[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 2020 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                S. 2020

  To protect all school children against harmful and life-threatening 
                   seclusion and restraint practices.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 16, 2011

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

_______________________________________________________________________

                                 A BILL


 
  To protect all school children against harmful and life-threatening 
                   seclusion and restraint practices.

    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 ``Keeping All Students Safe Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Applicable program.--The term ``applicable program'' 
        has the meaning given the term in section 400(c)(1) of the 
        General Education Provisions Act (20 U.S.C. 1221(c)(1)).
            (2) 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, or other 
                qualified health professional acting under the scope of 
                the professional's authority under State law, for the 
                standard treatment of a student's medical or 
                psychiatric condition; and
                    (B) administered as prescribed by the licensed 
                physician or other qualified health professional acting 
                under the scope of the professional's authority under 
                State law.
            (3) ESEA definitions.--The terms--
                    (A) ``Department'', ``educational service agency'', 
                ``elementary school'', ``local educational agency'', 
                ``parent'', ``secondary school'', ``State'', and 
                ``State educational agency'' have the meanings given 
                such terms in section 9101 of the Elementary and 
                Secondary Education Act of 1965 (20 U.S.C. 7801); and
                    (B) ``school resource officer'' and ``school 
                personnel'' have the meanings given such terms in 
                section 4151 of such Act (20 U.S.C. 7161).
            (4) Federal financial assistance.--The term ``Federal 
        financial assistance'' means any grant, loan, contract (other 
        than a procurement contract or a contract of insurance or 
        guaranty), or any other arrangement by which the Department 
        provides or otherwise makes available assistance in the form 
        of--
                    (A) funds;
                    (B) services of Federal personnel; or
                    (C) real and personal property or any interest in 
                or use of such property, including--
                            (i) transfers or leases of such property 
                        for less than fair market value or for reduced 
                        consideration; and
                            (ii) proceeds from a subsequent transfer or 
                        lease of such property if the Federal share of 
                        its fair market value is not returned to the 
                        Federal Government.
            (5) Free appropriate public education.--For those students 
        eligible for special education and related services under the 
        Individuals with Disabilities Education Act (20 U.S.C. 1400 et 
        seq.), the term ``free appropriate public education'' has the 
        meaning given the term in section 602 of such Act (20 U.S.C. 
        1401).
            (6) Mechanical restraint.--The term ``mechanical 
        restraint''--
                    (A) 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''; and
                    (B) does not mean devices used by trained school 
                personnel, or used by a student, for the specific and 
                approved therapeutic or safety purposes for which such 
                devices were designed and, if applicable, prescribed, 
                including--
                            (i) restraints for medical immobilization;
                            (ii) adaptive devices or mechanical 
                        supports used to allow greater freedom of 
                        mobility than would be possible without the use 
                        of such devices or mechanical supports; or
                            (iii) vehicle safety restraints when used 
                        as intended during the transport of a student 
                        in a moving vehicle.
            (7) Physical escort.--The term ``physical escort'' means 
        the temporary touching or holding of the hand, wrist, arm, 
        shoulder, waist, hip, or back for the purpose of inducing a 
        student to move to a safe location.
            (8) Physical restraint.--The term ``physical restraint'' 
        means a personal restriction that immobilizes or reduces the 
        ability of an individual to move the individual's arms, legs, 
        body, or head freely. Such term does not include a physical 
        escort, mechanical restraint, or chemical restraint.
            (9) Positive behavioral interventions and supports.--The 
        term ``positive behavioral interventions and supports''--
                    (A) means a school-wide systematic approach to 
                embed evidence-based practices and data-driven 
                decisionmaking to improve school climate and culture 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; 
                and
                    (B) encompasses a range of systemic and 
                individualized positive strategies to reinforce desired 
                behaviors, diminish reoccurrence of challenging 
                behaviors, and teach appropriate behaviors to students.
            (10) Protection and advocacy system.--The term ``protection 
        and advocacy system'' means a protection and advocacy system 
        established under subtitle C of title I of the Developmental 
        Disabilities Assistance and Bill of Rights Act of 2000 (42 
        U.S.C. 15041 et seq.).
            (11) Seclusion.--The term ``seclusion'' means the isolation 
        of a student in a room, enclosure, or space that is--
                    (A) locked; or
                    (B) unlocked and the student is prevented from 
                leaving.
            (12) Secretary.--The term ``Secretary'' means the Secretary 
        of Education, and, where appropriate, the Secretary of the 
        Interior and the Secretary of Defense.
            (13) Serious bodily injury.--The term ``serious bodily 
        injury'' has the meaning given the term in section 1365(h) of 
        title 18, United States Code.
            (14) State-approved crisis intervention training program.--
        The term ``State-approved crisis intervention training 
        program'' means a training program approved by a State that, at 
        a minimum, provides training in evidence-based practices shown 
        to be effective--
                    (A) in the prevention of the use of physical 
                restraint;
                    (B) in keeping both school personnel and students 
                safe in imposing physical restraint in a manner 
                consistent with this Act;
                    (C) in the use of data-based decisionmaking and 
                evidence-based positive behavioral interventions and 
                supports, safe physical escort, conflict prevention, 
                behavioral antecedents, functional behavioral 
                assessments, de-escalation of challenging behaviors, 
                and conflict management;
                    (D) in first aid, including the signs of medical 
                distress, and cardiopulmonary resuscitation; and
                    (E) certification for school personnel in the 
                practices and skills described in subparagraphs (A) 
                through (D), which shall be required to be renewed on a 
                periodic basis.
            (15) Student.--The term ``student'' means a student who--
                    (A) is enrolled in a public school;
                    (B) is enrolled in a private school and is 
                receiving a free appropriate public education at the 
                school under subparagraph (B) or (C) of section 
                612(a)(10) of the Individuals with Disabilities 
                Education Act (20 U.S.C. 1412(a)(10)(B), (C));
                    (C) is enrolled in a Head Start or Early Head Start 
                program supported under the Head Start Act (42 U.S.C. 
                9831); or
                    (D) receives services under section 619 or part C 
                of the Individuals with Disabilities Education Act (20 
                U.S.C. 1419, 1431 et seq.).

