[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 2860 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                S. 2860

     To protect students from inappropriate seclusion and physical 
                   restraint, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            December 9, 2009

   Mr. Dodd introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
     To protect students from inappropriate seclusion and physical 
                   restraint, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

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) Seclusion and physical restraint have resulted in 
        physical injury, psychological trauma, and death to children in 
        public and private schools. National research shows children 
        have been subjected to inappropriate seclusion and physical 
        restraint in schools as a means of discipline, to force 
        compliance, or as a substitute for appropriate educational 
        support.
            (2) Despite the widely recognized risks of seclusion and 
        physical restraint, a substantial disparity exists between 
        States and localities with regard to the protection and 
        oversight of the rights of children to a safe learning 
        environment.
            (3) 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.
            (4) Research confirms that--
                    (A) seclusion and physical restraint are not 
                therapeutic; and
                    (B) these practices are not effective means to calm 
                or teach children and may have an opposite effect while 
                simultaneously decreasing a child's ability to learn.
            (5) Children are subjected to seclusion and physical 
        restraint at higher rates than adults, and are at greater risk 
        of injury. Physical restraint that restricts air flow to the 
        lungs, as well as seclusion in the absence of continuous face-
        to-face monitoring, have resulted in the deaths of children in 
        schools.
            (6) 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 for 
        purposes of discipline or convenience.
            (7) Safe, effective, evidence-based strategies are 
        available to support children who display challenging behaviors 
        in school settings. Staff training focused on the dangers of 
        seclusion and physical restraint, as well as training in 
        evidence-based positive behavioral interventions and supports, 
        de-escalation techniques, and seclusion and physical restraint 
        prevention, can reduce injury, trauma, and death.
            (8) 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.
            (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.
            (10) Perspectives of relevant community and advocacy 
        organizations, including those run by individuals with 
        disabilities, are important when developing and implementing 
        strategies, policies, and procedures to prevent or reduce 
        seclusion and physical restraint in schools.

SEC. 3. PURPOSES.

    The purposes of this Act are to--
            (1) prevent and reduce the use of seclusion and physical 
        restraint;
            (2) ensure the safety of all students and 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 for 
                purposes of discipline or convenience;
            (4) ensure that seclusion and physical restraint 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 and school personnel safe, including 
                students with the most complex and intensive behavioral 
                needs;
                    (B) providing school personnel with the necessary 
                tools, training, and support to ensure the safety of 
                all students and promoting a positive school culture 
                and climate;
                    (C) collecting and analyzing data on seclusion and 
                physical restraint in schools as a means to reduce such 
                incidents; and
                    (D) identifying and implementing effective 
                evidence-based models to prevent and reduce seclusion 
                and physical restraint in schools.

SEC. 4. DEFINITIONS.

    In this Act:
            (1) ESEA definitions.--The terms ``educational service 
        agency'', ``elementary school'', ``local educational agency'', 
        ``parent'', ``secondary school'', and ``State'' have the 
        meanings given such terms in section 9101 of the Elementary and 
        Secondary Education Act of 1965 (20 U.S.C. 7801).
            (2) Public health service act definitions.--The terms 
        ``mechanical restraint'', ``physical escort'', ``physical 
        restraint'', ``seclusion'', and ``time out'' have the meanings 
        given such terms in section 595(d) of the Public Health Service 
        Act (42 U.S.C. 290jj(d)), except that the meanings of such 
        terms shall be applied by substituting ``student'' or 
        ``student's'' for ``resident'' or ``resident's'', respectively.
            (3) Applicable program.--The term ``applicable program'' 
        has the meaning given the term in section 400(c) of the General 
        Education Provisions Act (20 U.S.C. 1221(c)).
            (4) 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 standard 
                treatment of the student's medical or psychiatric 
                condition; and
                    (B) administered for that purpose.
            (5) 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.
            (6) 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).
            (7) School.--The term ``school'' means an entity that--
                    (A) is--
                            (i) a public or private day or residential 
                        elementary school or secondary school; or
                            (ii) an 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
                    (B) receives, or serves students who receive, 
                support in any form from any program supported in whole 
                or in part, directly or indirectly, with funds 
                appropriated to the Department of Education.
            (8) School personnel.--The term ``school personnel'' means 
        school personnel and school resource officers, as such terms 
        are defined in section 4151 of the Elementary and Secondary 
        Education Act of 1965 (20 U.S.C. 7161).
            (9) Secretary.--The term ``Secretary'' means the Secretary 
        of Education.
            (10) State-approved training program.--The term ``State-
        approved training program'' means a training program approved 
        by a State that, at a minimum, provides--
                    (A) evidence-based techniques shown to be effective 
                in the prevention, and safe use, of seclusion and 
                physical restraint;
                    (B) evidence-based skills training that is related 
                to positive behavior supports, conflict prevention, de-
                escalation, and conflict management;
                    (C) first aid and cardiopulmonary resuscitation; 
                and
                    (D) certification for school personnel in the 
                techniques and skills described in subparagraphs (A) 
                through (C), which shall be required to be renewed on a 
                periodic basis.
            (11) State educational agency.--The term ``State 
        educational agency'' means a State educational agency, as 
        defined in section 9101 of the Elementary and Secondary 
        Education Act of 1965 (20 U.S.C. 7801), that receives support 
        in any form from an applicable program.
            (12) Student.--The term ``student'' means a student--
                    (A) who is enrolled in a school; and
                    (B) in the case of a student enrolled in a private 
                school, who receives support in any form from any 
                applicable program or any program supported in whole, 
                in part, directly, or indirectly with funds 
                appropriated to the Department of Education or under 
                the Head Start Act (42 U.S.C. 9831 et seq.).

SEC. 5. MINIMUM STANDARDS; RULE OF CONSTRUCTION.

