[House Report 111-417]
[From the U.S. Government Publishing Office]


111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     111-417

======================================================================



 
       PREVENTING HARMFUL RESTRAINT AND SECLUSION IN SCHOOLS ACT

                                _______
                                

 February 23, 2010.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. George Miller of California, from the Committee on Education and 
                     Labor, submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 4247]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Education and Labor, to whom was referred 
the bill (H.R. 4247) to prevent and reduce the use of physical 
restraint and seclusion in schools, and for other purposes, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Preventing Harmful Restraint and 
Seclusion in Schools Act''.

SEC. 2. FINDINGS.

  Congress finds the following:
          (1) Physical restraint and seclusion have resulted in 
        physical injury, psychological trauma, and death to children in 
        public and private schools. National research shows students 
        have been subjected to physical restraint and seclusion in 
        schools as a means of discipline, to force compliance, or as a 
        substitute for appropriate educational support.
          (2) Behavioral interventions for children must promote the 
        right of all children to be treated with dignity. All children 
        have the right to be free from physical or mental abuse, 
        aversive behavioral interventions that compromise health and 
        safety, and any physical restraint or seclusion imposed solely 
        for purposes of discipline or convenience.
          (3) Safe, effective, evidence-based strategies are available 
        to support children who display challenging behaviors in school 
        settings. Staff training focused on the dangers of physical 
        restraint and seclusion as well as training in evidence-based 
        positive behavior supports, de-escalation techniques, and 
        physical restraint and seclusion prevention, can reduce the 
        incidence of injury, trauma, and death.
          (4) School personnel have the right to work in a safe 
        environment and should be provided training and support to 
        prevent injury and trauma to themselves and others.
          (5) Despite the widely recognized risks of physical restraint 
        and seclusion, a substantial disparity exists among many States 
        and localities with regard to the protection and oversight of 
        the rights of children and school personnel to a safe learning 
        environment.
          (6) Children are subjected to physical restraint and 
        seclusion at higher rates than adults. Physical restraint which 
        restricts breathing or causes other body trauma, as well as 
        seclusion in the absence of continuous face-to-face monitoring, 
        have resulted in the deaths of children in schools.
          (7) Children are protected from inappropriate physical 
        restraint and seclusion in other settings, such as hospitals, 
        health facilities, and non-medical community-based facilities. 
        Similar protections are needed in schools, yet such protections 
        must acknowledge the differences of the school environment.
          (8) Research confirms that physical restraint and seclusion 
        are not therapeutic, nor are these practices effective means to 
        calm or teach children, and may have an opposite effect while 
        simultaneously decreasing a child's ability to learn.
          (9) The effective implementation of school-wide positive 
        behavior supports is linked to greater academic achievement, 
        significantly fewer disciplinary problems, increased 
        instruction time, and staff perception of a safer teaching 
        environment.

SEC. 3. PURPOSES.

  The purposes of this Act are to--
          (1) prevent and reduce the use of physical restraint and 
        seclusion in schools;
          (2) ensure the safety of all students and school personnel in 
        schools and promote a positive school culture and climate;
          (3) protect students from--
                  (A) physical or mental abuse;
                  (B) aversive behavioral interventions that compromise 
                health and safety; and
                  (C) any physical restraint or seclusion imposed 
                solely for purposes of discipline or convenience;
          (4) ensure that physical restraint and seclusion are imposed 
        in school only when a student's behavior poses an imminent 
        danger of physical injury to the student, school personnel, or 
        others; and
          (5) assist States, local educational agencies, and schools 
        in--
                  (A) establishing policies and procedures to keep all 
                students, including students with the most complex and 
                intensive behavioral needs, and school personnel safe;
                  (B) providing school personnel with the necessary 
                tools, training, and support to ensure the safety of 
                all students and school personnel;
                  (C) collecting and analyzing data on physical 
                restraint and seclusion in schools; and
                  (D) identifying and implementing effective evidence-
                based models to prevent and reduce physical restraint 
                and seclusion in schools.

SEC. 4. DEFINITIONS.

  In this Act:
          (1) Chemical restraint.--The term ``chemical restraint'' 
        means a drug or medication used on a student to control 
        behavior or restrict freedom of movement that is not--
                  (A) prescribed by a licensed physician for the 
                standard treatment of a student's medical or 
                psychiatric condition; and
                  (B) administered as prescribed by the licensed 
                physician.
          (2) Educational service agency.--The term ``educational 
        service agency'' has the meaning given such term in section 
        9101(17) of the Elementary and Secondary Education Act of 1965 
        (20 U.S.C. 7801(17)).
          (3) Elementary school.--The term ``elementary school'' has 
        the meaning given the term in section 9101(18) of the 
        Elementary and Secondary Education Act of 1965 (20 U.S.C. 
        7801(18)).
          (4) Local educational agency.--The term ``local educational 
        agency'' has the meaning given the term in section 9101(26) of 
        the Elementary and Secondary Education Act of 1965 (20 U.S.C. 
        7801(26)).
          (5) Mechanical restraint.--The term ``mechanical restraint'' 
        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''.
          (6) Parent.--The term ``parent'' has the meaning given the 
        term in section 9101(31) of the Elementary and Secondary 
        Education Act of 1965 (20 U.S.C. 7801(31)).
          (7) Physical escort.--The term ``physical escort'' has the 
        meaning given the term in section 595(d)(2) of the Public 
        Health Service Act (42 U.S.C. 290jj(d)(2)), except that the 
        meaning shall be applied by substituting ``student'' for 
        ``resident''.
          (8) Physical restraint.--The term ``physical restraint'' has 
        the meaning given the term in section 595(d)(3) of the Public 
        Health Service Act (42 U.S.C. 290jj(d)(3)).
          (9) Positive behavior supports.--The term ``positive behavior 
        supports'' means a systematic approach to embed evidence-based 
        practices and data-driven decisionmaking to improve school 
        climate and culture, including a range of systemic and 
        individualized strategies to reinforce desired behaviors and 
        diminish reoccurrence of problem behaviors, in order to achieve 
        improved academic and social outcomes and increase learning for 
        all students, including those with the most complex and 
        intensive behavioral needs.
          (10) Protection and advocacy system.--The term ``protection 
        and advocacy system'' means a protection and advocacy system 
        established under section 143 of the Developmental Disabilities 
        Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15043).
          (11) School.--The term ``school'' means an entity--
                  (A) that--
                          (i) is a public or private--
                                  (I) day or residential elementary 
                                school or secondary school; or
                                  (II) early childhood, elementary 
                                school, or secondary school program 
                                that is under the jurisdiction of a 
                                school, educational service agency, or 
                                other educational institution or 
                                program; and
                          (ii) receives, or serves students who 
                        receive, support in any form from any program 
                        supported, in whole or in part, with funds 
                        appropriated to the Department of Education; or
                  (B) that is a school funded or operated by the 
                Department of the Interior.
          (12) School personnel.--The term ``school personnel'' has the 
        meaning--
                  (A) given the term in section 4151(10) of the 
                Elementary and Secondary Education Act of 1965 (20 
                U.S.C. 7161(10)); and
                  (B) given the term ``school resource officer'' in 
                section 4151(11) of the Elementary and Secondary 
                Education Act of 1965 (20 U.S.C. 7161(11)).
          (13) Secondary school.--The term ``secondary school'' has the 
        meaning given the term in section 9101(38) of the Elementary 
        and Secondary Education Act of 1965 (20 U.S.C. 7801(38)).
          (14) Seclusion.--The term ``seclusion'' has the meaning given 
        the term in section 595(d)(4) of the Public Health Service Act 
        (42 U.S.C. 290jj(d)(4)).
          (15) Secretary.--The term ``Secretary'' means the Secretary 
        of Education.
          (16) State-approved crisis intervention training program.--
        The term ``State-approved crisis intervention training 
        program'' means a training program approved by a State and the 
        Secretary that, at a minimum, provides--
                  (A) evidence-based techniques shown to be effective 
                in the prevention of physical restraint and seclusion;
                  (B) evidence-based techniques shown to be effective 
                in keeping both school personnel and students safe when 
                imposing physical restraint or seclusion;
                  (C) evidence-based skills training related to 
                positive behavior supports, safe physical escort, 
                conflict prevention, understanding antecedents, de-
                escalation, and conflict management;
                  (D) first aid and cardiopulmonary resuscitation;
                  (E) information describing State policies and 
                procedures that meet the minimum standards established 
                by regulations promulgated pursuant to section 5(a); 
                and
                  (F) certification for school personnel in the 
                techniques and skills described in subparagraphs (A) 
                through (D), which shall be required to be renewed on a 
                periodic basis.
          (17) State.--The term ``State'' has the meaning given the 
        term in section 9101 of the Elementary and Secondary Education 
        Act of 1965 (20 U.S.C. 7801).
          (18) State educational agency.--The term ``State educational 
        agency'' has the meaning given the term in section 9101(41) of 
        the Elementary and Secondary Education Act of 1965 (20 U.S.C. 
        7801(41)).
          (19) Student.--The term ``student'' means a student enrolled 
        in a school defined in section 11, except that in the case of a 
        private school or private program, such term means a student 
        enrolled in such school or program who receives support in any 
        form from any program supported, in whole or in part, with 
        funds appropriated to the Department of Education.
          (20) Time out.--The term ``time out'' has the meaning given 
        the term in section 595(d)(5) of the Public Health Service Act 
        (42 U.S.C. 290jj(d)(5)), except that the meaning shall be 
        applied by substituting ``student'' for ``resident''.

SEC. 5. MINIMUM STANDARDS; RULE OF CONSTRUCTION.

