I 111th CONGRESS 1st Session H. R. 1378 IN THE HOUSE OF REPRESENTATIVES March 6, 2009 Mrs. Lowey (for herself, Mr. Grijalva, Mr. Sestak, Mr. Connolly of Virginia, Mr. Barrow, Mr. Hoyer, Ms. Woolsey, Mr. Van Hollen, Ms. Kaptur, Mr. Cummings, Mr. Chandler, Mr. McGovern, Mrs. Blackburn, Mr. Ruppersberger, Mr. Wexler, Ms. DeLauro, Mr. Kirk, Mr. Hinchey, Mr. Pitts, and Mr. Baca) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Education and Labor, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To direct the Secretary of Health and Human Services, in consultation with the Secretary of Education, to develop guidelines to be used on a voluntary basis to develop plans to manage the risk of food allergy and anaphylaxis in schools and early childhood education programs, to establish school-based food allergy management grants, and for other purposes.

1.

Short title

This Act may be cited as the Food Allergy and Anaphylaxis Management Act of 2009.

2.

Definitions

In this Act: (1)

Early childhood education program

The term early childhood education program means— (A)a Head Start program or an Early Head Start program carried out under the Head Start Act (42 U.S.C. 9831 et seq.); (B)a State licensed or regulated child care program or school; or (C)a State prekindergarten program that serves children from birth through kindergarten. (2)

ESEA definitions

The terms local educational agency, secondary school, elementary school, and parent have the meanings given the terms in section 9101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801). (3)

School

The term school includes public— (A)kindergartens; (B)elementary schools; and (C)secondary schools. (4)

Secretary

The term Secretary means the Secretary of Health and Human Services.

3.

Establishment of voluntary food allergy and anaphylaxis management guidelines

(a)

Establishment

(1)

In general

Not later than 1 year after the date of enactment of this Act, the Secretary, in consultation with the Secretary of Education, shall— (A)develop guidelines to be used on a voluntary basis to develop plans for individuals to manage the risk of food allergy and anaphylaxis in schools and early childhood education programs; and (B)make such guidelines available to local educational agencies, schools, early childhood education programs, and other interested entities and individuals to be implemented on a voluntary basis only. (2)

Applicability of FERPA

Each plan described in paragraph (1) that is developed for an individual shall be considered an education record for the purpose of the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. 1232g). (b)

Contents

The voluntary guidelines developed by the Secretary under subsection (a) shall address each of the following, and may be updated as the Secretary determines necessary: (1)Parental obligation to provide the school or early childhood education program, prior to the start of every school year, with— (A)documentation from their child’s physician or nurse— (i)supporting a diagnosis of food allergy, and any risk of anaphylaxis, if applicable; (ii)identifying any food to which the child is allergic; (iii)describing, if appropriate, any prior history of anaphylaxis; (iv)listing any medication prescribed for the child for the treatment of anaphylaxis; (v)detailing emergency treatment procedures in the event of a reaction; (vi)listing the signs and symptoms of a reaction; and (vii)assessing the child’s readiness for self-administration of prescription medication; and (B)a list of substitute meals that may be offered to the child by school or early childhood education program food service personnel. (2)The creation and maintenance of an individual plan for food allergy management, in consultation with the parent, tailored to the needs of each child with a documented risk for anaphylaxis, including any procedures for the self-administration of medication by such children in instances where— (A)the children are capable of self-administering medication; and (B)such administration is not prohibited by State law. (3)Communication strategies between individual schools or early childhood education programs and providers of emergency medical services, including appropriate instructions for emergency medical response. (4)Strategies to reduce the risk of exposure to anaphylactic causative agents in classrooms and common school or early childhood education program areas such as cafeterias. (5)The dissemination of general information on life-threatening food allergies to school or early childhood education program staff, parents, and children. (6)Food allergy management training of school or early childhood education program personnel who regularly come into contact with children with life-threatening food allergies. (7)The authorization and training of school or early childhood education program personnel to administer epinephrine when the nurse is not immediately available. (8)The timely accessibility of epinephrine by school or early childhood education program personnel when the nurse is not immediately available. (9)The creation of a plan contained in each individual plan for food allergy management that addresses the appropriate response to an incident of anaphylaxis of a child while such child is engaged in extracurricular programs of a school or early childhood education program, such as non-academic outings and field trips, before- and after-school programs or before- and after-early child education program programs, and school-sponsored or early childhood education program-sponsored programs held on weekends. (10)Maintenance of information for each administration of epinephrine to a child at risk for anaphylaxis and prompt notification to parents. (11)Other elements the Secretary determines necessary for the management of food allergies and anaphylaxis in schools and early childhood education programs. (c)

Relation to State law

Nothing in this Act or the guidelines developed by the Secretary under subsection (a) shall be construed to preempt State law, including any State law regarding whether students at risk for anaphylaxis may self-administer medication.

