[House Report 111-417]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 111-417
======================================================================
PREVENTING HARMFUL RESTRAINT AND SECLUSION IN SCHOOLS ACT
_______
February 23, 2010.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. George Miller of California, from the Committee on Education and
Labor, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 4247]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 4247) to prevent and reduce the use of physical
restraint and seclusion in schools, and for other purposes,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Preventing Harmful Restraint and
Seclusion in Schools Act''.
SEC. 2. 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.
SEC. 3. PURPOSES.
The purposes of this Act are to--
(1) prevent and reduce the use of physical restraint and
seclusion in schools;
(2) ensure the safety of all students and school personnel in
schools and promote a positive school culture and climate;
(3) protect students from--
(A) physical or mental abuse;
(B) aversive behavioral interventions that compromise
health and safety; and
(C) any physical restraint or seclusion imposed
solely for purposes of discipline or convenience;
(4) ensure that physical restraint and seclusion are imposed
in school only when a student's behavior poses an imminent
danger of physical injury to the student, school personnel, or
others; and
(5) assist States, local educational agencies, and schools
in--
(A) establishing policies and procedures to keep all
students, including students with the most complex and
intensive behavioral needs, and school personnel safe;
(B) providing school personnel with the necessary
tools, training, and support to ensure the safety of
all students and school personnel;
(C) collecting and analyzing data on physical
restraint and seclusion in schools; and
(D) identifying and implementing effective evidence-
based models to prevent and reduce physical restraint
and seclusion in schools.
SEC. 4. DEFINITIONS.
In this Act:
(1) Chemical restraint.--The term ``chemical restraint''
means a drug or medication used on a student to control
behavior or restrict freedom of movement that is not--
(A) prescribed by a licensed physician for the
standard treatment of a student's medical or
psychiatric condition; and
(B) administered as prescribed by the licensed
physician.
(2) Educational service agency.--The term ``educational
service agency'' has the meaning given such term in section
9101(17) of the Elementary and Secondary Education Act of 1965
(20 U.S.C. 7801(17)).
(3) Elementary school.--The term ``elementary school'' has
the meaning given the term in section 9101(18) of the
Elementary and Secondary Education Act of 1965 (20 U.S.C.
7801(18)).
(4) Local educational agency.--The term ``local educational
agency'' has the meaning given the term in section 9101(26) of
the Elementary and Secondary Education Act of 1965 (20 U.S.C.
7801(26)).
(5) Mechanical restraint.--The term ``mechanical restraint''
has the meaning given the term in section 595(d)(1) of the
Public Health Service Act (42 U.S.C. 290jj(d)(1)), except that
the meaning shall be applied by substituting ``student's'' for
``resident's''.
(6) Parent.--The term ``parent'' has the meaning given the
term in section 9101(31) of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 7801(31)).
(7) Physical escort.--The term ``physical escort'' has the
meaning given the term in section 595(d)(2) of the Public
Health Service Act (42 U.S.C. 290jj(d)(2)), except that the
meaning shall be applied by substituting ``student'' for
``resident''.
(8) Physical restraint.--The term ``physical restraint'' has
the meaning given the term in section 595(d)(3) of the Public
Health Service Act (42 U.S.C. 290jj(d)(3)).
(9) Positive behavior supports.--The term ``positive behavior
supports'' means a systematic approach to embed evidence-based
practices and data-driven decisionmaking to improve school
climate and culture, including a range of systemic and
individualized strategies to reinforce desired behaviors and
diminish reoccurrence of problem behaviors, in order to achieve
improved academic and social outcomes and increase learning for
all students, including those with the most complex and
intensive behavioral needs.
(10) Protection and advocacy system.--The term ``protection
and advocacy system'' means a protection and advocacy system
established under section 143 of the Developmental Disabilities
Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15043).
(11) School.--The term ``school'' means an entity--
(A) that--
(i) is a public or private--
(I) day or residential elementary
school or secondary school; or
(II) 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
(ii) 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
(B) that is a school funded or operated by the
Department of the Interior.
(12) School personnel.--The term ``school personnel'' has the
meaning--
(A) given the term in section 4151(10) of the
Elementary and Secondary Education Act of 1965 (20
U.S.C. 7161(10)); and
(B) given the term ``school resource officer'' in
section 4151(11) of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 7161(11)).
(13) Secondary school.--The term ``secondary school'' has the
meaning given the term in section 9101(38) of the Elementary
and Secondary Education Act of 1965 (20 U.S.C. 7801(38)).
(14) Seclusion.--The term ``seclusion'' has the meaning given
the term in section 595(d)(4) of the Public Health Service Act
(42 U.S.C. 290jj(d)(4)).
(15) Secretary.--The term ``Secretary'' means the Secretary
of Education.
(16) State-approved crisis intervention training program.--
The term ``State-approved crisis intervention training
program'' means a training program approved by a State and the
Secretary that, at a minimum, provides--
(A) evidence-based techniques shown to be effective
in the prevention of physical restraint and seclusion;
(B) evidence-based techniques shown to be effective
in keeping both school personnel and students safe when
imposing physical restraint or seclusion;
(C) evidence-based skills training related to
positive behavior supports, safe physical escort,
conflict prevention, understanding antecedents, de-
escalation, and conflict management;
(D) first aid and cardiopulmonary resuscitation;
(E) information describing State policies and
procedures that meet the minimum standards established
by regulations promulgated pursuant to section 5(a);
and
(F) certification for school personnel in the
techniques and skills described in subparagraphs (A)
through (D), which shall be required to be renewed on a
periodic basis.
(17) State.--The term ``State'' has the meaning given the
term in section 9101 of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7801).
(18) State educational agency.--The term ``State educational
agency'' has the meaning given the term in section 9101(41) of
the Elementary and Secondary Education Act of 1965 (20 U.S.C.
7801(41)).
(19) Student.--The term ``student'' means a student enrolled
in a school defined in section 11, except that in the case of a
private school or private program, such term means a student
enrolled in such school or program who receives support in any
form from any program supported, in whole or in part, with
funds appropriated to the Department of Education.
(20) Time out.--The term ``time out'' has the meaning given
the term in section 595(d)(5) of the Public Health Service Act
(42 U.S.C. 290jj(d)(5)), except that the meaning shall be
applied by substituting ``student'' for ``resident''.
SEC. 5. MINIMUM STANDARDS; RULE OF CONSTRUCTION.
(a) Minimum Standards.--Not later than 180 days after the date of the
enactment of this Act, in order to protect each student from physical
or mental abuse, aversive behavioral interventions that compromise
student health and safety, or any physical restraint or seclusion
imposed solely for purposes of discipline or convenience or in a manner
otherwise inconsistent with this Act, the Secretary shall promulgate
regulations establishing the following minimum standards:
(1) School personnel shall be prohibited from imposing on any
student the following:
(A) Mechanical restraints.
(B) Chemical restraints.
(C) Physical restraint or physical escort that
restricts breathing.
(D) Aversive behavioral interventions that compromise
health and safety.
(2) School personnel shall be prohibited from imposing
physical restraint or seclusion on a student unless--
(A) the student's behavior poses an imminent danger
of physical injury to the student, school personnel, or
others;
(B) less restrictive interventions would be
ineffective in stopping such imminent danger of
physical injury;
(C) such physical restraint or seclusion is imposed
by school personnel who--
(i) continuously monitor the student face-to-
face; or
(ii) if school personnel safety is
significantly compromised by such face-to-face
monitoring, are in continuous direct visual
contact with the student;
(D) such physical restraint or seclusion is imposed
by--
(i) school personnel trained and certified by
a State-approved crisis intervention training
program (as defined in section 4(16)); or
(ii) other school personnel in the case of a
rare and clearly unavoidable emergency
circumstance when school personnel trained and
certified as described in clause (i) are not
immediately available due to the unforeseeable
nature of the emergency circumstance; and
(E) such physical restraint or seclusion end
immediately upon the cessation of the conditions
described in subparagraphs (A) and (B).
