[Congressional Record (Bound Edition), Volume 160 (2014), Part 2]
[Senate]
[Pages 3101-3106]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. HARKIN (for himself, Mr. Murphy, and Ms. Ayotte):
  S. 2036. A bill to protect all school children against harmful and 
life-threatening seclusion and restraint practices; to the Committee on 
Health, Education, Labor, and Pensions.
  Mr. HARKIN. Mr. President, I come to the floor today to introduce a 
bill to support teachers, paraprofessionals and especially students, 
students with challenging behaviors.
  Last week I released a report titled ``Dangerous Use of Seclusion and 
Restraints in Schools Remains Widespread and Difficult To Remedy: Ten 
Case Studies.'' This report is the product of a 6-month investigation 
by my HELP Committee staff
  The report highlights the continued use of seclusion and restraints 
in schools, the lack of information families have about these 
practices, and the inability, in many cases, of families to stop the 
use of them on their children.
  We found that in many cases, families may not know their children are 
being secluded and restrained. In some cases children are being 
secluded and restrained for months at a time, multiple times a day, 
sometimes for many hours, all without the knowledge of their families.
  We also found that families do not have the tools to stop these 
practices. Provisions of some of our education laws, such as the 
Individuals with Disabilities Education Act, prohibit families from 
seeking redress and relief from the use of seclusion and restraints 
with their children unless they exhaust their due process options, 
which can take months or even years. This often leaves families with no 
choice but to remove their children from school in order to protect 
them.
  Finally, the report found it is almost impossible for families to 
gather the information they need to prove harm and to stop the use of 
seclusion and restraints. The lack of access to information causes 
families to give up on their schools and there are many cases where 
families move to a new city or even out of state.
  These events are not isolated incidents, as some claim. In March 
2011, the U.S. Department of Education published the ``Civil Rights 
Data Collection Report'' that showed there were over 66,000 occurrences 
of seclusion and restraints during the 2009-2010 school year. In other 
words, there were 66,000 times when children were put at risk of 
injury, psychological trauma and death.
  These incidents occur everywhere, even in my own state of Iowa. Last 
year, in a public residential school, at least three young women were 
secluded for up to 23 hours a day--in one case, for as long as nine 
months. If it were not for the good work of my state's Protection and 
Advocacy agency, Disability Rights Iowa, that practice might have 
continued indefinitely.
  These practices aren't just ineffective, they can cause harm. Take 
for example 8-year-old Isabel Loeffler, who was subjected to restraint 
and seclusion when she was living in Iowa. Isabel was locked in a 
seclusion room for up to three hours at a time on over 100 different 
occasions. She was held from behind and forced to draw with crayons, 
sometimes with four staff members holding her. When Isabel failed a 
task, she was secluded or restrained. The use of these practices made 
her behaviors worse, not better, so her parents withdrew her from 
school.
  Injuries, both physical and psychological, are horrible enough, but 
at times the use of seclusion and restraints results in death. Jonathan 
King was secluded in an 8 by 8 foot concrete room in his Georgia school 
from the time he was a kindergartener. During one school year Jonathan 
was placed in a seclusion room, unobserved, 19 times over the course of 
29 days for over an hour and a half.
  His parents did not know this was happening to him.

[[Page 3102]]