4.

School-based food allergy management grants

(a)

In general

The Secretary may award grants to local educational agencies to assist such agencies with implementing voluntary food allergy and anaphylaxis management guidelines described in section 3. (b)

Application

(1)

In general

To be eligible to receive a grant under this section, a local educational agency shall submit an application to the Secretary at such time, in such manner, and including such information as the Secretary may reasonably require. (2)

Contents

Each application submitted under paragraph (1) shall include— (A)an assurance that the local educational agency has developed plans in accordance with the food allergy and anaphylaxis management guidelines described in section 3; (B)a description of the activities to be funded by the grant in carrying out the food allergy and anaphylaxis management guidelines, including— (i)how the guidelines will be carried out at individual schools served by the local educational agency; (ii)how the local educational agency will inform parents and students of the guidelines in place; (iii)how school nurses, teachers, administrators, and other school-based staff will be made aware of, and given training on, when applicable, the guidelines in place; and (iv)any other activities that the Secretary determines appropriate; (C)an itemization of how grant funds received under this section will be expended; (D)a description of how adoption of the guidelines and implementation of grant activities will be monitored; and (E)an agreement by the local educational agency to report information required by the Secretary to conduct evaluations under this section. (c)

Use of funds

Each local educational agency that receives a grant under this section may use the grant funds for the following: (1)Purchase of materials and supplies, including limited medical supplies such as epinephrine and disposable wet wipes, to support carrying out the food allergy and anaphylaxis management guidelines described in section 3. (2)In partnership with local health departments, school nurse, teacher, and personnel training for food allergy management. (3)Programs that educate students as to the presence of, and policies and procedures in place related to, food allergies and anaphylactic shock. (4)Outreach to parents. (5)Any other activities consistent with the guidelines described in section 3. (d)

Duration of awards

The Secretary may award grants under this section for a period of not more than 2 years. In the event the Secretary conducts a program evaluation under this section, funding in the second year of the grant, where applicable, shall be contingent on a successful program evaluation by the Secretary after the first year. (e)

Limitation on grant funding

The Secretary may not provide grant funding to a local educational agency under this section after such local educational agency has received 2 years of grant funding under this section. (f)

Maximum amount of annual awards

A grant awarded under this section may not be made in an amount that is more than $50,000 annually. (g)

Priority

In awarding grants under this section, the Secretary shall give priority to local educational agencies with the highest percentages of children who are counted under section 1124(c) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6333(c)). (h)

Matching funds

(1)

In general

The Secretary may not award a grant under this section unless the local educational agency agrees that, with respect to the costs to be incurred by such local educational agency in carrying out the grant activities, the local educational agency shall make available (directly or through donations from public or private entities) non-Federal funds toward such costs in an amount equal to not less than 25 percent of the amount of the grant. (2)

Determination of amount of non-Federal contribution

Non-Federal funds required under paragraph (1) may be cash or in-kind, including plant, equipment, or services. Amounts provided by the Federal Government, and any portion of any service subsidized by the Federal Government, may not be included in determining the amount of such non-Federal funds. (i)

Administrative funds

A local educational agency that receives a grant under this section may use not more than 2 percent of the grant amount for administrative costs related to carrying out this section. (j)

Progress and evaluations

At the completion of the grant period referred to in subsection (d), a local educational agency shall provide the Secretary with information on how grant funds were spent and the status of implementation of the food allergy and anaphylaxis management guidelines described in section 3. (k)

Supplement, not supplant

Grant funds received under this section shall be used to supplement, and not supplant, non-Federal funds and any other Federal funds available to carry out the activities described in this section. (l)

Authorization of appropriations

There is authorized to be appropriated to carry out this section $30,000,000 for fiscal year 2010 and such sums as may be necessary for each of the 4 succeeding fiscal years.

5.

Voluntary nature of guidelines

(a)

In general

The food allergy and anaphylaxis management guidelines developed by the Secretary under section 3 are voluntary. Nothing in this Act or the guidelines developed by the Secretary under section 3 shall be construed to require a local educational agency to implement such guidelines. (b)

Exception

Notwithstanding subsection (a), the Secretary may enforce an agreement by a local educational agency to implement food allergy and anaphylaxis management guidelines as a condition of the receipt of a grant under section 4.