(3) States and local educational agencies shall ensure that a
sufficient number of personnel are trained and certified by a
State-approved crisis intervention training program (as defined
in section 4(16)) to meet the needs of the specific student
population in each school.
(4) The use of physical restraint or seclusion as a planned
intervention shall not be written into a student's education
plan, individual safety plan, behavioral plan, or
individualized education program (as defined in section 602 of
the Individuals with Disabilities Education Act (20 U.S.C.
1401)). Local educational agencies or schools may establish
policies and procedures for use of physical restraint or
seclusion in school safety or crisis plans, provided that such
school plans are not specific to any individual student.
(5) Schools shall establish procedures to be followed after
each incident involving the imposition of physical restraint or
seclusion upon a student, including--
(A) procedures to provide to the parent of the
student, with respect to each such incident--
(i) an immediate verbal or electronic
communication on the same day as each such
incident; and
(ii) within 24 hours of each such incident,
written notification; and
(B) any other procedures the Secretary determines
appropriate.
(b) Secretary of the Interior.--The Secretary of the Interior shall
ensure that schools operated or funded by the Department of the
Interior comply with the regulations promulgated by the Secretary under
subsection (a).
(c) Rule of Construction.--Nothing in this section shall be construed
to authorize the Secretary to promulgate regulations prohibiting the
use of--
(1) time out (as defined in section 4(20)); or
(2) 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--
(A) restraints for medical immobilization;
(B) 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
(C) vehicle safety restraints when used as intended
during the transport of a student in a moving vehicle;
or
(3) 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)))--
(A) in the--
(i) case when a student's behavior poses an
imminent danger of physical injury to the
student, school personnel, or others; or
(ii) lawful exercise of law enforcement
duties; and
(B) less restrictive interventions would be
ineffective.
SEC. 6. STATE PLAN AND REPORT REQUIREMENTS AND ENFORCEMENT.
(a) State Plan.--Not later than 2 years after the Secretary
promulgates regulations pursuant to section 5(a), and each year
thereafter, each State educational agency shall submit to the Secretary
a State plan that provides--
(1) assurances to the Secretary that the State has in
effect--
(A) State policies and procedures that meet the
minimum standards, including the standards with respect
to State-approved crisis intervention training
programs, established by regulations promulgated
pursuant to section 5(a); and
(B) a State mechanism to effectively monitor and
enforce the minimum standards;
(2) a description of the State policies and procedures,
including a description of the State-approved crisis
intervention training programs in such State; and
(3) a description of the State plans to ensure school
personnel and parents, including private school personnel and
parents, are aware of the State policies and procedures.
(b) Reporting.--
(1) Reporting requirements.--Not later than 2 years after the
date the Secretary promulgates regulations pursuant to section
5(a), and each year thereafter, each State educational agency
shall (in compliance with the requirements of section 444 of
the General Education Provisions Act (commonly known as the
``Family Educational Rights and Privacy Act of 1974'') (20
U.S.C. 1232g)) prepare and submit to the Secretary, and make
available to the public, a report with respect to each local
educational agency, and each school not under the jurisdiction
of a local educational agency, located in the same State as
such State educational agency that includes the information
described in paragraph (2).
(2) Information requirements.--
(A) General information requirements.--The report
described in paragraph (1) shall include information
on--
(i) the total number of incidents in the
preceding full-academic year in which physical
restraint was imposed upon a student; and
(ii) the total number of incidents in the
preceding full-academic year in which seclusion
was imposed upon a student.
(B) Disaggregation.--
(i) General disaggregation requirements.--The
information described in subparagraph (A) shall
be disaggregated by--
(I) the total number of incidents in
which physical restraint or seclusion
was imposed upon a student--
(aa) that resulted in injury;
(bb) that resulted in death;
and
(cc) in which the school
personnel imposing physical
restraint or seclusion were not
trained and certified as
described in section
5(a)(2)(D)(i); and
(II) the demographic characteristics
of all students upon whom physical
restraint or seclusion was imposed,
including--
(aa) the categories
identified in section
1111(h)(1)(C)(i) of the
Elementary and Secondary
Education Act of 1965 (20
U.S.C. 6311(h)(1)(C)(i));
(bb) age; and
(cc) disability status (which
has the meaning given the term
``individual with a
disability'' in section 7(20)
of the Rehabilitation Act of
1973 (29 U.S.C. 705(20))).
(ii) Unduplicated count; exception.--The
disaggregation required under clause (i)
shall--
(I) be carried out in a manner to
ensure an unduplicated count of the--
(aa) total number of
incidents in the preceding
full-academic year in which
physical restraint was imposed
upon a student; and
(bb) total number of
incidents in the preceding
full-academic year in which
seclusion was imposed upon a
student; and
(II) not be required in a case in
which the number of students in a
category would reveal personally
identifiable information about an
individual student.
(c) Enforcement.--
(1) In general.--
(A) Use of remedies.--If a State educational agency
fails to comply with subsection (a) or (b), the
Secretary shall--
(i) withhold, in whole or in part, further
payments under an applicable program (as such
term is defined in section 400(c) of the
General Education Provisions Act (20 U.S.C.
1221)) in accordance with section 455 of such
Act (20 U.S.C. 1234d);
(ii) require a State educational agency to
submit, and implement, within 1 year of such
failure to comply, a corrective plan of action,
which may include redirection of funds received
under an applicable program; or
(iii) issue a complaint to compel compliance
of the State educational agency through a cease
and desist order, in the same manner the
Secretary is authorized to take such action
under section 456 of the General Education
Provisions Act (20 U.S.C. 1234e).
(B) Cessation of withholding of funds.--Whenever the
Secretary determines (whether by certification or other
appropriate evidence) that a State educational agency
who is subject to the withholding of payments under
subparagraph (A)(i) has cured the failure providing the
basis for the withholding of payments, the Secretary
shall cease the withholding of payments with respect to
the State educational agency under such subparagraph.
(2) Rule of construction.--Nothing in this subsection shall
be construed to limit the Secretary's authority under the
General Education Provisions Act (20 U.S.C. 1221 et seq.).
SEC. 7. GRANT AUTHORITY.
(a) In General.--From the amount appropriated under section 12, the
Secretary may award grants to State educational agencies to assist the
agencies in--
(1) establishing, implementing, and enforcing the policies
and procedures to meet the minimum standards established by
regulations promulgated by the Secretary pursuant to section
5(a);
(2) improving State and local capacity to collect and analyze
data related to physical restraint and seclusion; and
(3) improving school climate and culture by implementing
school-wide positive behavior support approaches.
(b) Duration of Grant.--A grant under this section shall be awarded
to a State educational agency for a 3-year period.
(c) Application.--Each State educational agency desiring a grant
under this section shall submit an application to the Secretary at such
time, in such manner, and accompanied by such information as the
Secretary may require, including information on how the State
educational agency will target resources to schools and local
educational agencies in need of assistance related to preventing and
reducing physical restraint and seclusion.
(d) Authority to Make Subgrants.--
(1) In general.--A State educational agency receiving a grant
under this section may use such grant funds to award subgrants,
on a competitive basis, to local educational agencies.
(2) Application.--A local educational agency desiring to
receive a subgrant under this section shall submit an
application to the applicable State educational agency at such
time, in such manner, and containing such information as the
State educational agency may require.
(e) Private School Participation.--
(1) In general.--A local educational agency receiving
subgrant funds under this section shall, after timely and
meaningful consultation with appropriate private school
officials, ensure that private school personnel can
participate, on an equitable basis, in activities supported by
grant or subgrant funds.
(2) Public control of funds.--The control of funds provided
under this section, and title to materials, equipment, and
property purchased with such funds, shall be in a public
agency, and a public agency shall administer such funds,
materials, equipment, and property.