  (a) Minimum Standards.--Not later than 180 days after the date of the 
enactment of this Act, in order to protect each student from physical 
or mental abuse, aversive behavioral interventions that compromise 
student health and safety, or any physical restraint or seclusion 
imposed solely for purposes of discipline or convenience or in a manner 
otherwise inconsistent with this Act, the Secretary shall promulgate 
regulations establishing the following minimum standards:
          (1) School personnel shall be prohibited from imposing on any 
        student the following:
                  (A) Mechanical restraints.
                  (B) Chemical restraints.
                  (C) Physical restraint or physical escort that 
                restricts breathing.
                  (D) Aversive behavioral interventions that compromise 
                health and safety.
          (2) School personnel shall be prohibited from imposing 
        physical restraint or seclusion on a student unless--
                  (A) the student's behavior poses an imminent danger 
                of physical injury to the student, school personnel, or 
                others;
                  (B) less restrictive interventions would be 
                ineffective in stopping such imminent danger of 
                physical injury;
                  (C) such physical restraint or seclusion is imposed 
                by school personnel who--
                          (i) continuously monitor the student face-to-
                        face; or
                          (ii) if school personnel safety is 
                        significantly compromised by such face-to-face 
                        monitoring, are in continuous direct visual 
                        contact with the student;
                  (D) such physical restraint or seclusion is imposed 
                by--
                          (i) school personnel trained and certified by 
                        a State-approved crisis intervention training 
                        program (as defined in section 4(16)); or
                          (ii) other school personnel in the case of a 
                        rare and clearly unavoidable emergency 
                        circumstance when school personnel trained and 
                        certified as described in clause (i) are not 
                        immediately available due to the unforeseeable 
                        nature of the emergency circumstance; and
                  (E) such physical restraint or seclusion end 
                immediately upon the cessation of the conditions 
                described in subparagraphs (A) and (B).
          (3) States and local educational agencies shall ensure that a 
        sufficient number of personnel are trained and certified by a 
        State-approved crisis intervention training program (as defined 
        in section 4(16)) to meet the needs of the specific student 
        population in each school.
          (4) The use of physical restraint or seclusion as a planned 
        intervention shall not be written into a student's education 
        plan, individual safety plan, behavioral plan, or 
        individualized education program (as defined in section 602 of 
        the Individuals with Disabilities Education Act (20 U.S.C. 
        1401)). Local educational agencies or schools may establish 
        policies and procedures for use of physical restraint or 
        seclusion in school safety or crisis plans, provided that such 
        school plans are not specific to any individual student.
          (5) Schools shall establish procedures to be followed after 
        each incident involving the imposition of physical restraint or 
        seclusion upon a student, including--
                  (A) procedures to provide to the parent of the 
                student, with respect to each such incident--
                          (i) an immediate verbal or electronic 
                        communication on the same day as each such 
                        incident; and
                          (ii) within 24 hours of each such incident, 
                        written notification; and
                  (B) any other procedures the Secretary determines 
                appropriate.
  (b) Secretary of the Interior.--The Secretary of the Interior shall 
ensure that schools operated or funded by the Department of the 
Interior comply with the regulations promulgated by the Secretary under 
subsection (a).
  (c) Rule of Construction.--Nothing in this section shall be construed 
to authorize the Secretary to promulgate regulations prohibiting the 
use of--
          (1) time out (as defined in section 4(20)); or
          (2) 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--
                  (A) restraints for medical immobilization;
                  (B) adaptive devices or mechanical supports used to 
                achieve proper body position, balance, or alignment to 
                allow greater freedom of mobility than would be 
                possible without the use of such devices or mechanical 
                supports; or
                  (C) vehicle safety restraints when used as intended 
                during the transport of a student in a moving vehicle; 
                or
          (3) handcuffs by school resource officers (as such term is 
        defined in section 4151(11) of the Elementary and Secondary 
        Education Act of 1965 (20 U.S.C. 7161(11)))--
                  (A) in the--
                          (i) case when a student's behavior poses an 
                        imminent danger of physical injury to the 
                        student, school personnel, or others; or
                          (ii) lawful exercise of law enforcement 
                        duties; and
                  (B) less restrictive interventions would be 
                ineffective.

SEC. 6. STATE PLAN AND REPORT REQUIREMENTS AND ENFORCEMENT.

  (a) State Plan.--Not later than 2 years after the Secretary 
promulgates regulations pursuant to section 5(a), and each year 
thereafter, each State educational agency shall submit to the Secretary 
a State plan that provides--
          (1) assurances to the Secretary that the State has in 
        effect--
                  (A) State policies and procedures that meet the 
                minimum standards, including the standards with respect 
                to State-approved crisis intervention training 
                programs, established by regulations promulgated 
                pursuant to section 5(a); and
                  (B) a State mechanism to effectively monitor and 
                enforce the minimum standards;
          (2) a description of the State policies and procedures, 
        including a description of the State-approved crisis 
        intervention training programs in such State; and
          (3) a description of the State plans to ensure school 
        personnel and parents, including private school personnel and 
        parents, are aware of the State policies and procedures.
  (b) Reporting.--
          (1) Reporting requirements.--Not later than 2 years after the 
        date the Secretary promulgates regulations pursuant to section 
        5(a), and each year thereafter, each State educational agency 
        shall (in compliance with the requirements of section 444 of 
        the General Education Provisions Act (commonly known as the 
        ``Family Educational Rights and Privacy Act of 1974'') (20 
        U.S.C. 1232g)) prepare and submit to the Secretary, and make 
        available to the public, a report with respect to each local 
        educational agency, and each school not under the jurisdiction 
        of a local educational agency, located in the same State as 
        such State educational agency that includes the information 
        described in paragraph (2).
          (2) Information requirements.--
                  (A) General information requirements.--The report 
                described in paragraph (1) shall include information 
                on--
                          (i) the total number of incidents in the 
                        preceding full-academic year in which physical 
                        restraint was imposed upon a student; and
                          (ii) the total number of incidents in the 
                        preceding full-academic year in which seclusion 
                        was imposed upon a student.
                  (B) Disaggregation.--
                          (i) General disaggregation requirements.--The 
                        information described in subparagraph (A) shall 
                        be disaggregated by--
                                  (I) the total number of incidents in 
                                which physical restraint or seclusion 
                                was imposed upon a student--
                                          (aa) that resulted in injury;
                                          (bb) that resulted in death; 
                                        and
                                          (cc) in which the school 
                                        personnel imposing physical 
                                        restraint or seclusion were not 
                                        trained and certified as 
                                        described in section 
                                        5(a)(2)(D)(i); and
                                  (II) the demographic characteristics 
                                of all students upon whom physical 
                                restraint or seclusion was imposed, 
                                including--
                                          (aa) the categories 
                                        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));
                                          (bb) age; and
                                          (cc) disability status (which 
                                        has the meaning given the term 
                                        ``individual with a 
                                        disability'' in section 7(20) 
                                        of the Rehabilitation Act of 
                                        1973 (29 U.S.C. 705(20))).
                          (ii) Unduplicated count; exception.--The 
                        disaggregation required under clause (i) 
                        shall--
                                  (I) be carried out in a manner to 
                                ensure an unduplicated count of the--
                                          (aa) total number of 
                                        incidents in the preceding 
                                        full-academic year in which 
                                        physical restraint was imposed 
                                        upon a student; and
                                          (bb) total number of 
                                        incidents in the preceding 
                                        full-academic year in which 
                                        seclusion was imposed upon a 
                                        student; and
                                  (II) not be required in a case in 
                                which the number of students in a 
                                category would reveal personally 
                                identifiable information about an 
                                individual student.
  (c) Enforcement.--
          (1) In general.--
                  (A) Use of remedies.--If a State educational agency 
                fails to comply with subsection (a) or (b), the 
                Secretary shall--
                          (i) withhold, in whole or in part, further 
                        payments under an applicable program (as such 
                        term is defined in section 400(c) of the 
                        General Education Provisions Act (20 U.S.C. 
                        1221)) in accordance with section 455 of such 
                        Act (20 U.S.C. 1234d);
                          (ii) require a State 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; or
                          (iii) issue a complaint to compel compliance 
                        of the State educational agency through a cease 
                        and desist order, in the same manner the 
                        Secretary is authorized to take such action 
                        under section 456 of the General Education 
                        Provisions Act (20 U.S.C. 1234e).
                  (B) Cessation of withholding of funds.--Whenever the 
                Secretary determines (whether by certification or other 
                appropriate evidence) that a State educational agency 
                who is subject to the withholding of payments under 
                subparagraph (A)(i) has cured the failure providing the 
                basis for the withholding of payments, the Secretary 
                shall cease the withholding of payments with respect to 
                the State educational agency under such subparagraph.
          (2) Rule of construction.--Nothing in this subsection shall 
        be construed to limit the Secretary's authority under the 
        General Education Provisions Act (20 U.S.C. 1221 et seq.).

SEC. 7. GRANT AUTHORITY.

  (a) In General.--From the amount appropriated under section 12, the 
Secretary may award grants to State educational agencies to assist the 
agencies in--
          (1) establishing, implementing, and enforcing the policies 
        and procedures to meet the minimum standards established by 
        regulations promulgated by the Secretary pursuant to section 
        5(a);
          (2) improving State and local capacity to collect and analyze 
        data related to physical restraint and seclusion; and
          (3) improving school climate and culture by implementing 
        school-wide positive behavior support approaches.
  (b) Duration of Grant.--A grant under this section shall be awarded 
to a State educational agency for a 3-year period.
  (c) Application.--Each State educational agency desiring a grant 
under this section shall submit an application to the Secretary at such 
time, in such manner, and accompanied by such information as the 
Secretary may require, including information on how the State 
educational agency will target resources to schools and local 
educational agencies in need of assistance related to preventing and 
reducing physical restraint and seclusion.
  (d) Authority to Make Subgrants.--
          (1) In general.--A State educational agency receiving a grant 
        under this section may 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 local educational agency receiving 
        subgrant 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 purchased 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 
        strategies, policies, and procedures to prevent and reduce 
        physical restraint and seclusion in schools, consistent with 
        the minimum standards established by regulations promulgated by 
        the Secretary pursuant to section 5(a).
          (2) Providing professional development, training, and 
        certification for school personnel to meet such standards.
          (3) Carrying out the reporting requirements under section 
        6(b) and analyzing the information included in a report 
        prepared under such section to identify student, school 
        personnel, and school needs related to use of physical 
        restraint and seclusion.
  (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 one or more 
of the following:
          (1) Developing and implementing high-quality professional 
        development and training programs to implement evidence-based 
        systematic approaches to school-wide positive behavior 
        supports, including improving coaching, facilitation, and 
        training capacity for administrators, teachers, specialized 
        instructional support personnel, and other staff.
          (2) Providing technical assistance to develop and implement 
        evidence-based systematic approaches to school-wide positive 
        behavior supports, including technical assistance for data-
        driven decision-making related to behavioral supports and 
        interventions in the classroom.
          (3) Researching, evaluating, and disseminating high-quality 
        evidence-based programs and activities that implement school-
        wide positive behavior supports with fidelity.
          (4) Supporting other local positive behavior support 
        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 and seclusion in the schools 
        located in the State, consistent with the minimum standards 
        established by regulations promulgated by the Secretary 
        pursuant to section 5(a); and
          (2) submit to the Secretary a report on such progress.
  (i) Department of the Interior.--From the amount appropriated under 
section 12, the Secretary may allocate funds to the Secretary of the 
Interior for activities under this section with respect to schools 
operated or funded by the Department of the Interior, under such terms 
as the Secretary of Education may prescribe.

SEC. 8. NATIONAL ASSESSMENT.

