[Senate Report 108-394]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 784
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-394
======================================================================
 
 ASTHMATIC SCHOOLCHILDREN'S TREATMENT AND HEALTH MANAGEMENT ACT OF 2004

                                _______
                                

                October 8, 2004.--Ordered to be printed

                                _______
                                

    Mr. Gregg, from the Committee on Health, Education, Labor, and 
                   Pensions, submitted the following

                              R E P O R T

                         [To accompany S. 2815]

    The Committee on Health, Education, Labor, and Pensions, to 
which was referred the bill (S. 2815) to give preference 
regarding States that require schools to allow students to 
self-administer medication to treat that student's asthma or 
anaphylaxis, and for other purposes, having considered the 
same, reports favorably thereon without an amendment and 
recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and need for legislation.................................1
 II. Summary..........................................................2
III. History of legislation and votes in committee....................3
 IV. Explanation of bill and committee views..........................4
  V. Cost estimate....................................................4
 VI. Regulatory impact statement......................................5
VII. Application of law to the legislative branch.....................5
VIII.Section-by-section analysis......................................5

 IX. Changes in existing law..........................................6

                  I. Purpose and Need for Legislation

    According to reports of the Centers for Disease Control and 
Prevention (CDC) and the National Institutes of Health (NIH), 
of 20 million Americans with asthma, 6.3 million are children 
under 18 years of age. This chronic condition is the cause of 
728,000 emergency room visits, 214,000 hospitalizations and 223 
deaths annually among children. It also accounts for 14 million 
missed schools days each year. The CDC reports indicate that 
working parents of children with asthma lose an estimated 1 
billion dollars in productivity annually. Unfortunately, the 
number of persons with asthma has doubled in the United States 
during the past 15 years.
    Consistent with the goals of the Healthy People 2010, the 
CDC-directed National Asthma Program is based on three public 
health strategies; (1) tracking, collecting and analyzing data 
on an ongoing basis to understand the ``who, what, and where'' 
of asthma; (2) interventions including translation of 
scientific information into public health practices to reduce 
the burden of asthma including school based strategies for 
children, and (3) partnerships with stakeholders in developing, 
implementing and evaluating local asthma control programs. The 
CDC recommends development of asthma friendly school 
environments designed to help students manage their asthma 
through a coordinated approach.
    The National Asthma Education and Prevention Program, 
coordinated by the National Heart, Lung and Blood Institute, 
published a resolution recommending that schools adopt policies 
for the management of asthma that encourage the active 
participation of students in the self-management of their 
condition and allow for the most consistent, active 
participation in all school activities. In 2002, a committee of 
experts organized by Rand Corporation for improving childhood 
asthma outcomes also recommended that the Secretary of the 
Health and Human Services (HHS) consider giving states 
incentives to adopt policies that address the needs of children 
with asthma.
    Schools should be a safe place where children learn and 
play; that should be true for children with asthma also. 
Thirty-one states have laws protecting the rights of asthmatic 
children to carry and self-administer metered-dose inhalers. 
Nineteen states expand this protection to include auto-
injectable epinephrine. Furthermore, additional states have 
pending legislation to allow children to carry their inhalers 
and anaphylaxis medication at school. Experts, including the 
NIH and CDC report that self-administration of asthma 
medication reduces unnecessary emergency room visits, reduces 
missed school days, promotes participation in school activities 
and even saves lives. However, many schools do not allow and 
many states do not require schools to allow students to manage 
their asthma during school hours. The goal of this legislation 
is to build on the successful momentum that many states are 
currently experiencing in implementing comprehensive and 
effective asthma-related programs in schools.