(f) Required Activities.--A State educational agency receiving a
grant, or a local educational agency receiving a subgrant, under this
section shall use such grant or subgrant funds to carry out the
following:
(1) Researching, developing, implementing, and evaluating
strategies, policies, and procedures to prevent and reduce
physical restraint and seclusion in schools, consistent with
the minimum standards established by regulations promulgated by
the Secretary pursuant to section 5(a).
(2) Providing professional development, training, and
certification for school personnel to meet such standards.
(3) Carrying out the reporting requirements under section
6(b) and analyzing the information included in a report
prepared under such section to identify student, school
personnel, and school needs related to use of physical
restraint and seclusion.
(g) Additional Authorized Activities.--In addition to the required
activities described in subsection (f), a State educational agency
receiving a grant, or a local educational agency receiving a subgrant,
under this section may use such grant or subgrant funds for one or more
of the following:
(1) Developing and implementing high-quality professional
development and training programs to implement evidence-based
systematic approaches to school-wide positive behavior
supports, including improving coaching, facilitation, and
training capacity for administrators, teachers, specialized
instructional support personnel, and other staff.
(2) Providing technical assistance to develop and implement
evidence-based systematic approaches to school-wide positive
behavior supports, including technical assistance for data-
driven decision-making related to behavioral supports and
interventions in the classroom.
(3) Researching, evaluating, and disseminating high-quality
evidence-based programs and activities that implement school-
wide positive behavior supports with fidelity.
(4) Supporting other local positive behavior support
implementation activities consistent with this subsection.
(h) Evaluation and Report.--Each State educational agency receiving a
grant under this section shall, at the end of the 3-year grant period
for such grant--
(1) evaluate the State's progress toward the prevention and
reduction of physical restraint and seclusion in the schools
located in the State, consistent with the minimum standards
established by regulations promulgated by the Secretary
pursuant to section 5(a); and
(2) submit to the Secretary a report on such progress.
(i) Department of the Interior.--From the amount appropriated under
section 12, the Secretary may allocate funds to the Secretary of the
Interior for activities under this section with respect to schools
operated or funded by the Department of the Interior, under such terms
as the Secretary of Education may prescribe.
SEC. 8. NATIONAL ASSESSMENT.
(a) National Assessment.--The Secretary shall carry out a national
assessment to determine the effectiveness of this Act, which shall
include--
(1) analyzing data related to physical restraint and
seclusion incidents;
(2) analyzing the effectiveness of Federal, State, and local
efforts to prevent and reduce the number of physical restraint
and seclusion incidents in schools;
(3) identifying the types of programs and services that have
demonstrated the greatest effectiveness in preventing and
reducing the number of physical restraint and seclusion
incidents in schools; and
(4) identifying evidence-based personnel training models with
demonstrated success in preventing and reducing the number of
physical restraint and seclusion incidents in schools,
including models that emphasize positive behavior supports and
de-escalation techniques over physical intervention.
(b) Report.--The Secretary shall submit to the Committee on Education
and Labor of the House of Representatives and the Committee on Health,
Education, Labor, and Pensions of the Senate--
(1) an interim report that summarizes the preliminary
findings of the assessment described in subsection (a) not
later than 3 years after the date of enactment of this Act; and
(2) a final report of the findings of the assessment not
later than 5 years after the date of the enactment of this Act.
SEC. 9. PROTECTION AND ADVOCACY SYSTEMS.
Protection and Advocacy Systems shall have the authority provided
under section 143 of the Developmental Disabilities Assistance and Bill
of Rights Act of 2000 (42 U.S.C. 15043) to investigate, monitor, and
enforce protections provided for students under this Act.
SEC. 10. HEAD START PROGRAMS.
(a) Regulations.--The Secretary of Health and Human Services, in
consultation with the Secretary, shall promulgate regulations with
respect to Head Start agencies administering Head Start programs under
the Head Start Act (42 U.S.C. 9801 et seq.) that establish requirements
consistent with--
(1) the requirements established by regulations promulgated
pursuant to section 5(a); and
(2) the reporting and enforcement requirements described in
subsections (b) and (c) of section 6.
(b) Grant Authority.--From the amount appropriated under section 12,
the Secretary may allocate funds to the Secretary of Health and Human
Services to assist the Head Start agencies in establishing,
implementing, and enforcing policies and procedures to meet the
requirements established by regulations promulgated pursuant to
subsection (a).
SEC. 11. LIMITATION OF AUTHORITY.
(a) In General.--Nothing in this Act shall be construed to restrict
or limit, or allow the Secretary to restrict or limit, any other rights
or remedies otherwise available to students or parents under Federal or
State law or regulation.
(b) Applicability.--
(1) Private schools.--Nothing in this Act shall be construed
to affect any private school that does not receive, or does not
serve students who receive, support in any form from any
program supported, in whole or in part, with funds appropriated
to the Department of Education.
(2) Home schools.--Nothing in this Act shall be construed
to--
(A) affect a home school, whether or not a home
school is treated as a private school or home school
under State law; or
(B) consider parents who are schooling a child at
home as school personnel.
SEC. 12. AUTHORIZATION OF APPROPRIATIONS.
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.
I. PURPOSE
The purpose of H.R. 4247 is to prevent and reduce the use
of physical restraint and seclusion in public and private
schools and to promote a positive school culture that ensures
the safety of all students and personnel.
II. COMMITTEE ACTION
Full committee hearing: ``Examining the Abusive and Deadly Use of
Seclusion and Restraint in Schools''
On Tuesday, May 19, 2009, the Committee on Education and
Labor held a hearing entitled, ``Examining the Abusive and
Deadly Use of Seclusion and Restraint in Schools.'' The purpose
of the hearing was to understand the nature and magnitude of
the practice of abusive restraint and seclusion in public and
private schools. The hearing focused on 10 cases, each
resulting in the death or injury of a child, and included
testimony from parents whose children had been harmed or died
in restraint and seclusion incidents. The hearing exposed
hundreds of cases of alleged abuse and at least 20 deaths
related to the use of these methods, the devastating effects on
the victims and their families, and the widely divergent state
and local policies regulating the use of restraint and
seclusion in schools. Testifying before the full Committee were
Greg Kutz, Managing Director of Forensic Audits and Special
Investigations, U.S. Government Accountability Office; Toni
Price, Foster mother of a child victim who died; Anne Gaydos,
Mother of a child victim; Elizabeth Hanselman, Assistant
Superintendent for Special Education and Support Services,
Springfield, Illinois; and Reece L. Peterson, Ph.D., Professor
of Special Education, University of Nebraska.
Introduction of the ``Preventing Harmful Restraint and Seclusion in
Schools Act''
On Wednesday, December 9, 2009, Representatives George
Miller (D-CA) and Cathy McMorris Rodgers (R-WA) introduced H.R.
4247, the ``Preventing Harmful Restraint and Seclusion in
Schools Act.'' The bill sets out minimum standards limiting the
use of restraint and seclusion in schools in order to ensure
the safety of all students and personnel, and requires states
to demonstrate that they have established, and will monitor and
enforce, policies and procedures consistent with the federal
standards.
Full Committee markup of H.R. 4247
On Thursday, February 4, 2010, the Committee on Education
and Labor considered H.R. 4247 in legislative session, and
reported the bill favorably, as amended, to the House of
Representatives by a vote of 34-10.
The Committee adopted an amendment in the nature of a
substitute offered by Mr. Miller, by voice vote. The amendment
in the nature of a substitute contains minor technical edits
and the following changes to H.R. 4247:
provides for the inclusion of Bureau of
Indian Education schools;
requires state-approved crisis intervention
training programs to describe state policies and
procedures and to offer techniques for maintaining the
safety of school personnel;
permits school resource officers to use
handcuffs in cases of imminent danger or in the lawful
exercise of law enforcement duties;
ensures that private school personnel have
equitable access to activities supported by the
legislation, and clarifies that private schools that do
not receive support from funds appropriated to the
Department of Education are excluded from the
provisions of this Act; and
excludes home schools from the provisions of
this Act.