  (a) National Assessment.--The Secretary shall carry out a national 
assessment to determine the effectiveness of this Act, which shall 
include--
          (1) analyzing data related to physical restraint and 
        seclusion incidents;
          (2) analyzing the effectiveness of Federal, State, and local 
        efforts to prevent and reduce the number of physical restraint 
        and seclusion incidents in schools;
          (3) identifying the types of programs and services that have 
        demonstrated the greatest effectiveness in preventing and 
        reducing the number of physical restraint and seclusion 
        incidents in schools; and
          (4) identifying evidence-based personnel training models with 
        demonstrated success in preventing and reducing the number of 
        physical restraint and seclusion incidents in schools, 
        including models that emphasize positive behavior supports and 
        de-escalation techniques over physical intervention.
  (b) Report.--The Secretary shall submit to the Committee on Education 
and Labor of the House of Representatives and the Committee on Health, 
Education, Labor, and Pensions of the Senate--
          (1) an interim report that summarizes the preliminary 
        findings of the assessment described in subsection (a) not 
        later than 3 years after the date of enactment of this Act; and
          (2) a final report of the findings of the assessment not 
        later than 5 years after the date of the enactment of this Act.

SEC. 9. PROTECTION AND ADVOCACY SYSTEMS.

  Protection and Advocacy Systems shall have the authority provided 
under section 143 of the Developmental Disabilities Assistance and Bill 
of Rights Act of 2000 (42 U.S.C. 15043) to investigate, monitor, and 
enforce protections provided for students under this Act.

SEC. 10. HEAD START PROGRAMS.

  (a) Regulations.--The Secretary of Health and Human Services, in 
consultation with the Secretary, shall promulgate regulations with 
respect to Head Start agencies administering Head Start programs under 
the Head Start Act (42 U.S.C. 9801 et seq.) that establish requirements 
consistent with--
          (1) the requirements established by regulations promulgated 
        pursuant to section 5(a); and
          (2) the reporting and enforcement requirements described in 
        subsections (b) and (c) of section 6.
  (b) Grant Authority.--From the amount appropriated under section 12, 
the Secretary may allocate funds to the Secretary of Health and Human 
Services to assist the Head Start agencies in establishing, 
implementing, and enforcing policies and procedures to meet the 
requirements established by regulations promulgated pursuant to 
subsection (a).

SEC. 11. LIMITATION OF AUTHORITY.

  (a) In General.--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 or regulation.
  (b) Applicability.--
          (1) 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 appropriated 
        to the Department of Education.
          (2) Home schools.--Nothing in this Act shall be construed 
        to--
                  (A) affect a home school, whether or not a home 
                school is treated as a private school or home school 
                under State law; or
                  (B) consider parents who are schooling a child at 
                home as school personnel.

SEC. 12. AUTHORIZATION OF APPROPRIATIONS.

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

                               I. PURPOSE

    The purpose of H.R. 4247 is to prevent and reduce the use 
of physical restraint and seclusion in public and private 
schools and to promote a positive school culture that ensures 
the safety of all students and personnel.

                          II. COMMITTEE ACTION

Full committee hearing: ``Examining the Abusive and Deadly Use of 
        Seclusion and Restraint in Schools''

    On Tuesday, May 19, 2009, the Committee on Education and 
Labor held a hearing entitled, ``Examining the Abusive and 
Deadly Use of Seclusion and Restraint in Schools.'' The purpose 
of the hearing was to understand the nature and magnitude of 
the practice of abusive restraint and seclusion in public and 
private schools. The hearing focused on 10 cases, each 
resulting in the death or injury of a child, and included 
testimony from parents whose children had been harmed or died 
in restraint and seclusion incidents. The hearing exposed 
hundreds of cases of alleged abuse and at least 20 deaths 
related to the use of these methods, the devastating effects on 
the victims and their families, and the widely divergent state 
and local policies regulating the use of restraint and 
seclusion in schools. Testifying before the full Committee were 
Greg Kutz, Managing Director of Forensic Audits and Special 
Investigations, U.S. Government Accountability Office; Toni 
Price, Foster mother of a child victim who died; Anne Gaydos, 
Mother of a child victim; Elizabeth Hanselman, Assistant 
Superintendent for Special Education and Support Services, 
Springfield, Illinois; and Reece L. Peterson, Ph.D., Professor 
of Special Education, University of Nebraska.

Introduction of the ``Preventing Harmful Restraint and Seclusion in 
        Schools Act''

    On Wednesday, December 9, 2009, Representatives George 
Miller (D-CA) and Cathy McMorris Rodgers (R-WA) introduced H.R. 
4247, the ``Preventing Harmful Restraint and Seclusion in 
Schools Act.'' The bill sets out minimum standards limiting the 
use of restraint and seclusion in schools in order to ensure 
the safety of all students and personnel, and requires states 
to demonstrate that they have established, and will monitor and 
enforce, policies and procedures consistent with the federal 
standards.

Full Committee markup of H.R. 4247

    On Thursday, February 4, 2010, the Committee on Education 
and Labor considered H.R. 4247 in legislative session, and 
reported the bill favorably, as amended, to the House of 
Representatives by a vote of 34-10.
    The Committee adopted an amendment in the nature of a 
substitute offered by Mr. Miller, by voice vote. The amendment 
in the nature of a substitute contains minor technical edits 
and the following changes to H.R. 4247:
           provides for the inclusion of Bureau of 
        Indian Education schools;
           requires state-approved crisis intervention 
        training programs to describe state policies and 
        procedures and to offer techniques for maintaining the 
        safety of school personnel;
           permits school resource officers to use 
        handcuffs in cases of imminent danger or in the lawful 
        exercise of law enforcement duties;
           ensures that private school personnel have 
        equitable access to activities supported by the 
        legislation, and clarifies that private schools that do 
        not receive support from funds appropriated to the 
        Department of Education are excluded from the 
        provisions of this Act; and
           excludes home schools from the provisions of 
        this Act.
    No further amendments were adopted.

                        III. SUMMARY OF THE BILL

    H.R. 4247 establishes minimum safety standards to limit the 
use of restraint and seclusion in public and private early 
childhood, elementary and secondary schools that receive any 
form of support from federal education funds, as well as Head 
Start programs. The bill requires the Secretary of Education to 
promulgate regulations based upon the minimum standards, and 
gives each state two years to provide assurances that the state 
has in effect policies and procedures that meet or exceed the 
minimum standards as well as state mechanisms to effectively 
monitor and enforce such standards.
    The bill prohibits the use of chemical restraints, 
mechanical restraints and physical restraints that restrict 
breathing, and aversive behavioral interventions that 
compromise health and safety.
    H.R. 4247 establishes the conditions under which school 
personnel may implement physical restraint and seclusion, using 
such terms as defined by the Public Health Service Act. The 
bill limits the use of physical restraint and seclusion to 
circumstances when a student's behavior poses an imminent 
danger of physical injury and less restrictive interventions 
would be ineffective, and requires the cessation of the 
intervention when the danger has ended.
    The bill also requires school personnel implementing 
physical restraint or seclusion to be trained and certified, 
and to continuously monitor students when using such 
interventions. The standards provide for emergency 
circumstances when no trained staff are immediately available. 
Under the bill, states and school districts must ensure that a 
sufficient number of personnel are trained and certified to 
meet the specific needs of the student population in each 
school.
    H.R. 4247 prohibits physical restraint or seclusion to be 
written as planned interventions into individual student 
education documents, but does allow for classroom or school 
crisis plans. The standards also require schools to establish 
procedures to be followed after incidents, including parental 
notification.
    Within two years, states must submit assurances to the 
Secretary that the state has in place policies and procedures 
to meet the minimum standards and mechanisms to monitor and 
enforce such standards. States are also required to report the 
number of restraint and seclusion incidents annually. For 
states that do not submit the required assurances or data, the 
Secretary shall withhold funds, require a corrective action 
plan or compel compliance through a cease and desist order.
    H.R. 4247 provides for a discretionary grant program to 
assist states, districts, and schools to establish, implement 
and enforce state standards, to support collection and analysis 
of data, to support staff training, and to improve school 
climate and culture through the implementation of school-wide 
positive behavior supports.
    The bill requires the Secretary to carry out a national 
assessment to determine the effectiveness of the Act in 
preventing and reducing restraint and seclusion incidents in 
schools.
    To carry out the Act, H.R. 4247 authorizes the 
appropriation of such sums as may be necessary for each of 
fiscal years 2011-2015.

                          IV. COMMITTEE VIEWS

Background

    Over the past two decades, a number of government, media 
and advocacy organizations have reported deaths, injuries and 
psychological harm caused by the use of restraint and seclusion 
in a variety of settings. In 1999, the Government 
Accountability Office (GAO) issued a report entitled, ``Mental 
Health: Extent of Risk From Improper Restraint or Seclusion is 
Unknown,'' which concluded that policies covering restraint and 
seclusion vary widely among federal programs, states, and types 
of facilities. Additionally, GAO indicated that ``the 
experience of several states shows that the use of restraint 
and seclusion can be reduced and that patients and staff are 
safer as a result.''\1\
---------------------------------------------------------------------------
    \1\Testimony of Leslie G. Aronovitz, Associate Director, Health 
Financing and Public Health Issues, GAO/HEHS, Hearing, U.S. Senate, 
Committee on Finance, Mental Health: Extent of Risk From Improper 
Restraint or Seclusion is Unknown, October 26, 1999. http://
www.gao.gov/archive/2000/he00026t.pdf. 
---------------------------------------------------------------------------
    In 2002, the Child Welfare League of America (CWLA) 
estimated that between eight and 10 children in the United 
States die each year due to restraint, while many more suffer 
injuries.\2\ In 2003, the President's New Freedom Commission on 
Mental Health reported on significant risks related to the use 
of restraint and seclusion, including serious injury or death, 
psychological harm (especially for individuals with a history 
of trauma), loss of dignity, and other dangers, and recommended 
that restraint or seclusion use be reduced.\3\ In recent years, 
the Substance Abuse and Mental Health Services Administration's 
(SAMHSA) Center for Mental Health Services (CMHS) has 
established initiatives to promote the implementation and 
evaluation of best practice approaches to preventing and 
reducing the use of restraint and seclusion in mental health 
settings, acknowledging the goal of safe outcomes, for both 
individuals served and for staff, that can be met by reducing 
and eliminating restraint and seclusion use.\4\
---------------------------------------------------------------------------
    \2\CWLA 2002
    \3\President's New Freedom Commission on Mental Health. (2003). 
Achieving the promise: Transforming Mental Health Care in America. 
Rockville, MD: U.S. Department of Health and Human Services (DHHS Pub. 
No. SMA-03-3831).
    \4\See http://ars.samhsa.gov/index.asp.
---------------------------------------------------------------------------
    Congress enacted provisions establishing federal 
protections against the improper use of restraint and seclusion 
in facilities receiving federal health funds in the Children's 
Health Act of 2000 (Pub. L. 106-310). The statute protects the 
rights of children and youth in public and private hospitals, 
nursing facilities, intermediate care facilities, non-medical 
community-based facilities, and other health care facilities. 
The Children's Health Act restricts the use of restraint and 
seclusion to emergency circumstances only to ensure the 
immediate physical safety of both children and staff.
    Yet these basic protections do not apply to students in 
educational settings. The Committee believes this is an urgent 
problem that must be addressed before more children are harmed 
by the misuse of restraint and seclusion.