                              II. Summary

    The bill, as passed by the committee, requires that the 
Secretary of Health and Human Services, in making any grant to 
States that is asthma-related, shall give preference to any 
State with statutory or regulatory provisions described in the 
proposed bill. The State must require each public elementary 
and secondary school to grant an authorization for self-
administration of asthma medication if the student has 
demonstrated the skill level necessary to use the asthma 
medication and any device that is necessary to administer the 
medication. The State must also require schools to grant an 
authorization for self-administration of the asthma medication 
in accordance with a written treatment plan prescribed by the health 
care practitioner with documentation from parents. The authorization 
granted to asthmatic children to possess and use medications must 
extend to any school sponsored activity such as before-school and 
after-school activities, and transit to and from school and school-
sponsored activities. The plan must be renewed annually and the back up 
medication, if provided by parents or guardians, must be kept at a 
student's school in a location easily accessible to the student in 
event of an emergency.
    The grant preferences are to apply to public-health-
oriented, asthma-related grants to States generally awarded by 
the CDC. The bill gives the Secretary the discretion to 
determine which asthma-related grants to States would receive 
preference described in the Act. NIH grants to researchers or 
grants from other agencies to health care institutions for 
basic and clinical research, or diagnostic and therapeutic 
innovation, surveillance and epidemiology, and community 
approaches by health care institutions to achieve reduction in 
asthma-related morbidity and mortality are not made through 
States and will not be affected by this bill. The committee 
does not intend for this legislation to have an adverse funding 
impact on current grants and continuation funding of those 
grants solely due to a lack of statutory or regulatory 
provisions described in this legislation.
    The bill includes a rule of construction that states that 
nothing in the subsection creates a cause of action or in any 
other way increases or diminishes the liability of any person 
under the law. The purpose of this rule is to address concerns 
of school administrators about potential increase in their 
liability, for example from errors in self-administration of 
drugs by asthmatic children that may result from the provisions 
of this bill.
    The amendment made by this statute shall apply to grants 
made on or after the date that is 9 months after the date of 
the enactment of this Act. This will allow time for any State 
that currently does not have appropriate statutes or 
regulations in place to make necessary changes in their 
statutes. The committee anticipates that 9 months is sufficient 
time for any State to put in place provisions necessary to meet 
the conditions of the Act.
    The bill expresses the sense of the Senate in commending 
the CDC for creating strategies for addressing asthma in a 
coordinated school program and encourages all schools to review 
the CDC recommendations and adopt the policies that best meet 
their students' needs.

           III. History of Legislation and Votes in Committee

    On July 14, 2004, the House Committee on Energy and 
Commerce, reported favorably a bill (H.R. 2023) to give 
preferences to states that require schools to allow students to 
self-administer medication to treat their asthma or 
anaphylaxis. On September 20, 2004, Senator DeWine (for 
himself) and Senators Corzine, Durbin and Kennedy introduced 
S.2815, which is identical to H.R.2023 as passed by the House 
committee. The committee passed the bill (S.2815) by unanimous 
consent on September 22, 2004.

            IV. Explanation of the Bill and Committee Views

    The committee intends to ensure that asthmatic children are 
able to remain healthy, attend schools and participate in 
learning and play activities. To achieve these goals, they 
should be able to take the medications prescribed by their 
health care providers. Schools should be aware of the 
management plan prescribed by the child's physician and keep 
the back-up medication where the child can have access to it in 
the event of emergency.
    The bill, as passed by the committee, will build on the 
successful momentum that many States are currently experiencing 
in developing asthma-related programs in schools. Federal 
asthma-related grants will be awarded by the Secretary to 
assist these States in continuing to develop effective asthma-
related programs in the school system. Preference for those 
grants will go to States with demonstrated, comprehensive, and 
effective asthma programs-including provisions regarding self-
medication in schools. The committee notes that this 
legislation does not affect whether States pass laws that 
require schools to allow self-medication for diseases and 
health conditions other than asthma and anaphylaxis.