    (a) Minimum Standards.--Not later than 180 days after the date of 
enactment of this Act, the Secretary shall prescribe regulations 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 for purposes of discipline or 
convenience or in a manner otherwise inconsistent with this Act. Such 
regulations shall, at a minimum, include regulations for the following 
standards:
            (1) School personnel shall be prohibited from imposing on 
        any student the following:
                    (A) Mechanical restraint.
                    (B) Chemical restraint.
                    (C) Physical restraint that restricts air flow to 
                the lungs.
                    (D) Aversive behavioral intervention that 
                compromises 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; and
                    (B) less restrictive interventions would be 
                ineffective in stopping such imminent danger of 
                physical injury.
            (3) In the event physical restraint or seclusion is imposed 
        upon a student, such physical restraint or seclusion shall--
                    (A) end upon the cessation of the conditions 
                described in paragraph (2);
                    (B) be 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; and
                    (C) be imposed by--
                            (i) school personnel trained and certified 
                        by a State-approved training program that is 
                        approved by the Secretary; 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.
            (4) Each State and local educational agency shall ensure 
        that a sufficient number of school personnel are trained and 
        certified by a State-approved training program to meet the 
        needs of the specific student population in each school in the 
        State or served by the local educational agency, respectively.
            (5) 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 614(d) 
        of the Individuals with Disabilities Education Act (20 U.S.C. 
        1414(d))).
            (6) Within 72 hours after the imposition of physical 
        restraint or seclusion upon a student, all school personnel 
        involved in the physical restraint or seclusion and appropriate 
        supervisory and administrative staff shall participate in a 
        debriefing session, which shall include--
                    (A) documentation of antecedents to the physical 
                restraint or seclusion; and
                    (B) prevention planning.
            (7) Each school 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) a documented, reasonable attempt to 
                        provide immediate verbal or electronic 
                        communication on the same day as each such 
                        incident;
                            (ii) within 24 hours of each such incident, 
                        written notification; and
                            (iii) advance notice of the debriefing 
                        session described in paragraph (6) that will be 
                        held regarding such incident and an opportunity 
                        to attend the debriefing session; and
                    (B) in a case where serious bodily injury (as 
                defined in section 1365(h) of title 18, United States 
                Code) or death of a student of the school occurs from 
                the use of seclusion or physical restraint, procedures 
                to notify, in writing, the State protection and 
                advocacy system within 24 hours after such incident 
                occurs.
    (b) Rule of Construction.--Nothing in this section shall be 
construed to authorize the Secretary to promulgate regulations 
prohibiting the use of--
            (1) time out; and
            (2) devices implemented by a 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 a mechanical support; 
                or
                    (C) vehicle safety restraints when used as intended 
                during the transport of a student in a moving vehicle.

SEC. 6. STATE PLAN AND DATA COLLECTION REQUIREMENTS AND ENFORCEMENT.

    (a) State Plan.--Not later than 2 years after the date of enactment 
of this Act, 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 required by the regulations 
                prescribed by the Secretary 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 
        described in paragraph (1)(A); and
            (3) a description of the plans to ensure 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)(3)(C)(i); and
                                    (II) the demographic 
                                characteristics of all students upon 
                                whom physical restraint or seclusion 
                                was imposed, including--
                                            (aa) the categories 
                                        described 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 paragraph (20) 
                                        (except for subparagraph (A) of 
                                        section 7 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)(2), the 
                Secretary shall--
                            (i) withhold from the State educational 
                        agency, in whole or in part, further payments 
                        under an applicable program in accordance with 
                        section 455 of the General Education Provisions 
                        Act (20 U.S.C. 1234d);
                            (ii) require the State educational agency 
                        to submit and implement, not later than 1 year 
                        after the State's failure to comply, a 
                        corrective plan of action, which may include 
                        redirection of funds received under an 
                        applicable program after the date of enactment 
                        of this Act; 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 that 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 
State educational agencies in--
            (1) establishing, implementing, and enforcing the policies 
        and procedures to meet the minimum standards required by 
        regulations prescribed by the Secretary pursuant to section 
        5(a); and
            (2) 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 carry out the activities described 
        in subsections (e) and (f), as required under the grant, by 
        awarding subgrants, on a competitive basis, to local 
        educational agencies.
            (2) Application.--A local educational agency desiring to 
        receive a subgrant under paragraph (1) 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) Required Activities.--A State educational agency receiving a 
grant under this section shall use such grant funds to carry out all of 
the following:
            (1) Researching, developing, implementing, and evaluating 
        strategies, policies, and procedures to reduce or eliminate 
        seclusion and physical restraint in schools, consistent with 
        the minimum standards required by regulations prescribed 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.
    (f) Authorized Activities.--A State educational agency receiving a 
grant under this section may use such grant 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 decisionmaking 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.
    (g) Evaluation and Report.--Each State educational agency receiving 
a grant under this section shall, at the end of the grant period--
            (1) evaluate the State's progress toward the reduction and 
        elimination of seclusion and physical restraint in the schools 
        located in the State, consistent with the minimum standards 
        required by regulations prescribed by the Secretary pursuant to 
        section 5(a); and
            (2) submit to the Secretary a report on such progress.

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) collecting and analyzing data related to seclusion, 
        physical restraint, and aversive behavioral interventions in 
        schools;
            (2) analyzing the effectiveness of Federal, State, and 
        local efforts to reduce the number of seclusion and physical 
        restraint 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 personnel training models with demonstrated 
        success in reducing the number of seclusion and physical 
        restraint 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 of Education, 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 of Education 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.

    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 the families of students under 
Federal or State law.

SEC. 12. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated to carry out this Act such 
sums as may be necessary for fiscal year 2011 and each of the 4 
succeeding fiscal years.
                                 <all>