Restraint and seclusion in the schools

    Recent reports have documented tragic outcomes for hundreds 
of students when restraint or seclusion have been used in 
school settings. The National Disability Rights Network issued 
a report in January 2009 detailing allegations of the harmful 
use of these interventions in over two-thirds of the states, 
involving children as young as three years old in both public 
and private school settings.\5\ The Council of Parent Advocates 
and Attorneys chronicled additional cases in a May 2009 report, 
arguing that the use of restraint, seclusion and other aversive 
interventions in schools is ``extensive'' and most often 
applied to children under the age of 11.\6\
---------------------------------------------------------------------------
    \5\National Disability Rights Network. (2009). School is Not 
Supposed to Hurt: Investigative Report on Abusive Restraint and 
Seclusion in Schools. http://www.napas.org/sr/SR-Report.pdf.
    \6\Butler, Jessica. (2009). Unsafe in the Schoolhouse: Abuse of 
Children With Disabilities. COPAA. http://www.copaa.org/pdf/
UnsafeCOPAAMay_27_2009.pdf.
---------------------------------------------------------------------------
    According to the Council for Children with Behavioral 
Disorders (CCBD), ``Historically, a wide variety of injuries 
and deaths have occurred while students are in seclusion 
environments including suicide, electrocution, and self injury 
due to cutting, pounding, and head banging. Additionally 
students have been denied access to toilets, food, or water 
while in seclusion environments.''\7\ CCBD also reports, 
``physical restraints have been in widespread use across most 
human service, medical, juvenile justice, and education agency 
programs for a long period of time. While there have been some 
who have proposed physical restraint as a therapeutic procedure 
for some children, this view has no scientific basis and is 
generally discredited.''\8\
---------------------------------------------------------------------------
    \7\The Council for Children with Behavioral Disorders. (2009). 
CCBD's Position Summary on: The Use of Seclusion in School Settings. 
http://www.ccbd.net/documents/CCBD%20 
Position%20on%20Use%20of%20Seclusion%207-8-09.pdf.
    \8\The Council for Children with Behavioral Disorders. (2009). 
CCBD's Position Summary on: The Use of Physical Restraint Procedures in 
School Settings. http://www.ccbd.net/documents/
CCBD%20Position%20on%20Use%20of%20Restraint%207-8-09.pdf.
---------------------------------------------------------------------------
    On May 19, 2009 the Full Committee heard testimony from 
Greg Kutz, Managing Director of Forensic Audits and Special 
Investigations at GAO, who described shocking and inexcusable 
cases of children subjected to abusive use of restraint or 
seclusion in schools. Mr. Kutz testified:

          Some of the more troubling allegations that we 
        identified include: a 3-year-old boy being strapped to 
        a chair and secluded in a timeout room; a 5-year-old 
        boy having his elbow fractured from a basket hold 
        restraint; a teenage boy repeatedly being locked in a 
        four-by-six timeout room and then being forced to stay 
        there after defecating; a 13-year-old boy hanging 
        himself in a seclusion room with a cord that teachers 
        provided to him to hold up his pants; and a 17-year-old 
        girl choking to death in her own vomit after being held 
        in a facedown restraint.\9\
---------------------------------------------------------------------------
    \9\Testimony, Hearing, U.S. House of Representatives, Committee on 
Education and Labor, Seclusions and Restraints: Selected Cases of Death 
and Abuse at Public and Private Schools and Treatment Centers, May 19, 
2009. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname= 
111_house_hearings&docid=f:49597.pdf.

During the Full Committee hearing, Toni Price testified about 
---------------------------------------------------------------------------
the events leading up to her foster son's death. She stated:

          The morning of his death, Cedric was put on what the 
        teacher called delayed lunch. Because he stopped 
        working about 11 o'clock, this was apparently a common 
        punishment for him . . . At 2:30, he still hadn't been 
        allowed to eat his lunch and got up to leave the 
        classroom. After Cedric attempted to leave the 
        classroom, he refused to sit back down in his chair, so 
        the teacher forced him into his chair and restrained 
        him. She is roughly six feet tall, weighs over 230 
        pounds. Cedric was short. He was a little--he was a 
        little boy. Cedric struggled as he was being held in a 
        chair so the teacher put him face down and sat on him. 
        He struggled and said repeatedly, `I can't breathe.' 
        `If you can talk, if you can speak, you can breathe,' 
        she snapped at him. Shortly after that, he stopped 
        speaking, and he stopped struggling, and he stopped 
        moving.
          My son was dead.\10\
---------------------------------------------------------------------------
    \10\Testimony, Toni Price, Foster mother of child victim who died, 
Hearing, U.S. House of Representatives, Committee on Education and 
Labor, Seclusions and Restraints: Selected Cases of Death and Abuse at 
Public and Private Schools and Treatment Centers, May 19, 2009. http://
frwebgate.access.gpo.gov/cgi-bin/
getdoc.cgi?dbname=111_house_hearings&docid=f:49597.pdf.

Unfortunately, these horrifying incidents are not isolated 
anecdotes. The GAO found ``hundreds of cases of alleged abuse 
and death related to the use of these methods on school 
children.'' Yet GAO ``could not find a single Web site, federal 
agency, or other entity that collects information on the use of 
these methods or the extent of their alleged abuse.''\11\ In 
the few states that do collect data in schools, tens of 
thousands of restraint and seclusion incidents are reported 
annually, in both public and private schools. For example, in 
Texas and California alone, over 33,000 instances were reported 
during the 2007-08 academic year.\12\ Previous government 
reports have acknowledged that due to the lack of consistent 
reporting requirements, data on restraint and seclusion is 
likely to be understated.\13\
---------------------------------------------------------------------------
    \11\Testimony of Gregory D. Kutz, Managing Director of Forensic 
Audits and Special Investigations, Hearing, U.S. House of 
Representatives, Committee on Education and Labor, Seclusions and 
Restraints: Selected Cases of Death and Abuse at Public and Private 
Schools and Treatment Centers (GAO-09-719T), May 19, 2009. http://
www.gao.gov/new.items/d09719t.pdf.
    \12\Testimony of Gregory D. Kutz, Managing Director of Forensic 
Audits and Special Investigations, Hearing, U.S. House of 
Representatives, Committee on Education and Labor, Seclusions and 
Restraints: Selected Cases of Death and Abuse at Public and Private 
Schools and Treatment Centers (GAO-09-719T), May 19, 2009. http://
www.gao.gov/new.items/d09719t.pdf.
    \13\Testimony of Leslie G. Aronovitz, Associate Director, Health 
Financing and Public Health Issues, GAO/HEHS, Hearing, U.S. Senate, 
Committee on Finance, Mental Health: Extent of Risk From Improper 
Restraint or Seclusion is Unknown, October 26, 1999. http://
www.gao.gov/archive/2000/he00026t.pdf.
---------------------------------------------------------------------------
    Parents often do not know that their schoolchildren are 
being subjected to these interventions. According to the GAO, 
only 19 states require parents to be notified after restraints 
have been used. Regulations governing parental notification 
related to seclusion are even less evident. One recent survey 
reported that 66% of parents whose children had been subjected 
to seclusion or restraint reported that they were rarely or 
never informed when these interventions had been used.\14\
---------------------------------------------------------------------------
    \14\Marshall, D.S., Smith, C.A., Trader, B.R., & Westling, D.L., 
(2010). Research and Practice for Persons with Severe Disabilities, 
Vol. ( ). TASH.
---------------------------------------------------------------------------
    The GAO found that children, most often children with 
disabilities, are subjected to seclusion and restraint at much 
higher rates than adults, and are at greater risk of injury as 
a result of these practices. Very young children are often at 
risk; recent data indicates that children under the age of 12 
are restrained or secluded at substantially higher rates than 
any other age group.\15\ Even when no physical injury is 
sustained, individuals can be severely traumatized during 
restraint. Additionally, GAO has previously testified that 
physical restraint is often dangerous because such incidents 
may involve physical struggling, pressure on the chest, or 
other interruptions in breathing.\16\
---------------------------------------------------------------------------
    \15\(2009). National public rates--Age stratification report. 
Behavioral Healthcare Performance Measurement System. Alexandria, VA: 
National Association of State Mental Health Program Directors Research 
Institute Inc.
    \16\Testimony of Leslie G. Aronovitz, Associate Director, Health 
Financing and Public Health Issues, GAO/HEHS, Hearing, U.S. Senate, 
Committee on Finance, Mental Health: Extent of Risk From Improper 
Restraint or Seclusion is Unknown, October 26, 1999. http://
www.gao.gov/archive/2000/he00026t.pdf.
---------------------------------------------------------------------------
    Students are not alone in being harmed during physical 
restraint; research shows that staff are also often injured 
when restraining children. In an ergonomics injury survey 
conducted by New York State United Teachers in 2000, the number 
one cause of injury to special education teachers and aides 
involved the restraint of students.\17\ Staff injury rates in 
mental health settings where seclusion and restraint are used 
have been found to be higher than those in high-risk industries 
such as lumber, construction, and mining.\18\ Mental health 
professionals argue ``. . . there is no safe restraint, and 
that skillful de-escalation (and prevention of a restraint) are 
the safest alternatives available to staff members.''\19\
---------------------------------------------------------------------------
    \17\Ergo-Related Injury Survey Report, November 2000, New York 
State United Teachers Research and Educational Services.
    \18\Hunter, M.E. & Love, C.C.. (1996). Violence in public sector 
psychiatric hospitals. Journal of Psychosocial Nursing, 34(5): 30-34.; 
Weiss, E.M., et al. (1998) Deadly restraint: A nationwide pattern of 
death. The Hartford Courant, p. A1.
    \19\Mohr, Wanda K. (2008). There's No Such Thing as a Safe 
Restraint. Gannett Healthcare Group. http://news.nurse.com/apps/
pbcs.dll/article?AID=/20080310/NJ02/80305005.
---------------------------------------------------------------------------