No further amendments were adopted.
III. SUMMARY OF THE BILL
H.R. 4247 establishes minimum safety standards to limit the
use of restraint and seclusion in public and private early
childhood, elementary and secondary schools that receive any
form of support from federal education funds, as well as Head
Start programs. The bill requires the Secretary of Education to
promulgate regulations based upon the minimum standards, and
gives each state two years to provide assurances that the state
has in effect policies and procedures that meet or exceed the
minimum standards as well as state mechanisms to effectively
monitor and enforce such standards.
The bill prohibits the use of chemical restraints,
mechanical restraints and physical restraints that restrict
breathing, and aversive behavioral interventions that
compromise health and safety.
H.R. 4247 establishes the conditions under which school
personnel may implement physical restraint and seclusion, using
such terms as defined by the Public Health Service Act. The
bill limits the use of physical restraint and seclusion to
circumstances when a student's behavior poses an imminent
danger of physical injury and less restrictive interventions
would be ineffective, and requires the cessation of the
intervention when the danger has ended.
The bill also requires school personnel implementing
physical restraint or seclusion to be trained and certified,
and to continuously monitor students when using such
interventions. The standards provide for emergency
circumstances when no trained staff are immediately available.
Under the bill, states and school districts must ensure that a
sufficient number of personnel are trained and certified to
meet the specific needs of the student population in each
school.
H.R. 4247 prohibits physical restraint or seclusion to be
written as planned interventions into individual student
education documents, but does allow for classroom or school
crisis plans. The standards also require schools to establish
procedures to be followed after incidents, including parental
notification.
Within two years, states must submit assurances to the
Secretary that the state has in place policies and procedures
to meet the minimum standards and mechanisms to monitor and
enforce such standards. States are also required to report the
number of restraint and seclusion incidents annually. For
states that do not submit the required assurances or data, the
Secretary shall withhold funds, require a corrective action
plan or compel compliance through a cease and desist order.
H.R. 4247 provides for a discretionary grant program to
assist states, districts, and schools to establish, implement
and enforce state standards, to support collection and analysis
of data, to support staff training, and to improve school
climate and culture through the implementation of school-wide
positive behavior supports.
The bill requires the Secretary to carry out a national
assessment to determine the effectiveness of the Act in
preventing and reducing restraint and seclusion incidents in
schools.
To carry out the Act, H.R. 4247 authorizes the
appropriation of such sums as may be necessary for each of
fiscal years 2011-2015.
IV. COMMITTEE VIEWS
Background
Over the past two decades, a number of government, media
and advocacy organizations have reported deaths, injuries and
psychological harm caused by the use of restraint and seclusion
in a variety of settings. In 1999, the Government
Accountability Office (GAO) issued a report entitled, ``Mental
Health: Extent of Risk From Improper Restraint or Seclusion is
Unknown,'' which concluded that policies covering restraint and
seclusion vary widely among federal programs, states, and types
of facilities. Additionally, GAO indicated that ``the
experience of several states shows that the use of restraint
and seclusion can be reduced and that patients and staff are
safer as a result.''\1\
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\1\Testimony of Leslie G. Aronovitz, Associate Director, Health
Financing and Public Health Issues, GAO/HEHS, Hearing, U.S. Senate,
Committee on Finance, Mental Health: Extent of Risk From Improper
Restraint or Seclusion is Unknown, October 26, 1999. http://
www.gao.gov/archive/2000/he00026t.pdf.
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In 2002, the Child Welfare League of America (CWLA)
estimated that between eight and 10 children in the United
States die each year due to restraint, while many more suffer
injuries.\2\ In 2003, the President's New Freedom Commission on
Mental Health reported on significant risks related to the use
of restraint and seclusion, including serious injury or death,
psychological harm (especially for individuals with a history
of trauma), loss of dignity, and other dangers, and recommended
that restraint or seclusion use be reduced.\3\ In recent years,
the Substance Abuse and Mental Health Services Administration's
(SAMHSA) Center for Mental Health Services (CMHS) has
established initiatives to promote the implementation and
evaluation of best practice approaches to preventing and
reducing the use of restraint and seclusion in mental health
settings, acknowledging the goal of safe outcomes, for both
individuals served and for staff, that can be met by reducing
and eliminating restraint and seclusion use.\4\
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\2\CWLA 2002
\3\President's New Freedom Commission on Mental Health. (2003).
Achieving the promise: Transforming Mental Health Care in America.
Rockville, MD: U.S. Department of Health and Human Services (DHHS Pub.
No. SMA-03-3831).
\4\See http://ars.samhsa.gov/index.asp.
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Congress enacted provisions establishing federal
protections against the improper use of restraint and seclusion
in facilities receiving federal health funds in the Children's
Health Act of 2000 (Pub. L. 106-310). The statute protects the
rights of children and youth in public and private hospitals,
nursing facilities, intermediate care facilities, non-medical
community-based facilities, and other health care facilities.
The Children's Health Act restricts the use of restraint and
seclusion to emergency circumstances only to ensure the
immediate physical safety of both children and staff.
Yet these basic protections do not apply to students in
educational settings. The Committee believes this is an urgent
problem that must be addressed before more children are harmed
by the misuse of restraint and seclusion.
Restraint and seclusion in the schools
Recent reports have documented tragic outcomes for hundreds
of students when restraint or seclusion have been used in
school settings. The National Disability Rights Network issued
a report in January 2009 detailing allegations of the harmful
use of these interventions in over two-thirds of the states,
involving children as young as three years old in both public
and private school settings.\5\ The Council of Parent Advocates
and Attorneys chronicled additional cases in a May 2009 report,
arguing that the use of restraint, seclusion and other aversive
interventions in schools is ``extensive'' and most often
applied to children under the age of 11.\6\
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\5\National Disability Rights Network. (2009). School is Not
Supposed to Hurt: Investigative Report on Abusive Restraint and
Seclusion in Schools. http://www.napas.org/sr/SR-Report.pdf.
\6\Butler, Jessica. (2009). Unsafe in the Schoolhouse: Abuse of
Children With Disabilities. COPAA. http://www.copaa.org/pdf/
UnsafeCOPAAMay_27_2009.pdf.
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According to the Council for Children with Behavioral
Disorders (CCBD), ``Historically, a wide variety of injuries
and deaths have occurred while students are in seclusion
environments including suicide, electrocution, and self injury
due to cutting, pounding, and head banging. Additionally
students have been denied access to toilets, food, or water
while in seclusion environments.''\7\ CCBD also reports,
``physical restraints have been in widespread use across most
human service, medical, juvenile justice, and education agency
programs for a long period of time. While there have been some
who have proposed physical restraint as a therapeutic procedure
for some children, this view has no scientific basis and is
generally discredited.''\8\
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\7\The Council for Children with Behavioral Disorders. (2009).
CCBD's Position Summary on: The Use of Seclusion in School Settings.
http://www.ccbd.net/documents/CCBD%20
Position%20on%20Use%20of%20Seclusion%207-8-09.pdf.
\8\The Council for Children with Behavioral Disorders. (2009).
CCBD's Position Summary on: The Use of Physical Restraint Procedures in
School Settings. http://www.ccbd.net/documents/
CCBD%20Position%20on%20Use%20of%20Restraint%207-8-09.pdf.