SEC. 3. PURPOSE.

    The purposes of this Act are--
            (1) to promote the development of effective intervention 
        and prevention practices that do not use restraints and 
        seclusion;
            (2) to protect all students from physical or mental abuse, 
        aversive behavioral interventions that compromise health and 
        safety, and any restraint imposed for purposes of coercion, 
        discipline or convenience, or as a substitute for appropriate 
        educational or positive behavioral interventions and supports;
            (3) to ensure that staff are safe from the harm that can 
        occur from inexpertly using restraints; and
            (4) to ensure the safety of all students and school 
        personnel and promote positive school culture and climate.

SEC. 4. MINIMUM STANDARDS; RULE OF CONSTRUCTION.

    Each State and local educational agency receiving Federal financial 
assistance shall have in place policies that are consistent with the 
following:
            (1) Prohibition of certain action.--School personnel, 
        contractors, and resource officers are prohibited from imposing 
        on any student--
                    (A) seclusion;
                    (B) mechanical restraint;
                    (C) chemical restraint;
                    (D) aversive behavioral interventions that 
                compromise health and safety;
                    (E) physical restraint that is life-threatening, 
                including physical restraint that restricts breathing; 
                and
                    (F) physical restraint if contraindicated based on 
                the student's disability, health care needs, or medical 
                or psychiatric condition, as documented in a health 
                care directive or medical management plan, a behavior 
                intervention plan, an individualized education program 
                or an individualized family service plan (as defined in 
                section 602 of the Individuals with Disabilities 
                Education Act (20 U.S.C. 1401)), or plan developed 
                pursuant to section 504 of the Rehabilitation Act of 
                1973 (29 U.S.C. 794), or other relevant record made 
                available to the State or local educational agency.
            (2) Physical restraint.--
                    (A) In general.--Physical restraint may only be 
                implemented if--
                            (i) the student's behavior poses an 
                        immediate danger of serious bodily injury to 
                        self or others;
                            (ii) the physical restraint does not 
                        interfere with the student's ability to 
                        communicate in the student's primary language 
                        or mode of communication; and
                            (iii) less restrictive interventions have 
                        been ineffective in stopping the immediate 
                        danger of serious bodily injury to the student 
                        or others, except in a case of a rare and 
                        clearly unavoidable emergency circumstance 
                        posing immediate danger of serious bodily 
                        injury.
                    (B) Least amount of force necessary.--When 
                implementing a physical restraint, staff shall use only 
                the amount of force necessary to protect the student or 
                others from the threatened injury.
                    (C) End of physical restraint.--The use of physical 
                restraint shall end when--
                            (i) a medical condition occurs putting the 
                        student at risk of harm;
                            (ii) the student's behavior no longer poses 
                        an immediate danger of serious bodily injury to 
                        the student or others; or
                            (iii) less restrictive interventions would 
                        be effective in stopping such immediate danger 
                        of serious bodily injury.
                    (D) Qualifications of individuals engaging in 
                physical restraint.--School personnel imposing physical 
                restraint in accordance with this subsection shall--
                            (i) be trained and certified by a State-
                        approved crisis intervention training program, 
                        except in the case of rare and clearly 
                        unavoidable emergency circumstances when school 
                        personnel trained and certified are not 
                        immediately available due to the unforeseeable 
                        nature of the emergency circumstance;
                            (ii) engage in continuous face-to-face 
                        monitoring of the student; and
                            (iii) be trained in State and school 
                        policies and procedures regarding restraint and 
                        seclusion.
                    (E) Prohibition on use of physical restraint as 
                planned intervention.--The use of physical restraints 
                as a planned intervention shall not be written into a 
                student's education plan, individual safety plan, plan 
                developed pursuant to section 504 of the Rehabilitation 
                Act of 1973 (29 U.S.C. 794), individualized education 
                program or individualized family service plan (as 
                defined in section 602 of the Individuals with 
                Disabilities Education Act (20 U.S.C. 1401)), or any 
                other planning document for an individual student.
            (3) Other policies.--
                    (A) In general.--The State or local educational 
                agency, and each school and educational program served 
                by the State or local educational agency shall--
                            (i) establish policies and procedures that 
                        ensure school personnel and parents, including 
                        private school personnel and parents, are aware 
                        of the State, local educational agency, and 
                        school's policies and procedures regarding 
                        seclusion and restraint;
                            (ii) establish policies and procedures to 
                        keep all students, including students with the 
                        most complex and intensive behavioral needs, 
                        and school personnel safe;
                            (iii) establish policies and procedures for 
                        planning for the appropriate use of restraint 