Current protections

    While the Children's Health Act provides federal 
protections for children in health settings, no federal laws 
restrict public or private schools in their use of restraint 
and seclusion, and state laws vary greatly in this respect. The 
GAO reported that 19 states have no laws or regulations 
whatsoever. Among states that do have statewide policies, there 
is significant variation: for example, seven states regulate 
only restraint but not seclusion; two states have rules on 
seclusion but not restraint; 17 states require that staff 
receive training before being permitted to restrain children; 
and eight states specifically prohibit the use of restraints 
that impede a child's ability to breathe.\20\
---------------------------------------------------------------------------
    \20\Testimony of Gregory D. Kutz, Managing Director of Forensic 
Audits and Special Investigations, Hearing, U.S. House of 
Representatives, Committee on Education and Labor, Seclusions and 
Restraints: Selected Cases of Death and Abuse at Public and Private 
Schools and Treatment Centers (GAO-09-719T), May 19, 2009. http://
www.gao.gov/new.items/d09719t.pdf.
---------------------------------------------------------------------------
    State and local policies also vary in their applicability, 
limiting or allowing restraint or seclusion only for children 
with disabilities, or in certain circumstances. In many 
jurisdictions, the use of restraint or seclusion for 
discipline, to force compliance, to prevent property damage, or 
for therapeutic purposes is not prohibited, despite the 
acknowledged dangers of these techniques, the lack of 
therapeutic benefit,\21\ and research demonstrating that use of 
restraint and seclusion often exacerbates the behaviors that 
staff are trying to eliminate.\22\
---------------------------------------------------------------------------
    \21\(2009). National executive training institute curriculum for 
the creation of violence-free, coercion-free treatment settings and the 
reduction of seclusion and restraint, 7th edition. Alexandria, VA: 
National Association of State Mental Health Program Directors, Office 
of Technical Assistance.
    \22\Ellis, J & Magee, S.K. (2001). The detrimental effects of 
physical restraint as a consequence for inappropriate classroom 
behavior. Journal of Applied Behavioral Analysis, 34(4): 501-504; 
Jones, R.J., & Timbers, G.D. (2002). An analysis of the restraint event 
and its behavioral effects on clients and staff. Reclaiming Children 
and Youth, 11, 37-41.
---------------------------------------------------------------------------
    The GAO concluded that the hundreds of allegations of 
abusive use of restraint and seclusion in public and private 
schools across the nation ``raise serious issues for a 
significant number of children, families, and those entrusted 
with their education and care.''\23\ The GAO investigation, and 
the independent reports and research findings related to the 
misuse of restraint and seclusion in the schools, indicate an 
urgent need for federal action. Children are protected by 
federal law from the abusive application of these techniques in 
other settings. The Committee expects that children should, at 
a minimum, have similar protections in our nation's schools.
---------------------------------------------------------------------------
    \23\Testimony of Gregory D. Kutz, Managing Director of Forensic 
Audits and Special Investigations, Hearing, U.S. House of 
Representatives, Committee on Education and Labor, Seclusions and 
Restraints: Selected Cases of Death and Abuse at Public and Private 
Schools and Treatment Centers (GAO-09-719T), May 19, 2009. http://
www.gao.gov/new.items/d09719t.pdf.
---------------------------------------------------------------------------
    On May 20, 2009, Secretary of Education Arne Duncan 
testified before the Committee, and expressed concern ``for the 
very disturbing and troubling information that came out of your 
hearing yesterday on restraints and seclusion.''\24\ The 
Secretary subsequently sent a letter requesting that each state 
``develop or review and, if appropriate, revise your State 
policies and guidelines to ensure that every student in every 
school under your jurisdiction is safe and protected from being 
unnecessarily or inappropriately restrained or secluded.''\25\ 
In the coming weeks, the Department of Education intends to 
post on their website a description of the relevant state laws, 
regulations, policies, and guidance based upon states' 
responses to this request. The Committee believes that, despite 
some recent state and local efforts to improve guidelines and 
policies related to restraint and seclusion, minimum federal 
standards are necessary to keep students safe.
---------------------------------------------------------------------------
    \24\Testimony of Secretary of Education Arne Duncan, Hearing, U.S. 
House of Representatives, Committee on Education and Labor, The Obama 
Administration's Education Agenda, May 20, 2009. http://
frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_house_hearings 
&docid=f:49598.wais.
    \25\Letter to Chief State School Officers, July 31, 2009, Secretary 
Arne Duncan http://www2.ed.gov/policy/elsec/guid/secletter/090731.html.
---------------------------------------------------------------------------

Minimum federal standards

    The Committee believes that protecting the safety of both 
children and personnel in public and private schools is 
essential and urgent. Due to the lack of clear state standards 
and guidelines, children across the country have experienced 
serious harm, and even death, when being restrained or secluded 
in educational settings. Many schools do not have adequate 
guidance from states in order to establish policies and 
procedures to ensure that staff, families and students have a 
clear understanding of safe, positive and appropriate responses 
to behavioral challenges. Some schools continue to use 
restraint or seclusion for discipline or convenience, yet the 
use of these interventions for such purposes is illegal in 
other settings receiving federal health funds. The GAO 
investigation and other reports suggest that staff often do not 
have the training and support they need to manage situations 
involving undesirable behaviors. Parents are not adequately 
informed regarding the use of restraint and seclusion on their 
children; often parents have not provided consent nor are they 
notified after the fact. Data reporting and transparency 
related to the use of restraint and seclusion in the schools is 
inconsistent and rarely used to improve school practices.
    H.R. 4247 addresses these important issues by establishing 
basic minimum safety standards related to the use of restraint 
and seclusion in public and private schools that are supported 
by federal education resources. The Committee believes it is 
critical to encourage the prevention, reduction and elimination 
of these interventions. Within 180 days after enactment of H.R. 
4247, the Secretary of Education must issue regulations 
implementing the minimum standards. The bill requires states to 
subsequently establish policies and procedures that meet or 
exceed the minimum standards within two years, requires data 
reporting to better inform future practice and identify 
problems, and provides for grants to assist states, districts 
and schools to implement, monitor and enforce the policies. The 
Committee believes this balanced approach places necessary 
limits on restraint and seclusion consistent with other federal 
laws, while also providing state flexibility in implementation 
and federal support for schools and districts to utilize 
evidence-based practices.

Prohibitions

    The Committee is disturbed by reports of children tied to 
chairs, held in place by duct tape, inappropriately strapped to 
therapeutic equipment, or otherwise restricted in their 
movements by mechanical means. As such, H.R. 4247 prohibits the 
use of mechanical restraints in schools, other than devices 
used for the specific, intended and approved safety or 
therapeutic purpose for which they are designed, including 
medical immobilization. The Committee does not expect that 
mechanical restraints appropriately used for medical 
immobilization would include mechanical restraints used solely 
for behavior modification. The bill also specifically ensures 
that school resource officers may use handcuffs to mechanically 
restrain students in emergencies or in the exercise of law 
enforcement duties.
    The Committee believes the use of chemical restraints 
(controlling behavior by using medications in any manner 
inconsistent with a doctor's prescription) is inappropriate and 
illegal. The bill prohibits chemical restraint in schools.
    According to the GAO, many of the restraint deaths have 
involved the restriction of the victim's breathing. A 
substantial body of evidence has demonstrated the dangers of 
restraint-related positional asphyxia (when a person is forced 
into a position that does not allow proper and effective 
breathing).\26\ While the Committee does not intend to endorse 
specific approaches to physical restraint, it is important to 
note that many behavioral health experts believe prone (face-
down) restraints should be banned due to the high risk of death 
or serious injury. The GAO reports that currently eight states 
specifically prohibit the use of prone restraints or restraints 
that impede a child's ability to breathe.\27\ It is the 
Committee's expectation that any physical restraint or physical 
escort that restricts breathing be prohibited, which may 
include limitations on certain restraint positions.
---------------------------------------------------------------------------
    \26\Colorado Association of Family and Children's Agencies, (2006) 
The Use of Prone Restraints in Psychiatric Residential Treatment 
Facilities: White Paper. Denver, CO. http://www.cafca.net/images/
stories/publications/ProneRestraintPaper.pdf.
    \27\Testimony of Gregory D. Kutz, Managing Director of Forensic 
Audits and Special Investigations, Hearing, U.S. House of 
Representatives, Committee on Education and Labor, Seclusions and 
Restraints: Selected Cases of Death and Abuse at Public and Private 
Schools and Treatment Centers (GAO-09-719T), May 19, 2009. http://
www.gao.gov/new.items/d09719t.pdf.
---------------------------------------------------------------------------
    The Committee is concerned about the use of aversive 
behavioral interventions that compromise health and safety. 
Examples of such interventions used for the purpose of reducing 
maladaptive behavior may include, but are not limited to, 
contingent electric shock, noxious stimuli in the form of 
sprays, tastes, inhalants or other substances, and the 
intentional withholding of sleep, shelter, bedding, bathroom 
facilities, clothing, nutrition or hydration. H.R. 4247 
prohibits the use of aversive behavioral interventions that 
compromise health and safety in schools.

Safe and appropriate use of physical restraint and seclusion

    The Committee believes the use of physical restraint and 
seclusion in public and private schools should be significantly 
limited, implemented in circumstances involving imminent danger 
ofphysical injury and only until the danger has passed; only 
when no other effective options are available to stop such injury; and 
when applied by trained staff. H.R. 4247 utilizes many of the standards 
and definitions established under the Children's Health Act of 2000. At 
the same time, the Committee intends to acknowledge the differences 
between the school environment and health facilities.
    Based upon similar requirements in other settings, H.R. 
4247 requires continuous monitoring of any student being 
restrained or secluded. The Committee believes that face-to-
face monitoring is an important safeguard to ensure student 
health and safety during physical restraint or seclusion, yet 
understands that sometimes personnel will be unable to safely 
monitor students face-to-face. In these rare circumstances, 
school personnel must maintain direct visual contact with the 
student through another safe means, for example, through a 
window when a student is in seclusion. The Committee does not 
consider video monitoring to offer direct visual contact.
    H.R. 4247 limits the use of physical restraint (defined as 
a personal restriction that immobilizes or reduces the ability 
on an individual to move his or her arms, legs or head freely) 
to situations involving a student whose behavior poses an 
imminent danger of physical injury. The GAO report revealed a 
number of circumstances in which staff physically restrained 
students by sitting on the child's torso.\28\ The Committee 
anticipates that situations immobilizing the torso would also 
be considered physical restraint.
---------------------------------------------------------------------------
    \28\Testimony of Gregory D. Kutz, Managing Director of Forensic 
Audits and Special Investigations, Hearing, U.S. House of 
Representatives, Committee on Education and Labor, Seclusions and 
Restraints: Selected Cases of Death and Abuse at Public and Private 
Schools and Treatment Centers (GAO-09-719T), May 19, 2009. http://
www.gao.gov/new.items/d09719t.pdf.
---------------------------------------------------------------------------
    The Committee believes that as part of a safe, positive, 
productive learning environment for all students, school 
personnel may have reasonable, temporary physical contact with 
students that is not considered physical restraint. Physical 
restraint does not include temporary physical prompts such as a 
brief, light touch to encourage a response, physically 
escorting a child safely from one area to another or away from 
danger without force or physical coercion, or briefly holding 
or hugging a student without force or physical coercion to calm 
or comfort the student.
    The Committee understands the importance of ``time out'' as 
a behavior management technique that provides an opportunity 
for students to calm and regain self-control, separated from 
other students in an area from which the student is not 
physically prevented from leaving. For example, asking a 
student to step into the hallway for a short period of time, or 
visit a quiet space in the classroom, would be considered 
``time out.'' The Committee believes that, distinct from 
seclusion, ``time out'' can be an effective and appropriate 
approach for children experiencing challenging behaviors that 
are not posing an imminent danger of physical injury. As such, 
H.R. 4247 explicitly prevents the Secretary from prohibiting 
the use of time out (as defined in the Public Health Service 
Act), while limiting the use of isolated seclusion to crisis 
situations. The Committee believes that use of seclusion, 
including any involuntary confinement of a student alone in a 
room or an area from which the student is physically prevented 
from leaving, should be restricted to only those circumstances 
in which it is absolutely necessary to stop imminent danger of 
physical injury. The Committee also believes that rooms used 
for seclusion should be safe, ventilated, lit, free of 
dangerous fixtures, and meet all applicable building and fire 
codes.
    Consistent with the intent to establish similar 
requirements and restrictions on the use of restraint and 
seclusion across settings, the Committee believes that the 
Secretary of Education should consider the regulations 
implementing the Children's Health Act (42 CFR 483.352) when 
issuing regulations concerning the definitions of seclusion and 
time out.