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On May 19, 2009 the Full Committee heard testimony from
Greg Kutz, Managing Director of Forensic Audits and Special
Investigations at GAO, who described shocking and inexcusable
cases of children subjected to abusive use of restraint or
seclusion in schools. Mr. Kutz testified:
Some of the more troubling allegations that we
identified include: a 3-year-old boy being strapped to
a chair and secluded in a timeout room; a 5-year-old
boy having his elbow fractured from a basket hold
restraint; a teenage boy repeatedly being locked in a
four-by-six timeout room and then being forced to stay
there after defecating; a 13-year-old boy hanging
himself in a seclusion room with a cord that teachers
provided to him to hold up his pants; and a 17-year-old
girl choking to death in her own vomit after being held
in a facedown restraint.\9\
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\9\Testimony, Hearing, U.S. House of Representatives, Committee on
Education and Labor, Seclusions and Restraints: Selected Cases of Death
and Abuse at Public and Private Schools and Treatment Centers, May 19,
2009. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=
111_house_hearings&docid=f:49597.pdf.
During the Full Committee hearing, Toni Price testified about
---------------------------------------------------------------------------
the events leading up to her foster son's death. She stated:
The morning of his death, Cedric was put on what the
teacher called delayed lunch. Because he stopped
working about 11 o'clock, this was apparently a common
punishment for him . . . At 2:30, he still hadn't been
allowed to eat his lunch and got up to leave the
classroom. After Cedric attempted to leave the
classroom, he refused to sit back down in his chair, so
the teacher forced him into his chair and restrained
him. She is roughly six feet tall, weighs over 230
pounds. Cedric was short. He was a little--he was a
little boy. Cedric struggled as he was being held in a
chair so the teacher put him face down and sat on him.
He struggled and said repeatedly, `I can't breathe.'
`If you can talk, if you can speak, you can breathe,'
she snapped at him. Shortly after that, he stopped
speaking, and he stopped struggling, and he stopped
moving.
My son was dead.\10\
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\10\Testimony, Toni Price, Foster mother of child victim who died,
Hearing, U.S. House of Representatives, Committee on Education and
Labor, Seclusions and Restraints: Selected Cases of Death and Abuse at
Public and Private Schools and Treatment Centers, May 19, 2009. http://
frwebgate.access.gpo.gov/cgi-bin/
getdoc.cgi?dbname=111_house_hearings&docid=f:49597.pdf.
Unfortunately, these horrifying incidents are not isolated
anecdotes. The GAO found ``hundreds of cases of alleged abuse
and death related to the use of these methods on school
children.'' Yet 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.''\11\ In
the few states that do collect data in schools, tens of
thousands of restraint and seclusion incidents are reported
annually, in both public and private schools. For example, in
Texas and California alone, over 33,000 instances were reported
during the 2007-08 academic year.\12\ Previous government
reports have acknowledged that due to the lack of consistent
reporting requirements, data on restraint and seclusion is
likely to be understated.\13\
---------------------------------------------------------------------------
\11\Testimony of Gregory D. Kutz, Managing Director of Forensic
Audits and Special Investigations, Hearing, U.S. House of
Representatives, Committee on Education and Labor, Seclusions and
Restraints: Selected Cases of Death and Abuse at Public and Private
Schools and Treatment Centers (GAO-09-719T), May 19, 2009. http://
www.gao.gov/new.items/d09719t.pdf.
\12\Testimony of Gregory D. Kutz, Managing Director of Forensic
Audits and Special Investigations, Hearing, U.S. House of
Representatives, Committee on Education and Labor, Seclusions and
Restraints: Selected Cases of Death and Abuse at Public and Private
Schools and Treatment Centers (GAO-09-719T), May 19, 2009. http://
www.gao.gov/new.items/d09719t.pdf.
\13\Testimony of Leslie G. Aronovitz, Associate Director, Health
Financing and Public Health Issues, GAO/HEHS, Hearing, U.S. Senate,
Committee on Finance, Mental Health: Extent of Risk From Improper
Restraint or Seclusion is Unknown, October 26, 1999. http://
www.gao.gov/archive/2000/he00026t.pdf.
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Parents often do not know that their schoolchildren are
being subjected to these interventions. According to the GAO,
only 19 states require parents to be notified after restraints
have been used. Regulations governing parental notification
related to seclusion are even less evident. One recent survey
reported that 66% of parents whose children had been subjected
to seclusion or restraint reported that they were rarely or
never informed when these interventions had been used.\14\
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\14\Marshall, D.S., Smith, C.A., Trader, B.R., & Westling, D.L.,
(2010). Research and Practice for Persons with Severe Disabilities,
Vol. ( ). TASH.
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The GAO found that children, most often children with
disabilities, are subjected to seclusion and restraint at much
higher rates than adults, and are at greater risk of injury as
a result of these practices. Very young children are often at
risk; recent data indicates that children under the age of 12
are restrained or secluded at substantially higher rates than
any other age group.\15\ Even when no physical injury is
sustained, individuals can be severely traumatized during
restraint. Additionally, GAO has previously testified that
physical restraint is often dangerous because such incidents
may involve physical struggling, pressure on the chest, or
other interruptions in breathing.\16\
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\15\(2009). National public rates--Age stratification report.
Behavioral Healthcare Performance Measurement System. Alexandria, VA:
National Association of State Mental Health Program Directors Research
Institute Inc.
\16\Testimony of Leslie G. Aronovitz, Associate Director, Health
Financing and Public Health Issues, GAO/HEHS, Hearing, U.S. Senate,
Committee on Finance, Mental Health: Extent of Risk From Improper
Restraint or Seclusion is Unknown, October 26, 1999. http://
www.gao.gov/archive/2000/he00026t.pdf.
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Students are not alone in being harmed during physical
restraint; research shows that staff are also often injured
when restraining children. In an ergonomics injury survey
conducted by New York State United Teachers in 2000, the number
one cause of injury to special education teachers and aides
involved the restraint of students.\17\ Staff injury rates in
mental health settings where seclusion and restraint are used
have been found to be higher than those in high-risk industries
such as lumber, construction, and mining.\18\ Mental health
professionals argue ``. . . there is no safe restraint, and
that skillful de-escalation (and prevention of a restraint) are
the safest alternatives available to staff members.''\19\
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\17\Ergo-Related Injury Survey Report, November 2000, New York
State United Teachers Research and Educational Services.
\18\Hunter, M.E. & Love, C.C.. (1996). Violence in public sector
psychiatric hospitals. Journal of Psychosocial Nursing, 34(5): 30-34.;
Weiss, E.M., et al. (1998) Deadly restraint: A nationwide pattern of
death. The Hartford Courant, p. A1.
\19\Mohr, Wanda K. (2008). There's No Such Thing as a Safe
Restraint. Gannett Healthcare Group. http://news.nurse.com/apps/
pbcs.dll/article?AID=/20080310/NJ02/80305005.
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Current protections
While the Children's Health Act provides federal
protections for children in health settings, no federal laws
restrict public or private schools in their use of restraint
and seclusion, and state laws vary greatly in this respect. The
GAO reported that 19 states have no laws or regulations
whatsoever. Among states that do have statewide policies, there
is significant variation: for example, seven states regulate
only restraint but not seclusion; two states have rules on
seclusion but not restraint; 17 states require that staff
receive training before being permitted to restrain children;
and eight states specifically prohibit the use of restraints
that impede a child's ability to breathe.\20\
---------------------------------------------------------------------------
\20\Testimony of Gregory D. Kutz, Managing Director of Forensic
Audits and Special Investigations, Hearing, U.S. House of
Representatives, Committee on Education and Labor, Seclusions and
Restraints: Selected Cases of Death and Abuse at Public and Private
Schools and Treatment Centers (GAO-09-719T), May 19, 2009. http://
www.gao.gov/new.items/d09719t.pdf.