  On the day he died, his teacher had given him a rope to hold up his 
pants before she secluded him. Jonathan, who hated wearing a belt, had 
threatened to kill himself before. While he was in seclusion that day 
he hung himself with that rope. Jonathan was just 13 years old.
  It is time to put a stop to these abuses. We need to make sure 
schools have access to the practices to serve our children well. The 
data show that too many teachers do not have the tools they need to 
help children with challenging behaviors. Too many parents do not know 
how their children are being treated at school. And too many children 
are being mentally and physically scarred because of the use of these 
harmful practices and the lack of knowledge about positive 
alternatives.
  So I have come to the floor, today, to urge my colleagues to join 
with me in stopping these unconscionable practices. I come to ask that 
we work to provide teachers and administrators with the knowledge and 
skills they need to teach children in safe, supportive environments and 
to stop these violations of basic human rights. It is time to stop the 
systematic use of restraint and seclusion in our schools.
  In the United States, we have regulations to protect people in 
hospitals, in nursing homes, and in psychological facilities from 
restraint and seclusion. But not in our schools. The last frontier for 
prohibiting seclusion and allowing restraint only in emergency 
situations is our classrooms.
  This is why, today, I am introducing the Keeping All Students Safe 
Act. This bill prohibits the use of seclusion as well as mechanical and 
chemical restraints in schools. Period. Complete prohibition of these 
practices that have no educational or therapeutic benefits for 
children.
  My bill also places strict limits on when, how, and by whom physical 
restraints may be used. Physical restraints could only be used in 
emergency situations. Not for so-called treatment. Not as discipline. 
Not as negative reinforcement. For emergencies only.
  My bill would also create greater transparency so parents will know 
when an emergency situation happens and when a restraint has been used. 
It requires that schools meet with parents to explain the emergency and 
to plan for how to avoid emergencies in the future.
  In addition, the bill allows families to file a civil action even if 
they have not exhausted their due process rights under IDEA. This will 
give families more power to stop the use of seclusion and restraints 
with their children.
  There has been a lot of debate on whether it is right to implement a 
complete ban on seclusion in schools. I answer with an unequivocal yes. 
Putting a child in a locked room without supervision is absolutely 
wrong. Because when children are locked up, they frequently hurt 
themselves in frustration. Sometimes they hit their bodies against the 
wall until they are bruised and bloodied. Sometimes they vomit. 
Sometimes, as in the case of Jonathan King, they die.
  Something is seriously wrong when a child suffers post-traumatic 
stress disorder after attending school. To lock a child up with no 
supervision is dangerous and, in many instances, can amount to acute 
psychological torture.
  Proponents of the use of seclusion and restraints call them 
``effective practices'' or ``useful techniques.'' But they are not. A 
child does not learn how to hold herself still, to listen more 
attentively, or to do her work by having her teacher lock her up, strap 
her down, or sit on her. Using euphemisms and politically correct terms 
to describe these practices does not disguise their barbarity and 
harmfulness. By no stretch of the imagination can sitting on a child be 
about educating.
  There are alternatives. We know that school-wide, preventive 
practices can reduce and eliminate the use of seclusion and restraints. 
Ten years ago, at the Centennial School in Lehigh, PA, a school that 
serves children with the most challenging behaviors, the use of 
restraints was pervasive; over 1,000 occurrences per school year. Now, 
through the leadership of Dr. Michael George and the systematic use of 
preventive strategies, restraints are used less than 5 times a year and 
only in the most severe of emergency situations, only by trained 
personnel, and never as punishment or behavior management.
  The Keeping All Students Safe Act will make positive behavioral 
interventions more widely available for educators. It will provide 
supports to schools to improve the school climate and culture through 
evidence-based practices and data-driven decision-making. The bill 
calls for better data collection on the use of seclusion and restraints 
in order to document their occurrence and efforts to eliminate them. 
The bill calls for mandatory reporting so that parents will know why, 
when, and how physical restraints are used on their children.
  We know that teachers want to teach and to keep all their students 
safe. Let us give them the skills and knowledge to prevent challenging 
behaviors, and when they occur, to respond to them in the most 
effective ways possible.
  If Isabel's teachers had the support, knowledge and training that the 
Keeping All Students Safe Act will make available, they could have 
identified the interventions she needed to be successful. They could 
have known what reinforcements worked for her. And they could have 
known what triggers would make her behavior worse. Instead of locking 
her in a closet, where she wet herself and hit herself in the head, 
Isabel's teachers could have fundamentally improved her educational 
experience, helping her to reach her potential.
  All children have the right to be safe. Parents entrust schools to 
protect their children and help them to flourish. Let us make good on 
that trust by prohibiting seclusion and making the use of restraint so 
uncommon that it is only used in emergency situations. I urge my 
colleagues to join with me to protect all students, and to ensure that 
all educators have the tools they need to keep all of students safe.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2036

       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.

[[Page 3103]]

       (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''--
       (A) means the isolation of a student in a room, enclosure, 
     or space that is--
       (i) locked; or
       (ii) unlocked and the student is prevented from leaving; 
     and
       (B) does not include a time out.
       (12) Secretary.--The term ``Secretary'' means the Secretary 
     of Education, and, where appropriate, the Secretary of the 
     Interior and the Secretary of Defense.
       (13) State-approved crisis intervention training program.--
     The term ``State-approved crisis intervention training 
     program'' means a training program proposed by a local 
     educational agency and 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.
       (14) 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.).
       (15) Time out.--The term ``time out'' means a behavior 
     management technique that may involve the separation of the 
     student from the group, in a non-locked setting, for the 
     purpose of calming. Time out is not seclusion.