State-approved crisis intervention training programs

    In the GAO investigation, many cases of student injury or 
death involved staff who had not been trained in crisis 
prevention and the safe use of restraint and seclusion.\29\ The 
Committee believes that staff who may be expected to respond to 
behavioral crises using these interventions should be trained 
and certified prior to subjecting students to restraint or 
seclusion, similar to requirements in other settings. 
Therefore, H.R. 4247 requires physical restraint or seclusion 
be imposed only by school personnel trained and certified by a 
state-approved crisis intervention training program. The 
Committee also recognizes that there may be rare and clearly 
unavoidable circumstances when trained staff may not be 
immediately available and other staff may need to intervene. 
For example, a teacher on a field trip might need to use 
physical intervention to stop a young child from running into 
traffic, or an administrator could need to step in and restrain 
a student while breaking up a fight. The legislation 
anticipates these situations and provides a narrow exception to 
the training requirement for these emergencies.
---------------------------------------------------------------------------
    \29\Testimony of Gregory D. Kutz, Managing Director of Forensic 
Audits and Special Investigations, Hearing, U.S. House of 
Representatives, Committee on Education and Labor, Seclusions and 
Restraints: Selected Cases of Death and Abuse at Public and Private 
Schools and Treatment Centers (GAO-09-719T), May 19, 2009. http://
www.gao.gov/new.items/d09719t.pdf.
---------------------------------------------------------------------------
    H.R. 4247 requires states to approve crisis intervention 
training programs that provide training and certification in 
evidence-based techniques for preventing and safely 
implementing restraint and seclusion in the schools. The 
Committee anticipates that states would benefit from engaging a 
variety of stakeholders, including individuals with 
disabilities, parents, educators, private school officials, and 
behavioral health experts, when considering appropriate crisis 
intervention training programs for approval. It is the 
Committee's expectation that such training should also 
acknowledge the linguistic and cultural diversity of students 
and staff. The bill also directs states and districts to ensure 
that a sufficient number of school personnel are trained and 
certified by state-approved crisis intervention training 
programs to meet the needs of the particular population in each 
school. The Committee expects that states will consult with 
private school officials in a timely and meaningful manner to 
determine the training needs of private schools, and to 
establish processes for ensuring a sufficient number of private 
school staff are trained inorder to meet student needs. The 
Committee also believes that each state, district and school is unique 
in its staffing needs and population of students, and anticipates that 
the number of trained staff should reflect these differences. Public 
and private schools that do not utilize restraint or seclusion should 
not need to have any staff trained and certified by a state-approved 
crisis intervention training program.

Crisis intervention planning for individual students

    The Committee believes that the use of both physical 
restraint and seclusion must be limited to emergency 
circumstances to stop imminent danger of physical injury, and 
only when there are no other effective alternatives. The 
Committee is also concerned about allegations that parents are 
being pressured to provide consent to the use of restraint and 
seclusion as a precondition to an educational placement or 
access to a program. Therefore, H.R. 4247 prohibits the 
inclusion of these techniques as planned interventions to be 
written into student education plans (including Individualized 
Education Programs (IEPs) and Behavior Intervention Plans 
(BIPs)) as routine or normal programming.
    Under the Individuals with Disabilities Education Act, the 
IEP is intended to provide a student with a free appropriate 
public education and to identify services designed to enable 
students with disabilities to make educational progress in both 
academic achievement and functional performance.\30\ Such 
services must be based on peer-reviewed research to the extent 
practicable.\31\ The Committee believes that the use of 
restraint and seclusion is not a program or service that meets 
this standard, nor do these interventions constitute a 
treatment providing educational benefit. The Committee intends 
that student education plans and programs, including IEPs and 
BIPs developed by IEP teams including parents, should include 
positive behavioral supports and services to prevent the use of 
restraint or seclusion. Additionally, the Committee believes 
IEP teams, including parents, may agree upon restrictions 
against the use of restraint and seclusion as crisis 
interventions in an IEP or BIP, particularly when a student may 
be at added risk of negative consequences due to disability or 
physical or mental health conditions. The Committee also 
believes IEP teams, including parents, may agree upon written 
trauma-informed care plans, as appropriate, describing the 
individual student needs related to crisis situations due to 
the nature of the student's disability or prior trauma.
---------------------------------------------------------------------------
    \30\20 U.S.C. 1414(d).
    \31\34 CFR Sec. 300.320(a)(4).
---------------------------------------------------------------------------
    The Committee also believes that for a very small number of 
students with an extensive history of violent behavior that has 
created an imminent danger of physical injury in school, 
individual crisis planning with educators and parents is 
appropriate. The Committee anticipates that the Secretary will 
utilize the regulatory process to establish a distinction 
between planned interventions and crisis interventions 
consistent with the standards established under the bill, to 
include the extremely limited circumstances under which 
physical restraint or seclusion may be written as a crisis 
intervention in an individual student plan, including IEPs and 
BIPs, requiring informed consent from parents. The Committee 
recognizes that such crisis planning should include, at a 
minimum, a review of the educational and functional needs of 
the student, an analysis of antecedents preceding any violent 
behavior, and a functional behavior assessment conducted by a 
qualified team of professionals, and that parent involvement 
and informed consent is a critical component of crisis 
planning.
    The Committee expects that school personnel will rely on 
district, school and classroom safety plans consistent with the 
minimum standards and developed at the local level with 
appropriate stakeholders that establish procedures to be used 
when a student's behavior poses an imminent danger of physical 
harm.

Procedures following restraint and seclusion

    H.R. 4247 requires schools to establish procedures to be 
followed after each incident involving the imposition of 
restraint or seclusion, including written notification to 
parents. The Committee believes it is critical that parents are 
aware of each use of these interventions. Further, the 
Committee encourages schools to consider additional procedures 
to enhance parental involvement as well as assist in prevention 
planning and the identification of antecedents leading up to 
the crisis event, such as debriefing sessions with staff and 
parents after restraint or seclusion incidents.

Grant authority

    The Committee believes that some states, districts and 
schools may need assistance in implementing efforts to prevent 
and reduce restraint and seclusion in schools. H.R. 4247 
provides for grants to support implementation of the standards, 
professional development and training, and data reporting. 
Additionally, the Committee believes expenditures related to 
these efforts to be an allowable use of certain federal 
education funds, such as professional development and training 
resources.
    H.R. 4247 requires local educational agencies receiving 
subgrant funds to work with private school officials to ensure 
that private school personnel can participate equitably in 
activities funded by the grants. The Committee expects that 
private schools will be able to negotiate with state and local 
educational agencies to establish processes for participation 
in training and other grant activities, to help ensure that 
students in both public and private schools are protected from 
the misuse of restraint and seclusion.

Positive Behavior Supports

    The Committee believes the implementation of Positive 
Behavior Supports (PBS) can assist in the prevention and 
reduction of the use of harmful restraint and seclusion in 
schools, and education resources should be invested in such 
efforts. In the discretionary grant authority, H.R.4247 
provides for such investment. The Committee expects that PBS should not 
be used to diminish non-harmful behaviors related to a student's 
disability that do not interfere with the learning environment. For 
example, utilizing PBS to diminish the reoccurrence of self-injurious 
behavior, an objectively harmful behavior which interferes with student 
learning, is consistent with the purpose of this legislation, but 
utilizing PBS to stop hand-flapping or other self-stimulatory behavior, 
which is not harmful and stems from a child's disability, would be 
inconsistent with the purpose of this legislation.

Reporting

    The GAO investigation revealed the lack of comprehensive 
data and information collection related to the use of restraint 
and seclusion in the schools. H.R. 4247 requires states to 
report on the number of restraint and seclusion incidents 
annually. The Committee hopes that improved data collection and 
analysis can contribute to the prevention, reduction and 
elimination of restraint and seclusion in the schools. It is 
the Committee's intent that public and private schools that do 
not have any restraint or seclusion incidents in a given year 
will not have to submit a report that year.

Enforcement

    The Committee believes states and districts should be 
primarily responsible for monitoring and enforcing the minimum 
standards, so the bill gives states two years to provide the 
Secretary with assurances that such mechanisms are in place. 
For states that do not comply, H.R. 4247 provides the Secretary 
authority to utilize remedies established under the General 
Education Provisions Act or to require a State Educational 
Agency to implement a corrective plan of action.
    Additionally, Section 9 of H.R. 4247 references Protection 
and Advocacy Systems. The Committee intends that Section 9 is 
not an expansion of Protection and Advocacy authority, but a 
reiteration of existing authorities under 42 U.S.C. Section 
15041 et. seq., 42 U.S.C. Section 10801 et. seq., 29 U.S.C. 
Section 794e et. seq., and 42 U.S.C. Section 300d-53 et. seq. 
to monitor, investigate, and enforce the provisions of this 
Act.