                            V. Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 27, 2004.
Hon. Judd Gregg,
Chairman, Committee on Health, Education, Labor and Pensions,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2815, the Asthmatic 
Schoolchildren's Treatment and Health Management Act of 2004.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Tim 
Gronniger (for federal costs), and Leo Lex (for the state and 
local impact).
            Sincerely,
                                         Elizabeth Robinson
                               (For Douglas Holtz-Eakin, Director).
    Enclosure.

S. 2815--Asthmatic Schoolchildren's Treatment and Health Management Act 
        of 2004

    S. 2815 would modify the Public Health Service Act by 
directing the Secretary of Health and Human Services, in making 
any asthma-related grant to a state, to give preference to 
states that require schools to permit students to self-
administer medication for asthma and anaphylaxis.
    The bill would not change the purposes for which the 
Secretary makes asthma-related grants. CBO estimates that 
enacting S. 2815 would not have a significant effect on the 
federal budget. Enacting S. 2815 would not affect direct 
spending or revenues.
    S. 2815 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act, but it 
would alter conditions for the Children's Asthma Treatment 
Grants Program and other asthma-related grants, giving 
preferences to states who allow schoolchildren to self-
administer asthma medication. While the bill would not alter 
the total amount of grants available, the new preference could 
change the distribution of funds among states.
    The CBO staff contacts are Tim Gronniger (for federal 
costs), and Leo Lex (for the state and local impact. This 
estimate was approved by Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    VI. Regulatory Impact Statement

    The committee has determined that there will be de minimus 
changes in the regulatory burden imposed by the bill.

           VII. Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act (CAA) requires a description of the 
application of this bill to the legislative branch. This bill 
does not amend any act that applies to the legislative branch.

                   VIII. Section-by-Section Analysis


Section 1. Short title

    The short title of the Act is ``Asthmatic School Children's 
Treatment and Health Management Act of 2004''.

Section 2. Findings

    The Section 2 reviews the findings of the Congress with 
respect to prevalence of asthma, and the impact of this chronic 
disease on the use of health care facilities, attendance at 
schools, and costs. The section reviews the current status of 
regulation in states and problems encountered by children who 
attend schools that do not allow self-management of asthma. 
These problems, in addition to missed school days, include many 
instances of illness, emergency room visits, hospitalization, 
and death. The section provides a rationale for the bill.

Section 3. Preference for States that allow students to self-administer 
        medication to treat asthma and anaphylaxis

    Section 399L of the Public Health Service Act (42 U.S.C. 
280g) is amended by redesignating subsection (d) as subsection 
(e) and inserting after the subsection (c) a subsection (d) to 
include the following.
    The Secretary, in awarding any grant under this section or 
any other grant that is asthma-related (as determined by the 
Secretary) to a State, shall give preference to any State that 
satisfies specific criteria. The State must require each public 
elementary and secondary school to grant an authorization for 
self-administration of asthma medication in accordance with a 
written treatment plan prescribed by the health care 
practitioner with documentation from parents including 
documents related to liability. The authorization extends to 
any school sponsored activity such as before-school and after-
school activities. The plan must be renewed annually and the 
back up medication, if provided by parents or guardians, must 
be kept at a student's school in a location easily accessible 
to the student in event of an emergency. The authorization must 
be effective only for the same school and the same year for 
which it is granted and renewed by the parent or guardian each 
subsequent school year.
    The section will be applicable after 9 months from the date 
of enactment to allow States to pass appropriate legislation.

Section 4. Sense of Congress commending CDC for its strategies for 
        addressing asthma within a coordinated school health programs

    The section commends the CDC for identifying and creating 
strategies for addressing asthma with a coordinated school 
program for schools to address asthma and encourages all 
schools to review these policies to meet the needs of their 
student population.

                      IX. Changes in Existing Law

    In compliance with rule XXVI paragraph 12 of the Standing 
Rules of the Senate, the following provides a print of the 
statute or the part or section thereof to be amended or 
replaced (existing law proposed to be omitted is enclosed in 
black brackets, new matter is printed in italic, existing law 
in which no change is proposed is shown in roman):

PUBLIC HEALTH SERVICE ACT

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                      PART P--ADDITIONAL PROGRAMS

SEC. 399L. CHILDREN'S ASTHMA TREATMENT GRANTS PROGRAM.