     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 immediate danger of 
     serious physical harm 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 physical harm to 
     the student or others, except in a case of a rare and clearly 
     unavoidable emergency circumstance posing immediate danger of 
     serious physical harm.
       (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 immediate 
     danger of serious physical harm to the student or others; or
       (iii) less restrictive interventions would be effective in 
     stopping such immediate danger of serious physical harm.
       (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.--
       (i) In general.--Except as provided in clause (ii), 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.
       (ii) Exception.--The use of physical restraints as a 
     planned intervention may be written into a student's 
     individualized education program, individual safety plan, or 
     plan developed pursuant to section 504 of the Rehabilitation 
     Act of 1973 (29 U.S.C. 794) if State law allows for the use 
     of physical restraint as part of such program or plan, as 
     agreed upon by school personnel, the family of the student, 
     and the individualized education program committee if such 
     individuals--

       (I) have considered less restrictive means to address 
     behavioral concerns that would meet the emergency standard 
     described in subparagraph (A) and, when using such physical 
     restraints in an emergency, meet the

[[Page 3104]]

     conditions described in subparagraphs (B), (C), and (D); and
       (II) have conducted a researched based, individualized 
     functional behavioral analysis and implemented a 
     corresponding positive intervention plan based on such 
     functional behavioral analysis that--

       (aa) addresses preventative measures used to reduce or 
     prevent emergencies; and
       (bb) is written into the student's individualized education 
     program, individual safety plan, or plan developed pursuant 
     to section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 
     794).
       (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--

       (aa) the person who imposed the restraint, the immediate 
     adult witnesses, a representative of the administration, a 
     school mental health profession, and at least 1 family member 
     of the student participate in a debriefing session; and
       (bb) the student who was restrained is given the 
     opportunity to discuss the student's perspective about the 
     event with a trusted adult who will communicate to the 
     debriefing session group.
       (B) Debriefing session.--
       (i) In general.--

       (I) Timing.--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.
       (II) Observations by school personnel.--Each adult witness 
     in the proximity of the student immediately before and during 
     the time of the of the physical restraint but not directly 
     involved shall submit the witness's observations in writing 
     for the debriefing session.
       (III) Parental legal rights.--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 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. INTERACTIONS; RULES OF CONSTRUCTION.

       (a) Rules of Construction.--
       (1) Rights and remedies of students and parents.--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.
       (2) Restrictions on secretarial prohibitions.--Nothing in 
     this Act shall be construed to authorize the Secretary to 
     promulgate regulations prohibiting the use of--
       (A) time outs; or
       (B) 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--
       (i) restraints for medical immobilization;
       (ii) 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
       (iii) vehicle safety restraints when used as intended 
     during the transport of a students in a moving vehicle.
       (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.
       (c) Exhaustion of Due Process.--
       (1) In general.--A student may file a civil action under 
     the Constitution, the Americans with Disabilities Act of 1990 
     (42 U.S.C. 12101 et seq.), title V of the Rehabilitation Act 
     of 1973 (29 U.S.C. 791 et seq.), or other applicable Federal 
     law in the case of the use of seclusion or restraint in 
     violation of this Act seeking relief from the use of 
     seclusion or restraint with respect of such student.
       (2) Nonapplicability.--Section 615(l) of the Individuals 
     with Disabilities Education Act (20 U.S.C. 1415(l)) shall not 
     apply to an action filed pursuant to paragraph (1).

     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

[[Page 3105]]

     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 
     10, 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. APPLICABILITY.

       (a) 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 
     provided by the Department of Education.
       (b) Home Schools.--Nothing in this Act shall be construed 
     to--
       (1) affect a home school, whether or not a home school is 
     treated as a private school or home school under State law; 
     or
       (2) consider a parent who is schooling a child at home as 
     school personnel.

     SEC. 10. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated such sums as may be 
     necessary to carry out this Act for fiscal year 2015 and each 
     of the 4 succeeding fiscal years.
                                 ______
                                 