                     V. SECTION-BY-SECTION ANALYSIS

    This section-by-section analysis is based upon the bill as 
amended with the Amendment in the Nature of a Substitute that 
was adopted by the Committee.
    Sec. 1. Short title. Provides that the short title is the 
``Preventing Abusive Restraint and Seclusion in Schools Act of 
2009.''
    Sec. 2. Findings. Acknowledges the physical and emotional 
risks of physical restraint and seclusion in the educational 
setting, and acknowledges the right of all children to be 
supported in, as well as school personnel to work in, a safe 
and healthy educational environment.
    Sec. 3. Purposes. Indicates the purpose of the Act is to 
prevent and reduce physical restraint or seclusion in schools, 
ensure the safety of students and staff, protect students from 
physical or mental abuse, and support policies and procedures 
that promote a positive educational environment. Also to 
provide assistance to States, local educational agencies and 
schools for staff training, data collection and implementing 
evidence-based models.
    Sec. 4. Definitions. Includes definitions of chemical 
restraint, educational service agency, elementary school, local 
educational agency, mechanical restraint, parent, physical 
escort, physical restraint, positive behavior supports, 
protection and advocacy system, school, school personnel, 
secondary school, seclusion, secretary, state-approved crisis 
intervention training program, state, state educational agency, 
student, time out.
    Sec. 5. Minimum standards and rules of construction. 
Provides for minimum safety standards related to the use of 
physical restraint and seclusion in schools, and requires the 
Secretary of Education to issue regulations establishing such 
standards. The standards prohibit the use of mechanical 
restraints, chemical restraints, physical restraint or escort 
that restricts breathing, and aversive behavioral interventions 
that compromise health and safety. The standards limit the 
imposition of physical restraint or seclusion, require states 
to ensure that a sufficient number of personnel are trained to 
meet students' needs, and require parental notification after 
seclusion or restraint have been imposed upon a student. The 
standards also prohibit inclusion of physical restraint or 
seclusion as planned interventions written into student 
education plans or programs.
    Sec. 6. State plan and report requirements and enforcement. 
Requires States to submit to the Secretary their policies and 
procedures that are in effect and are consistent with the 
minimum federal standards. Requires States to report 
disaggregated data on restraint and seclusion incidents. 
Provides for enforcement of the standards through withholding 
of funds, a corrective plan of action or a cease and desist 
order.
    Sec. 7. Grant authority. Provides the Secretary authority 
to award grants to States to support activities in order to 
meet the minimum standards established in federal regulations, 
to collect data, and to implement school-wide positive behavior 
support approaches. Provides for the conditions of grants and 
subgrants, including required and allowable activities and 
reporting.
    Sec. 8. National assessment. Requires the Secretary to 
conduct a national assessment to determine the effectiveness of 
the Act and submit a report to Congress.
    Sec. 9. Protection and advocacy systems. Reinforces 
Protection and Advocacy Systems authority to investigate, 
monitor and enforce protections provided under the Act.
    Sec. 10. Head Start programs. Requires the Secretary of 
Health and Human Services to promulgate regulations for Head 
Start agencies that establish standards consistent with this 
Act.
    Sec. 11. Limitation of authority. Clarifies that the Act 
does not preempt rights or remedies available under Federal or 
State law or regulation. Provides non-applicability for private 
schools that do not receive federal support and for 
homeschools.
    Sec. 12. Authorization of appropriations. This section 
authorizes such sums for 2011 and four succeeding years.

                     VI. EXPLANATION OF AMENDMENTS

    The Amendment in the Nature of a Substitute is explained in 
the body of this report.

           VII. APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act, requires a description of the application 
of this bill to the legislative branch. H.R. 4247 aims to 
prevent and reduce the use of physical restraint and seclusion 
in public and private schools and to promote a positive school 
culture that ensures the safety of all students and personnel, 
and has no direct impact on the legislative branch.

                    VIII. UNFUNDED MANDATE STATEMENT

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. H.R. 4247 contains no intergovernmental or private-
sector mandates as defined by the Unfunded Mandates Reform Act 
(UMRA).

                         IX. EARMARK STATEMENT

    H.R. 4247 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clauses 9(d), 9(e) or 9(f) of rule XXI of the House of 
Representatives.

                              X. ROLL CALL


    XI. STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE 
                               COMMITTEE

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

            XII. NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following estimate for H.R. 4247 from the Director of the 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 12, 2010.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4247, the 
Preventing Harmful Restraint and Seclusion in Schools Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Justin 
Humphrey.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                          Director.
    Enclosure.

H.R. 4247--Preventing Harmful Restraint and Seclusion in Schools Act

    H.R. 4247 would authorize the appropriation of such sums as 
may be necessary for fiscal years 2011 through 2015 to award 
grants to states to assist them in establishing and 
implementing policies and collecting and analyzing data related 
to the physical restraint or seclusion of elementary and 
secondary school students. Under the General Education 
Provisions Act, these authorizations automatically would be 
extended one year to 2016.
    As shown in the following table, based on the funding 
levels for similar programs at the U.S. Department of 
Education, CBO estimates that implementing H.R. 4247 would 
increase discretionary spending by about $250 million over the 
2011-2015 period. For this estimate, CBO projects that 
approximately $340 million would be appropriated over that 
period and that outlays would follow the historical spending 
pattern for similar programs. The costs of this legislation 
fall within budget function 500 (education, training, 
employment and social services). Enacting the bill would not 
affect direct spending or revenues.

----------------------------------------------------------------------------------------------------------------
                                                                 By fiscal year, in millions of dollars--
                                                         -------------------------------------------------------
                                                            2011     2012     2013     2014     2015   2011-2015
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level...........................       66       67       67       68       69       337
Estimated Outlays.......................................        2       51       65       67       68       254
----------------------------------------------------------------------------------------------------------------

    H.R. 4247 contains no intergovernmental or private sector 
mandates, as defined in the Unfunded Mandates Reform Act. State 
and local governments could benefit from grants provided by the 
bill. Any costs to state and local governments that result from 
participation in the grant programs would be incurred 
voluntarily as conditions of federal assistance.
    The CBO staff contact for this estimate is Justin Humphrey. 
This estimate was approved by Holly Harvey, Deputy Assistant 
Director, Budget Analysis Division.

      XIII. STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    In accordance with clause 3(c) of rule XIII of the Rules of 
the House of Representatives, the goal of H.R. 4247 is to 
prevent and reduce the use of physical restraint and seclusion 
in public and private schools and to promote a positive school 
culture that ensures the safety of all students and personnel. 
The Committee expects the Department of Education to comply 
with H.R. 4247 and implement the changes to the law in 
accordance with these stated goals.

                XIV. CONSTITUTIONAL AUTHORITY STATEMENT

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress in the 
Constitution to enact the law proposed by H.R. 4247. The 
Committee believes that the amendments made by this bill are 
within Congress' authority under Article I, section 8, clause 1 
of the U.S. Constitution.

                         XV. COMMITTEE ESTIMATE

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 4247. 
However, clause 3(d)(3)(B) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

       XVI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    Clause 3(e) of rule XIII of the Rules of the House of 
Representatives requires a showing of changes in existing law 
made by the bill, as reported, when amending or repealing an 
existing statute or part thereof. Because the bill does not 
amend or repeal an existing statute or part thereof, no 
comparative print is required here.

                     XVII. COMMITTEE CORRESPONDENCE

    None.

                            ADDITIONAL VIEWS

Introduction
    Committee Republicans believe all students should be able 
to learn in a safe, productive, and positive environment. 
Teachers, principals, and other school personnel have a 
responsibility to ensure this environment is maintained at all 
times. Even in situations in which students have serious 
problems that pose a threat to themselves and others, it is 
vitally important that school personnel use interventions and 
supports that are both physically and emotionally safe for the 
child. Sadly, efforts to maintain order in the classroom have 
sometimes led school personnel to misuse certain techniques 
resulting in the abuse or even death of students.
    The legislation presented to the Committee in H.R. 4247 
posits that the solution to the misuse of seclusion and 
restraint techniques lies in the hands of the Secretary of 
Education in Washington, D.C. Republicans, however, believe 
Washington does not always know best, and education policy is 
best handled at the state and local levels. We praise the work 
of school personnel who oftentimes work under very challenging 
circumstances. We commend those states and local areas that 
have passed comprehensive laws restricting the misuse of 
restraints and seclusion rooms. At the same time, we condemn 
those teachers and classroom aides who have been found guilty 
of child abuse and neglect, which has resulted in the injury or 
death of school-age children; their actions have no place in 
public or private school settings.
    In determining whether the federal government, acting 
through the U.S. Department of Education, should begin the 
unprecedented step of regulating the use of restraint 
techniques and seclusion rooms in public and private schools, 
Committee Republicans raise four substantive concerns with H.R. 
4247, the Preventing Harmful Restraint and Seclusion in Schools 
Act:
Lack of reliable data on the use of restraint and seclusion in public 
        and private schools
    First, Committee Republicans believe H.R. 4247 fails to 
recognize that the federal government, state educational 
agencies, local educational agencies, or schools lack any type 
of reliable data on the prevalence of harmful restraint 
techniques in public and private schools and whether they 
result in child abuse. This fact is indisputable. Gregory D. 
Kutz, Managing Director of Forensic Audits and Special 
Investigations for the U.S. Government Accountability Office, 
offered testimony before the Committee that the GAO ``could not 
find a single Web site, federal agency, or other entity that 
collects information on the use of these methods or the extent 
of their alleged abuse'' (emphasis added).\1\ The Democratic 
majority in the Committee Report accompanying H.R. 4247 also 
uses this startling statistic to make the case for action on 
federal legislation regulating the use of restraint and 
seclusion techniques, although a more appropriate precursor to 
taking any federal legislative action, would be to collect 
information from states in an effort to determine the problem's 
prevalence first.
---------------------------------------------------------------------------
    \1\See ``Testimony of Gregory D. Kutz, Managing Director of 
Forensic Audits and Special Investigations, U.S. Government 
Accountability Office (GAO), Hearing, U.S. House of Representatives, 
Committee on Education and Labor, Examining the Abusive and Deadly Use 
of Seclusion and Restraint in Schools'' at http://
republican.edlabor.house.gov/Media/file/111th/hearings/fc/051909/
gao.pdf.
---------------------------------------------------------------------------
    This point has also been substantiated by the actions of 
the U.S. Department of Education, through the Office for Civil 
Rights (OCR), which recently issued a draft regulation 
requiring state and local educational agencies to collect data 
on the use of restraint and seclusion in schools.\2\ The Civil 
Rights Data Collection, which has been pending for more than 
five months since September 2009, is expected to include data 
from 7,000 school districts and 77,000 schools. Under the 
proposal, school districts would submit three tables of data on 
restraint and seclusion--one for all students, one for students 
with Individualized Education Plans (IEPs), and one for those 
without IEPs. OCR's draft proposal was published in the Federal 
Register in an effort to use the Department's current data 
collection authority to determine how prevalent the problem of 
restraint and seclusion techniques is at the state or local 
level so the Department could determine whether they needed to 
act to protect student safety.
---------------------------------------------------------------------------
    \2\See http://edocket.access.gpo.gov/2009/pdf/E9-21935.pdf.
---------------------------------------------------------------------------
    In a letter dated May 22, 2009, Congressman Howard P. 
``Buck'' McKeon attempted to gather relevant information on the 
topic by asking U.S. Secretary of Education Arne Duncan to 
provide information on the number, nature, and resolution of 
any allegations of abuse from restraint and seclusion 
techniques that have been reported to the Department for the 
last five years. In his response to the Committee, the 
Secretary stated:

          With regard to your . . . question about allegations 
        of abuse from seclusion and restraint, the Department 
        received a copy of a letter sent by a parent to the 
        parent's State educational agency concerning the use of 
        restraint on that parent's child in 2004. The letter 
        was sent to the Department as ``information only''--no 
        response was requested or provided.
          In addition, the Office for Civil Rights (OCR) 
        contacted its regional offices and was able to identify 
        89 OCR cases that appear to be responsive to your 
        request. Of these 89 cases, 81 cases raised allegations 
        of disability discrimination, four raised allegations 
        of race/color/national origin discrimination, and four 
        cases raised allegations of disability and race/color/
        national origin discrimination. As of September 8, 
        2009, of those 89 cases, nine cases are open and 80 are 
        closed. Of those closed 80 cases, 33 cases were 
        dismissed or closed for administrative reasons (e.g. 
        lack of consent, the complaint was withdrawn, and the 
        complaint was untimely); 40 of those cases were closed 
        as ``insufficient evidence/no violation found'' with 
        regard to allegations involving restraint or seclusion 
        . . . and four of those cases were resolved by Early 
        Compliant Resolution . . .

