[House Report 117-484]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 117-484
======================================================================
MENTAL HEALTH MATTERS ACT
_______
September 22, 2022.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Scott of Virginia, from the Committee on Education and Labor,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 7780]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 7780) to support the behavioral needs of
students and youth, invest in the school-based behavioral
health workforce, and ensure access to mental health and
substance use disorder benefits, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 18
Committee Action................................................. 19
Committee Views.................................................. 21
Section-by-Section Analysis...................................... 41
Explanation of Amendments........................................ 49
Application of Law to the Legislative Branch..................... 49
Unfunded Mandate Statement....................................... 49
Earmark Statement................................................ 49
Roll Call Votes.................................................. 49
Statement of Performance Goals and Objectives.................... 55
Duplication of Federal Programs.................................. 55
Hearings......................................................... 55
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 55
New Budget Authority and CBO Cost Estimate....................... 55
Committee Cost Estimate.......................................... 56
Changes in Existing Law Made by the Bill, as Reported............ 56
Minority Views................................................... 119
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 ``Mental Health Matters Act''.
SEC. 2. TABLE OF CONTENTS.
The table of contents of this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--EARLY CHILDHOOD MENTAL HEALTH ACT
Sec. 101. Short title.
Sec. 102. Identification of effective interventions in Head Start
programs.
Sec. 103. Implementing the interventions in Head Start programs.
Sec. 104. Evaluating implementation of interventions in Head Start
programs.
Sec. 105. Implementing the evaluation framework for Head Start
programs.
Sec. 106. Best Practice Centers.
Sec. 107. Funding.
TITLE II--BUILDING PIPELINE OF SCHOOL-BASED MENTAL HEALTH SERVICE
PROVIDERS ACT
Sec. 201. Short title.
Sec. 202. Definitions.
Sec. 203. Grant program to increase the number of school-based mental
health services providers serving in high-need local educational
agencies.
TITLE III--ELEMENTARY AND SECONDARY SCHOOL COUNSELING ACT
Sec. 301. Short title.
Sec. 302. Definitions.
Sec. 303. Allotments to States and subgrants to local educational
agencies.
Sec. 304. Authorization of appropriations.
TITLE IV--SUPPORTING TRAUMA-INFORMED EDUCATION PRACTICES ACT
Sec. 401. Short title.
Sec. 402. Amendment to the SUPPORT for Patients and Communities Act.
TITLE V--RESPOND, INNOVATE, SUCCEED, AND EMPOWER ACT
Sec. 501. Short title.
Sec. 502. Perfecting amendment to the definition of disability.
Sec. 503. Supporting students with disabilities to succeed once
enrolled in college.
Sec. 504. Authorization of funds for the National Center for
Information and Technical Support for Postsecondary Students With
Disabilities.
Sec. 505. Inclusion of information on students with disabilities.
Sec. 506. Rule of construction.
TITLE VI--STRENGTHENING BEHAVIORAL HEALTH BENEFITS ACT
Sec. 601. Short title.
Sec. 602. Enforcement of Mental Health and Substance Use Disorder
Requirements.
TITLE VII--EMPLOYEE AND RETIREE ACCESS TO JUSTICE ACT
Sec. 701. Short title.
Sec. 702. Unenforceable arbitration clauses, class action waivers,
representation waivers, and discretionary clauses.
Sec. 703. Prohibition on mandatory arbitration clauses, class action
waivers, representation waivers, and discretionary clauses.
Sec. 704. Effective date.
TITLE I--EARLY CHILDHOOD MENTAL HEALTH ACT
SEC. 101. SHORT TITLE.
This title may be cited as the ``Early Childhood Mental Health
Support Act''.
SEC. 102. IDENTIFICATION OF EFFECTIVE INTERVENTIONS IN HEAD START
PROGRAMS.
(a) Interventions That Improve Social-Emotional and Behavioral Health
of Children.--
(1) In general.--The Secretary of Health and Human Services
acting through the Assistant Secretary for the Administration
for Children and Families (in this section referred to as the
``Secretary'') shall identify and review interventions, best
practices, curricula, and staff trainings--
(A) that improve the behavioral health of children;
and
(B) that are evidence based.
(2) Focus.--In carrying out paragraph (1), the Secretary
shall focus on interventions, best practices, curricula, and
staff trainings that--
(A) can be delivered by a provider or other staff
member in or associated with a Head Start program or
Early Head Start center;
(B) are demonstrated to improve or support healthy
social, emotional, or cognitive development for
children in Head Start or Early Head Start programs,
with an empirical or theoretical relationship to later
mental health or substance abuse outcomes;
(C) involve changes to center-wide policies or
practices, or other services and supports offered in
conjunction with Head Start programs or Early Head
Start centers, including services provided to adults or
families (with or without a child present) for the
benefit of the children;
(D) demonstrate effectiveness across racial, ethnic,
and geographic populations or demonstrate the capacity
to be adapted to be effective across populations;
(E) offer a tiered approach to addressing need,
including--
(i) universal interventions for all children;
(ii) selected prevention for children
demonstrating increased need; and
(iii) indicated prevention for children
demonstrating substantial need;
(F) incorporate trauma-informed care approaches; or
(G) have a proven record of improving early childhood
and social emotional development.
(b) Interventions That Support Staff Wellness.--In carrying out
subsection (a), the Secretary shall identify and review interventions,
best practices, curricula, and staff trainings that support staff
wellness and self-care.
(c) Credentials.--In carrying out subsections (a) and (b), the
Secretary, in consultation with relevant experts, shall determine the
appropriate credentials for individuals who deliver the interventions,
best practices, curricula, and staff trainings identified by the
Secretary.