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State and local policies also vary in their applicability,
limiting or allowing restraint or seclusion only for children
with disabilities, or in certain circumstances. In many
jurisdictions, the use of restraint or seclusion for
discipline, to force compliance, to prevent property damage, or
for therapeutic purposes is not prohibited, despite the
acknowledged dangers of these techniques, the lack of
therapeutic benefit,\21\ and research demonstrating that use of
restraint and seclusion often exacerbates the behaviors that
staff are trying to eliminate.\22\
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\21\(2009). National executive training institute curriculum for
the creation of violence-free, coercion-free treatment settings and the
reduction of seclusion and restraint, 7th edition. Alexandria, VA:
National Association of State Mental Health Program Directors, Office
of Technical Assistance.
\22\Ellis, J & Magee, S.K. (2001). The detrimental effects of
physical restraint as a consequence for inappropriate classroom
behavior. Journal of Applied Behavioral Analysis, 34(4): 501-504;
Jones, R.J., & Timbers, G.D. (2002). An analysis of the restraint event
and its behavioral effects on clients and staff. Reclaiming Children
and Youth, 11, 37-41.
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The GAO concluded that the hundreds of allegations of
abusive use of restraint and seclusion in public and private
schools across the nation ``raise serious issues for a
significant number of children, families, and those entrusted
with their education and care.''\23\ The GAO investigation, and
the independent reports and research findings related to the
misuse of restraint and seclusion in the schools, indicate an
urgent need for federal action. Children are protected by
federal law from the abusive application of these techniques in
other settings. The Committee expects that children should, at
a minimum, have similar protections in our nation's schools.
---------------------------------------------------------------------------
\23\Testimony of Gregory D. Kutz, Managing Director of Forensic
Audits and Special Investigations, Hearing, U.S. House of
Representatives, Committee on Education and Labor, Seclusions and
Restraints: Selected Cases of Death and Abuse at Public and Private
Schools and Treatment Centers (GAO-09-719T), May 19, 2009. http://
www.gao.gov/new.items/d09719t.pdf.
---------------------------------------------------------------------------
On May 20, 2009, Secretary of Education Arne Duncan
testified before the Committee, and expressed concern ``for the
very disturbing and troubling information that came out of your
hearing yesterday on restraints and seclusion.''\24\ The
Secretary subsequently sent a letter requesting that each state
``develop or review and, if appropriate, revise your State
policies and guidelines to ensure that every student in every
school under your jurisdiction is safe and protected from being
unnecessarily or inappropriately restrained or secluded.''\25\
In the coming weeks, the Department of Education intends to
post on their website a description of the relevant state laws,
regulations, policies, and guidance based upon states'
responses to this request. The Committee believes that, despite
some recent state and local efforts to improve guidelines and
policies related to restraint and seclusion, minimum federal
standards are necessary to keep students safe.
---------------------------------------------------------------------------
\24\Testimony of Secretary of Education Arne Duncan, Hearing, U.S.
House of Representatives, Committee on Education and Labor, The Obama
Administration's Education Agenda, May 20, 2009. http://
frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_house_hearings
&docid=f:49598.wais.
\25\Letter to Chief State School Officers, July 31, 2009, Secretary
Arne Duncan http://www2.ed.gov/policy/elsec/guid/secletter/090731.html.
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Minimum federal standards
The Committee believes that protecting the safety of both
children and personnel in public and private schools is
essential and urgent. Due to the lack of clear state standards
and guidelines, children across the country have experienced
serious harm, and even death, when being restrained or secluded
in educational settings. Many schools do not have adequate
guidance from states in order to establish policies and
procedures to ensure that staff, families and students have a
clear understanding of safe, positive and appropriate responses
to behavioral challenges. Some schools continue to use
restraint or seclusion for discipline or convenience, yet the
use of these interventions for such purposes is illegal in
other settings receiving federal health funds. The GAO
investigation and other reports suggest that staff often do not
have the training and support they need to manage situations
involving undesirable behaviors. Parents are not adequately
informed regarding the use of restraint and seclusion on their
children; often parents have not provided consent nor are they
notified after the fact. Data reporting and transparency
related to the use of restraint and seclusion in the schools is
inconsistent and rarely used to improve school practices.
H.R. 4247 addresses these important issues by establishing
basic minimum safety standards related to the use of restraint
and seclusion in public and private schools that are supported
by federal education resources. The Committee believes it is
critical to encourage the prevention, reduction and elimination
of these interventions. Within 180 days after enactment of H.R.
4247, the Secretary of Education must issue regulations
implementing the minimum standards. The bill requires states to
subsequently establish policies and procedures that meet or
exceed the minimum standards within two years, requires data
reporting to better inform future practice and identify
problems, and provides for grants to assist states, districts
and schools to implement, monitor and enforce the policies. The
Committee believes this balanced approach places necessary
limits on restraint and seclusion consistent with other federal
laws, while also providing state flexibility in implementation
and federal support for schools and districts to utilize
evidence-based practices.
Prohibitions
The Committee is disturbed by reports of children tied to
chairs, held in place by duct tape, inappropriately strapped to
therapeutic equipment, or otherwise restricted in their
movements by mechanical means. As such, H.R. 4247 prohibits the
use of mechanical restraints in schools, other than devices
used for the specific, intended and approved safety or
therapeutic purpose for which they are designed, including
medical immobilization. The Committee does not expect that
mechanical restraints appropriately used for medical
immobilization would include mechanical restraints used solely
for behavior modification. The bill also specifically ensures
that school resource officers may use handcuffs to mechanically
restrain students in emergencies or in the exercise of law
enforcement duties.
The Committee believes the use of chemical restraints
(controlling behavior by using medications in any manner
inconsistent with a doctor's prescription) is inappropriate and
illegal. The bill prohibits chemical restraint in schools.
According to the GAO, many of the restraint deaths have
involved the restriction of the victim's breathing. A
substantial body of evidence has demonstrated the dangers of
restraint-related positional asphyxia (when a person is forced
into a position that does not allow proper and effective
breathing).\26\ While the Committee does not intend to endorse
specific approaches to physical restraint, it is important to
note that many behavioral health experts believe prone (face-
down) restraints should be banned due to the high risk of death
or serious injury. The GAO reports that currently eight states
specifically prohibit the use of prone restraints or restraints
that impede a child's ability to breathe.\27\ It is the
Committee's expectation that any physical restraint or physical
escort that restricts breathing be prohibited, which may
include limitations on certain restraint positions.
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\26\Colorado Association of Family and Children's Agencies, (2006)
The Use of Prone Restraints in Psychiatric Residential Treatment
Facilities: White Paper. Denver, CO. http://www.cafca.net/images/
stories/publications/ProneRestraintPaper.pdf.
\27\Testimony of Gregory D. Kutz, Managing Director of Forensic
Audits and Special Investigations, Hearing, U.S. House of
Representatives, Committee on Education and Labor, Seclusions and
Restraints: Selected Cases of Death and Abuse at Public and Private
Schools and Treatment Centers (GAO-09-719T), May 19, 2009. http://
www.gao.gov/new.items/d09719t.pdf.
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The Committee is concerned about the use of aversive
behavioral interventions that compromise health and safety.
Examples of such interventions used for the purpose of reducing
maladaptive behavior may include, but are not limited to,
contingent electric shock, noxious stimuli in the form of
sprays, tastes, inhalants or other substances, and the
intentional withholding of sleep, shelter, bedding, bathroom
facilities, clothing, nutrition or hydration. H.R. 4247
prohibits the use of aversive behavioral interventions that
compromise health and safety in schools.
Safe and appropriate use of physical restraint and seclusion
The Committee believes the use of physical restraint and
seclusion in public and private schools should be significantly
limited, implemented in circumstances involving imminent danger
ofphysical injury and only until the danger has passed; only
when no other effective options are available to stop such injury; and
when applied by trained staff. H.R. 4247 utilizes many of the standards
and definitions established under the Children's Health Act of 2000. At
the same time, the Committee intends to acknowledge the differences
between the school environment and health facilities.
Based upon similar requirements in other settings, H.R.