    Committee Republicans support the actions of the Department 
to begin collecting data on the use of restraint and seclusion 
techniques and believe the Democratic majority should suspend 
action on H.R. 4247 until OCR completes its review to see how 
widespread the problem of harmful seclusion and restraint 
techniques may be. To do otherwise suggests that the majority 
is supportive of legislating prematurely, bereft of any 
reliable or factual information on which to base federal 
education policy.

Creation of a one-size-fits-all federal mandate

    Second, Committee Republicans believe H.R. 4247 fails to 
acknowledge the work of 31 states that have acted to address 
restraint and/or seclusion techniques. Instead, it creates a 
one-size-fits-all federal mandate. The use of restraint and 
seclusion techniques, including defining what constitutes a 
restraint or seclusion, is primarily regulated at the state 
level. Thirty-one states currently have laws and regulations in 
place that govern the use of restraint and/or seclusion in 
schools.\3\ In addition, school districts may also have their 
own guidelines governing the use of such practices in the 
classroom.
---------------------------------------------------------------------------
    \3\For a full breakdown of state policy affecting restraint and 
seclusion techniques, see ``Testimony of Gregory D. Kutz, Managing 
Director of Forensic Audits and Special Investigations, U.S. Government 
Accountability Office (GAO), Hearing, U.S. House of Representatives, 
Committee on Education and Labor, Examining the Abusive and Deadly Use 
of Seclusion and Restraint in Schools'' at http://
republicans.edlabor.house.gov/Media/file/111th/hearings/fe/051909/
gao.pdf.
---------------------------------------------------------------------------
    While state laws vary widely, an overwhelming majority of 
states are taking and have taken action to address problems 
that have arisen over time. The federal government should 
respect the rights of states to exercise their capacity and 
expertise to regulate in this area. The Democratic majority 
uses this fact in the Committee Report accompanying H.R. 4247 
to criticize states for not developing uniform policies around 
restraint and seclusion policies; however it should recognize 
that states are in the best position to develop and implement 
policies and laws that protect their students.
    In August 2009, U.S. Secretary of Education Arne Duncan 
conceded this fact by sending a letter to each Chief State 
School Officer urging them to review their current policies and 
guidelines regarding the use of restraints and seclusion in 
schools to ensure every student is safe and protected.\4\ The 
Secretary urged each state to do such a review prior to the 
start of the 2009-2010 school year and directed the Office of 
Elementary and Secondary Education to work with each state to 
discuss relevant state laws, regulation, policies, and guidance 
that affect the use of seclusion and restraint.
---------------------------------------------------------------------------
    \4\For a copy of the letter sent by Secretary Duncan, see http://
www2.ed.gov/policy/elsee/guid/secletter/090731.html.
---------------------------------------------------------------------------
    Unfortunately, the Secretary has failed to release the 
transcripts of the state reviews; more than seven months after 
he pledged to the Committee that he would take appropriate 
action, the transcripts have still not been released. These 
transcripts could include important information on recent 
actions taken by states, including those 19 states that lack 
any state laws regulating restraint and seclusion techniques, 
to protect the safety of students. Committee Republicans urge 
the Department to release the transcripts of state 
conversations immediately so federal and state policymakers can 
see whether states have made progress on preventing the misuse 
of restraint and seclusion techniques.

Inclusion of traditional private schools is unprecedented

    Third, Committee Republicans believe H.R. 4247 fails to 
exempt traditional private schools from its broad reach. Even 
though the GAO's report\5\ found no instances of misuse of 
seclusion and restraint at traditional private schools, H.R. 
4247 would apply to any school that receives federal funding or 
federal services under any federal education program. Under the 
Individuals with Disabilities Education Act (IDEA), students 
with disabilities are entitled to receive special education and 
related services if they attend a private school. This 
``equitable participation of private schools'' provision is an 
important component of special education law and is mirrored in 
all major education statutes passed by the Committee, including 
the Elementary and Secondary Education Act (ESEA). Although 
private schools and their students do receive services entitled 
to them under the law, they do not receive funding. 
Nonetheless, they are covered by the bill's provisions, 
establishing a dangerous precedent that has been rejected for 
decades of federal education law.
---------------------------------------------------------------------------
    \5\See ``Testimony of Gregory D. Kutz, Managing Director of 
Forensic Audits and Special Investigations, U.S. Government 
Accountability Office (GAO), Hearing, U.S. House of Representatives, 
Committee on Education and Labor, Examining the Abusive and Deadly Use 
of Seclusion and Restraint in Schools'' at http://
republicans.edlabor.house.gov/Media/file/111th/hearings/fe/051909/
gao.pdf.
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    In their February 17, 2010 letter\6\ sent to the Committee, 
the Council for American Private Education (CAPE) states that:
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    \6\For a copy of the letter sent by the Council for American 
Private Education (CAPE), see http://www.capenet.org/pdf/
CAPEHouse4247.pdf.

        . . . this legislation would impose an unprecedented 
        degree of federal mandates on religious and independent 
        schools. The class of schools that would be affected by 
        this bill is broad. Based on the definition of 
        ``school'' found in section 4(11), a religious school 
        with even a single student receiving math or reading 
        instruction under Title I of the Elementary and 
        Secondary Education Act (ESEA) would be subject to all 
        of the provisions of this bill, as would a school 
        receiving a single piece of instructional material or 
        professional development for a single teacher under any 
        other ESEA title. The U.S. Department of Education 
        reported in 2007 that a full 80 percent of Catholic 
        schools across the country participate in one or more 
        programs under ESEA.
          In the history of education legislation, the federal 
        government has never imposed training or certification 
        requirements on religious and independent schools for 
        any reason (emphasis added).

    Committee Republicans support long-standing federal policy 
that exempts private schools from the overreach of the federal 
government and urge the Democratic majority to exclude private 
schools from the provisions of H.R. 4247. This legislation 
represents an unprecedented expansion of the federal government 
into the affairs of private schools. In practice and contrary 
to the authors' intentions, most private schools may simply 
stop educating disruptive students, including disabled 
students, or decline the services offered by local school 
districts instead of subjecting themselves to federal control 
if this bill were to become law.

Inclusion of language that may open states and school districts up to 
        litigation

    Fourth, Committee Republicans believe H.R. 4247 may expose 
states and school districts to unnecessary and damaging 
litigation. While this bill does not contain a private right of 
action, it contains vague language on restricted actions and 
explicit language empowering the Protection and Advocacy system 
to investigate and enforce the protections under this Act, 
which wouldopen schools to potential litigation. For example, 
the bill includes broad phrases such as requiring states to restrict 
``aversive behavioral interventions that compromise health and 
safety,'' an undefined term that would be defined and litigated across 
the country. Additionally, trial lawyers could be empowered to sue the 
21 states that currently allow corporal punishment, since advocates may 
make the case that it compromises student health and safety. The 
legislation would also expand the role of the Protection and Advocacy 
system, the state-based system of trial lawyers, to enforce the 
protections under the bill.
    In addition to these provisions, the bill's restriction on 
the use of restraints that could be used to protect the safety 
of teachers and the majority of students in the classroom could 
in itself open states and school districts to additional 
litigation. The lawsuits may come not only from overreaching 
trial lawyers intent on suing school districts for using 
restraint and seclusion techniques, but also from school 
personnel and students who were harmed because schools were not 
allowed to control disruptive students.
    In order to avoid these and other lawsuits, schools may 
simply stop disciplining students and default to calling law 
enforcement to intercede rather than violate the law and 
guidance. This situation has occurred in several states, such 
as Kansas, which have implemented vague or overreaching 
restraint and seclusion requirements. As the American 
Association of School Administrators (AASA), the national 
association representing 13,000 educational leaders around the 
country, pointed out in their February 2, 2010\7\ letter to the 
Committee:
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    \7\For a copy of the letter sent by the American Association of 
School Administrators (AASA) see http://www.aasa.org/uploadedFiles/
Policy_and_Advocacy/files/Ed%20Labr%20 Cmte%20.Letter%20020210.pdf.

        . . . the policy in HR. 4247 may result in schools 
        relying on police to handle more dangerous situations 
        because action by school employees is too restrained to 
        be safely undertaken . . . the restrictive rules . . . 
        will mean that students who have a history of explosive 
        outbursts will be increasingly placed in more 
        restrictive settings to reduce the difficulties of 
        teachers in protecting students during violent 
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        outbursts.

    Again, supporters of H.R. 4247 claim it will not breed 
litigation because it does not expressly contain a private 
right of action. But, in reality, this bill will open schools 
to increased litigation through the power given to the 
protection and advocacy organizations under this bill and 
existing law.

Conclusion

    As outlined in these Republican Views, Committee 
Republicans believe all students, regardless of their 
educational ability or behavioral problems, deserve to be 
treated with respect and are entitled to a safe and rich 
learning environment. While the federal government lacks any 
reliable and relevant information on the prevalence of 
restraint and seclusion techniques at public and/or private 
schools, state and local leaders are taking important steps to 
protect the safety of their students after recent revelations 
that school personnel have misused restraint techniques and 
seclusion rooms.
    Committee Republicans certainly understand the goals of 
H.R. 4247; we support efforts to protect our children from 
abuse, neglect, and harm. However, we remain concerned that the 
bill legislates prematurely, ignores the work of the 31 states 
that have laws in place restricting the use of restraint and 
seclusion policies, creates a one-size-fits-all framework, 
imposes unprecedented bureaucratic and burdensome requirements 
on independent private schools, and opens states and school 
districts to a litany of lawsuits that will enrich trial 
lawyers.
                                   John Kline, Senior Republican 
                                       Member.
                                   Howard P. ``Buck'' McKeon.
                                   Mark E. Souder.
                                   Rob Bishop.
                                   Bill Cassidy.
                                   Duncan D. Hunter.
                                   David P. Roe.
                                   Glenn Thompson.

                                  