                        in crisis situations in accordance with this 
                        Act by a team of professionals trained in 
                        accordance with a State-approved crisis 
                        intervention training program; and
                            (iv) establish policies and procedures to 
                        be followed after each incident involving the 
                        imposition of physical restraint upon a 
                        student, including--
                                    (I) procedures to provide to the 
                                parent of the student, with respect to 
                                each such incident--
                                            (aa) a verbal or electronic 
                                        communication on the same day 
                                        as each such incident; and
                                            (bb) within 24 hours of 
                                        each such incident, written 
                                        notification; and
                                    (II) after the imposition of 
                                physical restraint upon a student, 
                                procedures to ensure that all school 
                                personnel in the proximity of the 
                                student immediately before and during 
                                the time of the restraint, the parent, 
                                the student, appropriate supervisory 
                                and administrative staff, and 
                                appropriate IEP team members, 
                                participate in a debriefing session.
                    (B) Debriefing session.--
                            (i) In general.--The debriefing session 
                        described in subparagraph (A)(iv)(II) shall 
                        occur as soon as practicable, but not later 
                        than 5 school days following the imposition of 
                        physical restraint unless it is delayed by 
                        written mutual agreement of the parent and 
                        school. Parents shall retain their full legal 
                        rights for children under the age of majority 
                        concerning participation in the debriefing or 
                        other matters.
                            (ii) Content of session.--The debriefing 
                        session described in subparagraph (A)(iv)(II) 
                        shall include--
                                    (I) identification of antecedents 
                                to the physical restraint;
                                    (II) consideration of relevant 
                                information in the student's records, 
                                and such information from teachers, 
                                other professionals, the parent, and 
                                student;
                                    (III) planning to prevent and 
                                reduce reoccurrence of the use of 
                                physical restraint, including 
                                consideration of the results of any 
                                functional behavioral assessments, 
                                whether positive behavior plans were 
                                implemented with fidelity, 
                                recommendations of appropriate positive 
                                behavioral interventions and supports 
                                to assist personnel responsible for the 
                                student's educational plan, the 
                                individualized education program for 
                                the student, if applicable, and plans 
                                providing for reasonable accommodations 
                                under section 504 of the Rehabilitation 
                                Act of 1973 (29 U.S.C. 794);
                                    (IV) a plan to have a functional 
                                behavioral assessment conducted, 
                                reviewed, or revised by qualified 
                                professionals, the parent, and the 
                                student; and
                                    (V) for any student not identified 
                                as eligible to receive accommodations 
                                under section 504 of the Rehabilitation 
                                Act of 1973 (29 U.S.C. 794) or services 
                                under the Individuals with Disabilities 
                                Education Act (20 U.S.C. 1400 et seq.), 
                                evidence of such a referral or 
                                documentation of the basis for 
                                declining to refer the student.
                            (iii) Communication by the student.--When a 
                        student attends a debriefing session described 
                        in subparagraph (A)(iv)(II), information 
                        communicated by the student may not be used 
                        against the student in any disciplinary, 
                        criminal, or civil investigation or proceeding.
            (4) Notification in writing on death or bodily injury.--In 
        a case in which serious bodily injury or death of a student 
        occurs in conjunction with the use of physical restraint or any 
        intervention used to control behavior, there are procedures to 
        notify, in writing, within 24 hours after such injury or death 
        occurs--
                    (A) the State educational agency and local 
                educational agency;
                    (B) local law enforcement; and
                    (C) a protection and advocacy system, in the case 
                of a student who is eligible for services from the 
                protection and advocacy system.
            (5) Prohibition against retaliation.--The State or local 
        educational agency, each school and educational program served 
        by the State or local educational agency, and school personnel 
        of such school or program shall not retaliate against any 
        person for having--
                    (A) reported a violation of this section or Federal 
                or State regulations or policies promulgated to carry 
                out this section; or
                    (B) provided information regarding a violation of 
                this section or Federal or State regulations or 
                policies promulgated to carry out this section.