4247 requires continuous monitoring of any student being
restrained or secluded. The Committee believes that face-to-
face monitoring is an important safeguard to ensure student
health and safety during physical restraint or seclusion, yet
understands that sometimes personnel will be unable to safely
monitor students face-to-face. In these rare circumstances,
school personnel must maintain direct visual contact with the
student through another safe means, for example, through a
window when a student is in seclusion. The Committee does not
consider video monitoring to offer direct visual contact.
H.R. 4247 limits the use of physical restraint (defined as
a personal restriction that immobilizes or reduces the ability
on an individual to move his or her arms, legs or head freely)
to situations involving a student whose behavior poses an
imminent danger of physical injury. The GAO report revealed a
number of circumstances in which staff physically restrained
students by sitting on the child's torso.\28\ The Committee
anticipates that situations immobilizing the torso would also
be considered physical restraint.
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\28\Testimony of Gregory D. Kutz, Managing Director of Forensic
Audits and Special Investigations, Hearing, U.S. House of
Representatives, Committee on Education and Labor, Seclusions and
Restraints: Selected Cases of Death and Abuse at Public and Private
Schools and Treatment Centers (GAO-09-719T), May 19, 2009. http://
www.gao.gov/new.items/d09719t.pdf.
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The Committee believes that as part of a safe, positive,
productive learning environment for all students, school
personnel may have reasonable, temporary physical contact with
students that is not considered physical restraint. Physical
restraint does not include temporary physical prompts such as a
brief, light touch to encourage a response, physically
escorting a child safely from one area to another or away from
danger without force or physical coercion, or briefly holding
or hugging a student without force or physical coercion to calm
or comfort the student.
The Committee understands the importance of ``time out'' as
a behavior management technique that provides an opportunity
for students to calm and regain self-control, separated from
other students in an area from which the student is not
physically prevented from leaving. For example, asking a
student to step into the hallway for a short period of time, or
visit a quiet space in the classroom, would be considered
``time out.'' The Committee believes that, distinct from
seclusion, ``time out'' can be an effective and appropriate
approach for children experiencing challenging behaviors that
are not posing an imminent danger of physical injury. As such,
H.R. 4247 explicitly prevents the Secretary from prohibiting
the use of time out (as defined in the Public Health Service
Act), while limiting the use of isolated seclusion to crisis
situations. The Committee believes that use of seclusion,
including any involuntary confinement of a student alone in a
room or an area from which the student is physically prevented
from leaving, should be restricted to only those circumstances
in which it is absolutely necessary to stop imminent danger of
physical injury. The Committee also believes that rooms used
for seclusion should be safe, ventilated, lit, free of
dangerous fixtures, and meet all applicable building and fire
codes.
Consistent with the intent to establish similar
requirements and restrictions on the use of restraint and
seclusion across settings, the Committee believes that the
Secretary of Education should consider the regulations
implementing the Children's Health Act (42 CFR 483.352) when
issuing regulations concerning the definitions of seclusion and
time out.
State-approved crisis intervention training programs
In the GAO investigation, many cases of student injury or
death involved staff who had not been trained in crisis
prevention and the safe use of restraint and seclusion.\29\ The
Committee believes that staff who may be expected to respond to
behavioral crises using these interventions should be trained
and certified prior to subjecting students to restraint or
seclusion, similar to requirements in other settings.
Therefore, H.R. 4247 requires physical restraint or seclusion
be imposed only by school personnel trained and certified by a
state-approved crisis intervention training program. The
Committee also recognizes that there may be rare and clearly
unavoidable circumstances when trained staff may not be
immediately available and other staff may need to intervene.
For example, a teacher on a field trip might need to use
physical intervention to stop a young child from running into
traffic, or an administrator could need to step in and restrain
a student while breaking up a fight. The legislation
anticipates these situations and provides a narrow exception to
the training requirement for these emergencies.
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\29\Testimony of Gregory D. Kutz, Managing Director of Forensic
Audits and Special Investigations, Hearing, U.S. House of
Representatives, Committee on Education and Labor, Seclusions and
Restraints: Selected Cases of Death and Abuse at Public and Private
Schools and Treatment Centers (GAO-09-719T), May 19, 2009. http://
www.gao.gov/new.items/d09719t.pdf.
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H.R. 4247 requires states to approve crisis intervention
training programs that provide training and certification in
evidence-based techniques for preventing and safely
implementing restraint and seclusion in the schools. The
Committee anticipates that states would benefit from engaging a
variety of stakeholders, including individuals with
disabilities, parents, educators, private school officials, and
behavioral health experts, when considering appropriate crisis
intervention training programs for approval. It is the
Committee's expectation that such training should also
acknowledge the linguistic and cultural diversity of students
and staff. The bill also directs states and districts to ensure
that a sufficient number of school personnel are trained and
certified by state-approved crisis intervention training
programs to meet the needs of the particular population in each
school. The Committee expects that states will consult with
private school officials in a timely and meaningful manner to
determine the training needs of private schools, and to
establish processes for ensuring a sufficient number of private
school staff are trained inorder to meet student needs. The
Committee also believes that each state, district and school is unique
in its staffing needs and population of students, and anticipates that
the number of trained staff should reflect these differences. Public
and private schools that do not utilize restraint or seclusion should
not need to have any staff trained and certified by a state-approved
crisis intervention training program.
Crisis intervention planning for individual students
The Committee believes that the use of both physical
restraint and seclusion must be limited to emergency
circumstances to stop imminent danger of physical injury, and
only when there are no other effective alternatives. The
Committee is also concerned about allegations that parents are
being pressured to provide consent to the use of restraint and
seclusion as a precondition to an educational placement or
access to a program. Therefore, H.R. 4247 prohibits the
inclusion of these techniques as planned interventions to be
written into student education plans (including Individualized
Education Programs (IEPs) and Behavior Intervention Plans
(BIPs)) as routine or normal programming.
Under the Individuals with Disabilities Education Act, the
IEP is intended to provide a student with a free appropriate
public education and to identify services designed to enable
students with disabilities to make educational progress in both
academic achievement and functional performance.\30\ Such
services must be based on peer-reviewed research to the extent
practicable.\31\ The Committee believes that the use of
restraint and seclusion is not a program or service that meets
this standard, nor do these interventions constitute a
treatment providing educational benefit. The Committee intends
that student education plans and programs, including IEPs and
BIPs developed by IEP teams including parents, should include
positive behavioral supports and services to prevent the use of
restraint or seclusion. Additionally, the Committee believes
IEP teams, including parents, may agree upon restrictions
against the use of restraint and seclusion as crisis
interventions in an IEP or BIP, particularly when a student may
be at added risk of negative consequences due to disability or
physical or mental health conditions. The Committee also
believes IEP teams, including parents, may agree upon written
trauma-informed care plans, as appropriate, describing the
individual student needs related to crisis situations due to
the nature of the student's disability or prior trauma.
---------------------------------------------------------------------------
\30\20 U.S.C. 1414(d).
\31\34 CFR Sec. 300.320(a)(4).
---------------------------------------------------------------------------
The Committee also believes that for a very small number of
students with an extensive history of violent behavior that has
created an imminent danger of physical injury in school,
individual crisis planning with educators and parents is
appropriate. The Committee anticipates that the Secretary will
utilize the regulatory process to establish a distinction
between planned interventions and crisis interventions
consistent with the standards established under the bill, to
include the extremely limited circumstances under which
physical restraint or seclusion may be written as a crisis
intervention in an individual student plan, including IEPs and
BIPs, requiring informed consent from parents. The Committee
recognizes that such crisis planning should include, at a
minimum, a review of the educational and functional needs of
the student, an analysis of antecedents preceding any violent
behavior, and a functional behavior assessment conducted by a
qualified team of professionals, and that parent involvement
and informed consent is a critical component of crisis
planning.
The Committee expects that school personnel will rely on
district, school and classroom safety plans consistent with the
minimum standards and developed at the local level with
appropriate stakeholders that establish procedures to be used
when a student's behavior poses an imminent danger of physical
harm.