      By Mr. ROBERTS (for himself, Mr. Tester, Mr. Inhofe, Mr. Durbin, 
        Mr. Enzi, Ms. Baldwin, Mr. Moran, Mr. Franken, Mr. Grassley, 
        Mr. Barrasso, Mrs. Fischer, Ms. Collins, Mr. Johanns, Ms. 
        Klobuchar, Mr. Hoeven, and Mr. Kirk):
  S. 2037. A bill to amend title XVIII of the Social Security Act to 
remove the 96-hour physician certification requirement for inpatient 
critical access hospital services; to the Committee on Finance.
  Mr. ROBERTS. Mr. President, I started my public service career 
fighting for rural health. In a State that has many rural hospitals, 
the rural health care delivery system is especially important to 
Kansas. One of my first speeches was to rural hospitals. Since that 
time, I have been beating the drum, so to speak, for our rural areas 
about how important it is to focus on rural health.
  I have always said that people in rural towns deserve the same access 
to care and level of treatment as their urban counterparts. I have made 
it my mission to protect our rural health system and patient access to 
the best possible care. I am honored to serve as the cochair of the 
Senate Rural Health Caucus where I work with my colleagues to fight for 
our rural health care system every day.
  Unfortunately, these days it feels as though rural health care, and 
all of those involved in it, face an uphill battle. Over the past few 
years, the rural health system has continued to face even more 
challenges.
  Funding for rural health care programs has been targeted again and 
again. This year the Senate Finance Committee held a markup with 
regular order where we considered some of the rural extenders that are 
absolutely vital to our rural communities. Regrettably, we have more 
work to do. We have to convince and educate our colleagues, this 
administration, and everyone else about the importance of rural health 
care. We have been successful in protecting some of the ideas I have 
championed, especially on the rural extenders side, but we have more 
work to do. As this process moves forward, we need to ensure we follow 
regular order on the floor of the Senate and for any pay-fors for the 
doc fix package. While I was pleased with some of the additions that 
addressed rural health care in the package passed out of committee, I 
have concerns that these issues were not included or addressed in the 
most recent package introduced in the House and in the Senate.
  In addition to ensuring rural health is part of any moving 
legislation, I

[[Page 3106]]

wish to ensure it is a package that is offset and paid for, and this 
has to be done before I can support it. But the bottom line is that we, 
the Senate, need to return to regular order and ensure that practice 
does continue.
  As will many of my colleagues in the Senate, I will continue to 
vigorously fight to rein in Federal spending and to reduce the deficit. 
In order to address this fiscal crisis, I think Congress must enact 
basic structural changes to entitlement programs that will strengthen 
and preserve these programs for future generations while protecting 
current participants. Without real tangible reform and cuts in Federal 
spending, we will bankrupt the country. At the same time, we need to 
ensure that any of those policies we put in place do not result in a 
disproportionate impact on our rural health care system or restrict 
patients' access to the care they need. As I started saying today, this 
is going to be an uphill battle. But I, for one, am ready to lead the 
charge.
  As a member of both the Finance and HELP Committees, as well as the 
cochair of the Rural Health Caucus, I have tried to be a leader in the 
discussion about the need to address the entire health system.
  I have made it a point that within our health care system 
discussions, we need to talk about the differences between our rural 
areas and the care and treatment provided in those rural settings and 
their urban counterparts. We need to address common misconceptions 
about funding challenges in rural communities before taking a Lizzie 
Borden ax to the funding streams.
  Throughout my career in public office, I have made it a point to 
always fight for Kansas and rural health care providers. This has been 
one of my top priorities in Congress. I understand the important role 
of rural health in America and continue to advocate for policies that 
protect and preserve these benefits.
  Most recently, the Centers for Medicare and Medicaid Services--CMS--
have made some changes that will be particularly harmful to rural 
health. More specifically, their changes will force doctors into a 
guessing game about their patients. The condition of payment changes 
CMS is making would require the physician, and no other level provider, 
to not only predict at the time of admission to the critical access 
hospital that the patient will require hospital care for more than two 
midnights, but also that the patient can be cared for and discharged in 
less than 96 hours. This is an extremely narrow CMS window for the 
physician to make a determination about that patient's future needs--
extremely difficult, if not impossible. A physician may certify that 
they expect the patient to be treated and discharged within 96 hours, 
but, unfortunately, the patient's situation may change and they may 
need to be kept longer. The physician's concern will be that they have 
failed to meet the terms of their certification according to CMS. This 
is likely to lead to premature discharges and readmissions, both of 
which CMS has taken actions to minimize.
  A CEO for one of our critical access hospitals in Council Grove, KS, 
writes:

       This new ``condition of payment'' rule causes potential 
     conflicts with what is best for the patient, causes issues 
     for the physician in having to predict outcomes at admission 
     in complex cases, and may cause increased expense for 
     medically unnecessary transfers to more costly care centers.

  Today I am introducing the Critical Access Hospital Relief Act of 
2014. My bipartisan legislation would remove the condition of payment 
for critical access hospitals that requires a physician to certify that 
each patient will be discharged or transferred in less than 96 hours. 
This is another example of having to tell CMS, ``If it isn't broken, 
then there is no need to fix it.'' We need to focus on ensuring rural 
patients have access to their health system, not coming up with 
bureaucratic ways to make it harder for patients in rural areas to get 
quality care from their doctors.
  I urge my colleagues to cosponsor the Critical Access Hospital Relief 
Act of 2014.

                          ____________________