state, state educational agency, student, time out. Sec. 5. Minimum standards and rules of construction. Provides for minimum safety standards related to the use of physical restraint and seclusion in schools, and requires the Secretary of Education to issue regulations establishing such standards. The standards prohibit the use of mechanical restraints, chemical restraints, physical restraint or escort that restricts breathing, and aversive behavioral interventions that compromise health and safety. The standards limit the imposition of physical restraint or seclusion, require states to ensure that a sufficient number of personnel are trained to meet students' needs, and require parental notification after seclusion or restraint have been imposed upon a student. The standards also prohibit inclusion of physical restraint or seclusion as planned interventions written into student education plans or programs. Sec. 6. State plan and report requirements and enforcement. Requires States to submit to the Secretary their policies and procedures that are in effect and are consistent with the minimum federal standards. Requires States to report disaggregated data on restraint and seclusion incidents. Provides for enforcement of the standards through withholding of funds, a corrective plan of action or a cease and desist order. Sec. 7. Grant authority. Provides the Secretary authority to award grants to States to support activities in order to meet the minimum standards established in federal regulations, to collect data, and to implement school-wide positive behavior support approaches. Provides for the conditions of grants and subgrants, including required and allowable activities and reporting. Sec. 8. National assessment. Requires the Secretary to conduct a national assessment to determine the effectiveness of the Act and submit a report to Congress. Sec. 9. Protection and advocacy systems. Reinforces Protection and Advocacy Systems authority to investigate, monitor and enforce protections provided under the Act. Sec. 10. Head Start programs. Requires the Secretary of Health and Human Services to promulgate regulations for Head Start agencies that establish standards consistent with this Act. Sec. 11. Limitation of authority. Clarifies that the Act does not preempt rights or remedies available under Federal or State law or regulation. Provides non-applicability for private schools that do not receive federal support and for homeschools. Sec. 12. Authorization of appropriations. This section authorizes such sums for 2011 and four succeeding years.
AMENDMENTS
All Rights Reserved. © 2010 TheWeekInCongress.com(TM) No reproduction, language translation or distribution without written permission from TheWeekInCongress.com.(TM)
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