    (a) Authority To Make Grants.--
          (1) In general.--* * *

           *       *       *       *       *       *       *

    (d) Preference for States That Allow Students To Self-
Administer Medication To Treat Asthma and Anaphylaxis.--
          (1) Preference.--The Secretary, in awarding any grant 
        under this section or any other grant that is asthma-
        related (as determined by the Secretary) to a State, 
        shall give preference to any State that satisfies the 
        following:
                  (A) In general.--The State must require that 
                each public elementary school and secondary 
                school in that State will grant to any student 
                in the school an authorization for the self-
                administration of medication to treat that 
                student's asthma or anaphylaxis, if--
                          (i) a health care practitioner 
                        prescribed the medication for use by 
                        the student during school hours and 
                        instructed the student in the correct 
                        and responsible use of the medication;
                          (ii) the student has demonstrated to 
                        the health care practitioner (or such 
                        practitioner's designee) and the school 
                        nurse (if available) the skill level 
                        necessary to use the medication and any 
                        device that is necessary to administer 
                        such medication as prescribed;
                          (iii) the health care practitioner 
                        formulates a written treatment plan for 
                        managing asthma or anaphylaxis episodes 
                        of the student and for medication use 
                        by the student during school hours; and
                          (iv) the student's parent or guardian 
                        has completed and submitted to the 
                        school any written documentation 
                        required by the school, including the 
                        treatment plan formulated under clause 
                        (iii) and other documents related to 
                        liability.
                  (B) Scope.--An authorization granted under 
                subparagraph (A) must allow the student 
                involved to possess and use his or her 
                medication--
                          (i) while in school;
                          (ii) while at a school-sponsored 
                        activity, such as a sporting event; and
                          (iii) in transit to or from school or 
                        school-sponsored activities.
                  (C) Duration of authorization.--An 
                authorization granted under subparagraph (A)--
                          (i) must be effective only for the 
                        same school and school year fro which 
                        it is granted; and
                          (ii) must be renewed by the parent or 
                        guardian each subsequent school year in 
                        accordance with this subsection.
                  (D) Backup medication.--The State must 
                require that backup medication, if provided by 
                a student's parent or guardian, be kept at a 
                student's school in a location to which the 
                student has immediate access in the event of an 
                asthma or anaphylaxis emergency.
                  (E) Maintenance of information.--The State 
                must require that information described in 
                clauses (iii) and (iv) of subparagraph (A) be 
                kept on file at the student's school in a 
                location easily accessible in the event of an 
                asthma or anaphylaxis emergency.
          (2) Rule of construction.--Nothing in this subsection 
        creates a cause of action or in any other way increases 
        or diminishes the liability of any person under any 
        other law.
          (3) Definitions.--For purposes of this subsection:
                  (A) Elementary school and secondary school.--
                The terms `elementary school' and `secondary 
                school' have the meanings given to those terms 
                in section 9101 of the Elementary and Secondary 
                Education Act of 1965.
                  (B) Health care practitioner.--The term 
                `health care practitioner' means a person 
                authorized under law to prescribe drugs subject 
                to section 503(b) of the Federal Food, Drug, 
                and Cosmetic Act.
                  (C) Medication.--The term `medication' means 
                a drug as that term is defined in section 201 
                of the Federal Food, Drug, and Cosmetic Act and 
                includes inhaled bronchodilators and auto-
                injectable epinephrine.
                  (D) Self-administration.--The term `self-
                administration' means a student's discretionary 
                use of his or her prescribed asthma or 
                anaphylaxis medication, pursuant to a 
                prescription or written direction from a health 
                care practitioner.

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