Procedures following restraint and seclusion
H.R. 4247 requires schools to establish procedures to be
followed after each incident involving the imposition of
restraint or seclusion, including written notification to
parents. The Committee believes it is critical that parents are
aware of each use of these interventions. Further, the
Committee encourages schools to consider additional procedures
to enhance parental involvement as well as assist in prevention
planning and the identification of antecedents leading up to
the crisis event, such as debriefing sessions with staff and
parents after restraint or seclusion incidents.
Grant authority
The Committee believes that some states, districts and
schools may need assistance in implementing efforts to prevent
and reduce restraint and seclusion in schools. H.R. 4247
provides for grants to support implementation of the standards,
professional development and training, and data reporting.
Additionally, the Committee believes expenditures related to
these efforts to be an allowable use of certain federal
education funds, such as professional development and training
resources.
H.R. 4247 requires local educational agencies receiving
subgrant funds to work with private school officials to ensure
that private school personnel can participate equitably in
activities funded by the grants. The Committee expects that
private schools will be able to negotiate with state and local
educational agencies to establish processes for participation
in training and other grant activities, to help ensure that
students in both public and private schools are protected from
the misuse of restraint and seclusion.
Positive Behavior Supports
The Committee believes the implementation of Positive
Behavior Supports (PBS) can assist in the prevention and
reduction of the use of harmful restraint and seclusion in
schools, and education resources should be invested in such
efforts. In the discretionary grant authority, H.R.4247
provides for such investment. The Committee expects that PBS should not
be used to diminish non-harmful behaviors related to a student's
disability that do not interfere with the learning environment. For
example, utilizing PBS to diminish the reoccurrence of self-injurious
behavior, an objectively harmful behavior which interferes with student
learning, is consistent with the purpose of this legislation, but
utilizing PBS to stop hand-flapping or other self-stimulatory behavior,
which is not harmful and stems from a child's disability, would be
inconsistent with the purpose of this legislation.
Reporting
The GAO investigation revealed the lack of comprehensive
data and information collection related to the use of restraint
and seclusion in the schools. H.R. 4247 requires states to
report on the number of restraint and seclusion incidents
annually. The Committee hopes that improved data collection and
analysis can contribute to the prevention, reduction and
elimination of restraint and seclusion in the schools. It is
the Committee's intent that public and private schools that do
not have any restraint or seclusion incidents in a given year
will not have to submit a report that year.
Enforcement
The Committee believes states and districts should be
primarily responsible for monitoring and enforcing the minimum
standards, so the bill gives states two years to provide the
Secretary with assurances that such mechanisms are in place.
For states that do not comply, H.R. 4247 provides the Secretary
authority to utilize remedies established under the General
Education Provisions Act or to require a State Educational
Agency to implement a corrective plan of action.
Additionally, Section 9 of H.R. 4247 references Protection
and Advocacy Systems. The Committee intends that Section 9 is
not an expansion of Protection and Advocacy authority, but a
reiteration of existing authorities under 42 U.S.C. Section
15041 et. seq., 42 U.S.C. Section 10801 et. seq., 29 U.S.C.
Section 794e et. seq., and 42 U.S.C. Section 300d-53 et. seq.
to monitor, investigate, and enforce the provisions of this
Act.
V. 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.
VI. EXPLANATION OF AMENDMENTS
The Amendment in the Nature of a Substitute is explained in
the body of this report.
VII. APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act, requires a description of the application
of this bill to the legislative branch. H.R. 4247 aims to
prevent and reduce the use of physical restraint and seclusion
in public and private schools and to promote a positive school
culture that ensures the safety of all students and personnel,
and has no direct impact on the legislative branch.
VIII. UNFUNDED MANDATE STATEMENT
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. H.R. 4247 contains no intergovernmental or private-
sector mandates as defined by the Unfunded Mandates Reform Act
(UMRA).
IX. EARMARK STATEMENT
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.
X. ROLL CALL
XI. STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE
COMMITTEE
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the body of this report.
XII. NEW BUDGET AUTHORITY AND CBO COST ESTIMATE
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following estimate for H.R. 4247 from the Director of the
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 12, 2010.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4247, the
Preventing Harmful Restraint and Seclusion in Schools Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Justin
Humphrey.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure.
H.R. 4247--Preventing Harmful Restraint and Seclusion in Schools Act
H.R. 4247 would authorize the appropriation of such sums as
may be necessary for fiscal years 2011 through 2015 to award
grants to states to assist them in establishing and
implementing policies and collecting and analyzing data related
to the physical restraint or seclusion of elementary and
secondary school students. Under the General Education
Provisions Act, these authorizations automatically would be
extended one year to 2016.
As shown in the following table, based on the funding
levels for similar programs at the U.S. Department of
Education, CBO estimates that implementing H.R. 4247 would
increase discretionary spending by about $250 million over the
2011-2015 period. For this estimate, CBO projects that
approximately $340 million would be appropriated over that
period and that outlays would follow the historical spending
pattern for similar programs. The costs of this legislation
fall within budget function 500 (education, training,
employment and social services). Enacting the bill would not
affect direct spending or revenues.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------
2011 2012 2013 2014 2015 2011-2015
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level........................... 66 67 67 68 69 337
Estimated Outlays....................................... 2 51 65 67 68 254
----------------------------------------------------------------------------------------------------------------
H.R. 4247 contains no intergovernmental or private sector
mandates, as defined in the Unfunded Mandates Reform Act. State
and local governments could benefit from grants provided by the
bill. Any costs to state and local governments that result from
participation in the grant programs would be incurred
voluntarily as conditions of federal assistance.
The CBO staff contact for this estimate is Justin Humphrey.
This estimate was approved by Holly Harvey, Deputy Assistant
Director, Budget Analysis Division.
XIII. STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
In accordance with clause 3(c) of rule XIII of the Rules of
the House of Representatives, the goal of H.R. 4247 is to
prevent and reduce the use of physical restraint and seclusion
in public and private schools and to promote a positive school
culture that ensures the safety of all students and personnel.
The Committee expects the Department of Education to comply
with H.R. 4247 and implement the changes to the law in
accordance with these stated goals.
XIV. CONSTITUTIONAL AUTHORITY STATEMENT
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress in the
Constitution to enact the law proposed by H.R. 4247. The
Committee believes that the amendments made by this bill are
within Congress' authority under Article I, section 8, clause 1
of the U.S. Constitution.
XV. COMMITTEE ESTIMATE
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 4247.
However, clause 3(d)(3)(B) of that rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
XVI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
Clause 3(e) of rule XIII of the Rules of the House of
Representatives requires a showing of changes in existing law
made by the bill, as reported, when amending or repealing an
existing statute or part thereof. Because the bill does not
amend or repeal an existing statute or part thereof, no
comparative print is required here.
XVII. COMMITTEE CORRESPONDENCE
None.
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).\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.
---------------------------------------------------------------------------
\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.\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.
---------------------------------------------------------------------------
\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.\3\ In addition, school districts may also have their
own guidelines governing the use of such practices in the
classroom.
---------------------------------------------------------------------------
\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.\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.
---------------------------------------------------------------------------
\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\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.
---------------------------------------------------------------------------
\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\6\ sent to the Committee,
the Council for American Private Education (CAPE) states that:
---------------------------------------------------------------------------
\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 wouldopen 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\7\ letter to the
Committee:
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\7\For a copy of the letter sent by the American Association of
School Administrators (AASA) see http://www.aasa.org/uploadedFiles/
Policy_and_Advocacy/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
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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.
John Kline, Senior Republican
Member.
Howard P. ``Buck'' McKeon.
Mark E. Souder.
Rob Bishop.
Bill Cassidy.
Duncan D. Hunter.
David P. Roe.
Glenn Thompson.