SEC. 5. INTERACTION.

    (a) Rule of Construction.--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 (including regulations) or to restrict or 
limit stronger restrictions on the use of restraint, seclusion, or 
aversives in Federal or State law (including regulations) or in State 
policies.
    (b) Denial of a Free Appropriate Public Education.--Failure to meet 
the minimum standards of this Act as applied to an individual child 
eligible for accommodations developed pursuant to section 504 of the 
Rehabilitation Act of 1973 (29 U.S.C. 794) or for education or related 
services under the Individuals with Disabilities Education Act (20 
U.S.C. 1400 et seq.) shall constitute a denial of a free appropriate 
public education.

SEC. 6. REPORT REQUIREMENTS.

    (a) In General.--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 following 
information:
            (1) The total number of incidents in which physical 
        restraint was imposed upon a student in the preceding full 
        academic year.
            (2) The information described in paragraph (1) shall be 
        disaggregated--
                    (A) by the total number of incidents in which 
                physical restraint was imposed upon a student--
                            (i) that resulted in injury to students or 
                        school personnel, or both;
                            (ii) that resulted in death; and
                            (iii) in which the school personnel 
                        imposing physical restraint were not trained 
                        and certified as described in section 
                        4(2)(D)(i); and
                    (B) by the demographic characteristics of all 
                students upon whom physical restraint was imposed, 
                including--
                            (i) the subcategories 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));
                            (ii) age; and
                            (iii) disability category.
    (b) Unduplicated Count; Exception.--The disaggregation required 
under subsection (a) shall--
            (1) be carried out in a manner to ensure an unduplicated 
        count of the total number of incidents in the preceding full 
        academic year in which physical restraint was imposed upon a 
        student; and
            (2) not be required in a case in which the number of 
        students in a category would reveal personally identifiable 
        information about an individual student.

SEC. 7. GRANT AUTHORITY.

    (a) In General.--From the amount appropriated under section 9, the 
Secretary may award grants to State educational agencies to assist in--
            (1) establishing, implementing, and enforcing the policies 
        and procedures to meet the minimum standards described in this 
        Act;
            (2) improving State and local capacity to collect and 
        analyze data related to physical restraint; and
            (3) improving school climate and culture by implementing 
        school-wide positive behavioral interventions and supports.
    (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.
    (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 State educational agency receiving grant 
        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 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 
        evidence-based strategies, policies, and procedures to reduce 
        and prevent physical restraint in schools, consistent with the 
        minimum standards described in this Act.
            (2) Providing professional development, training, and 
        certification for school personnel to meet such standards.
    (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 1 or more 
of the following:
            (1) Developing and implementing a high-quality professional 
        development and training program to implement evidence-based 
        systematic approaches to school-wide positive behavioral 
        interventions and 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 
        behavioral interventions and supports, including technical 
        assistance for data-driven decisionmaking related to positive 
        behavioral interventions and supports in the classroom.
            (3) Researching, evaluating, and disseminating high-quality 
        evidence-based programs and activities that implement school-
        wide positive behavioral interventions and supports with 
        fidelity.
            (4) Supporting other local positive behavioral 
        interventions and supports 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 in the schools located in the 
        State, consistent with the minimum standards; and
            (2) submit to the Secretary a report on such progress.

SEC. 8. ENFORCEMENT.

    (a) Use of Remedies.--If a State educational agency fails to comply 
with the requirements under this Act, the Secretary shall--
            (1) withhold, 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);
            (2) require a State or local 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;
            (3) issue a complaint to compel compliance of the State or 
        local 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); or
            (4) refer the State to the Department of Justice or 
        Department of Education Office of Civil Rights for an 
        investigation.
    (b) Cessation of Withholding of Funds.--Whenever the Secretary 
determines (whether by certification or other appropriate evidence) 
that a State or local educational agency that is subject to the 
withholding of payments under subsection (a)(1) 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 subsection.

SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such sums as may be 
necessary to carry out this Act for fiscal year 2012 and each of the 4 
succeeding fiscal years.
                                 <all>