(d) Consultation; Public Input.--In carrying out this section, the
Secretary shall--
(1) consult with relevant agencies, experts, academics, think
tanks, and nonprofit organizations with expertise in early
childhood, mental health, and trauma-informed care, including
the National Institute of Mental Health, the Administration for
Children and Families, the Substance Abuse and Mental Health
Services Administration, the Institute of Education Sciences,
and the Centers for Disease Control and Prevention; and
(2) solicit public input on--
(A) the design of the reviews under subsections (a)
and (b); and
(B) the findings and conclusions resulting from such
reviews.
(e) Timing.--The Secretary shall--
(1) complete the initial reviews required by subsections (a)
and (b) not later than 2 years after the date of enactment of
this Act; and
(2) update such reviews and the findings and conclusions
therefrom at least every 5 years.
(f) Reporting.--Not later than 1 year after the date of enactment of
this Act, and every 5 years thereafter, the Secretary shall submit a
report to the Congress on the results of implementing this section.
SEC. 103. IMPLEMENTING THE INTERVENTIONS IN HEAD START PROGRAMS.
(a) In General.--The Assistant Secretary for the Administration for
Children and Families shall award grants to participating Head Start
agencies to implement the interventions, best practices, curricula, and
staff trainings that are identified pursuant to section 102.
(b) Requirements.--The Assistant Secretary shall ensure that grants
awarded under this section are awarded to grantees representing a
diversity of geographic areas across the United States, including
urban, suburban, and rural areas.
SEC. 104. EVALUATING IMPLEMENTATION OF INTERVENTIONS IN HEAD START
PROGRAMS.
(a) In General.--The Secretary of Health and Human Services, acting
through the Assistant Secretary for Planning and Evaluation and in
coordination with the Assistant Secretary for the Administration for
Children and Families, shall--
(1) determine whether the interventions, best practices,
curricula, and staff trainings implemented pursuant to section
103--
(A) are effectively implemented pursuant to section
103 and other relevant provisions of law such that the
anticipated effect sizes of the interventions, best
practices, curricula, and staff trainings are achieved;
and
(B) yield long-term savings;
(2) develop a method for making the determination required by
paragraph (1);
(3) ensure that such method includes competency and testing
approaches, performance or outcome measures, or any other
methods deemed appropriate by the Assistant Secretary, taking
into consideration existing monitoring components of the Head
Start and Early Head Start programs; and
(4) solicit public input on the design, findings, and
conclusions of this process and shall consider whether updates
are necessary at least every 5 years.
(b) Process.--In carrying out subsection (a), the Secretary of Health
and Human Services shall--
(1) conduct any research and evaluation studies needed; and
(2) solicit public input on--
(A) the design of the method developed pursuant to
subsection (a)(2); and
(B) the resulting findings and conclusions.
(c) Timing.--The Secretary of Health and Human Services shall--
(1) develop the method required by subsection (a)(2) and make
the initial determination required by subsection (a)(1) not
later than 2 years after the date of enactment of this Act; and
(2) update such method and determination at least every 5
years.
SEC. 105. IMPLEMENTING THE EVALUATION FRAMEWORK FOR HEAD START
PROGRAMS.
(a) Evaluation Method.--The Assistant Secretary for the
Administration for Children and Families shall implement the evaluation
method developed pursuant to section 104(a) in the Head Start program
as a voluntary mechanism for interested Head Start programs or Early
Head Start centers to evaluate the extent to which such programs or
centers have effectively implemented the interventions, best practices,
curricula, and staff trainings identified pursuant to section 102, with
minimal burden or disruption to programs and centers interested in
participating.
(b) Technical Assistance.--The Assistant Secretary for the
Administration for Children and Families shall provide guidance, tools,
resources, and technical assistance to grantees for implementing and
evaluating interventions, best practices, curricula, and staff
trainings identified pursuant to section 102 and optimizing the
performance of such grantees on the annual evaluations.
SEC. 106. BEST PRACTICE CENTERS.
The Assistant Secretary for the Administration for Children and
Families may fund up to 5 Best Practice Centers in Early Childhood
Training in universities and colleges to prepare future Head Start
agencies and staff able to deliver the interventions, best practices,
curricula, and staff trainings identified pursuant to section 102.
SEC. 107. FUNDING.
(a) Authorization of Appropriations.--There is authorized to be
appropriated $100,000,000 for the period of fiscal years 2023 through
2032 for carrying out sections 103(b), 104, and 106.
(b) Availability of Appropriations.--Amounts authorized to be
appropriated by subsection (a) are authorized to remain available until
expended.
TITLE II--BUILDING PIPELINE OF SCHOOL-BASED MENTAL HEALTH SERVICE
PROVIDERS ACT
SEC. 201. SHORT TITLE.
This title may be cited as the ``Building Pipeline of School-Based
Mental Health Service Providers Act''.
SEC. 202. DEFINITIONS.
In this title:
(1) Best practices.--The term ``best practices'' means a
technique or methodology that, through experience and research
related to professional practice in a school-based mental
health field, has proven to reliably lead to a desired result.
(2) Eligible institution.--The term ``eligible institution''
means an institution of higher education that offers a program
of study that leads to a master's or other graduate degree--
(A) in school psychology that prepares students in
such program for the State licensing or certification
examination in school psychology;
(B) in school counseling that prepares students in
such program for the State licensing or certification
examination in school counseling;
(C) in school social work that prepares students in
such program for the State licensing or certification
examination in school social work;
(D) in another school-based mental health field that
prepares students in such program for the State
licensing or certification examination in such field,
if applicable; or
(E) in any combination of study described in
subparagraphs (A) through (D).
(3) Eligible partnership.--The term ``eligible partnership''
means--
(A) a partnership between 1 or more high-need local
educational agencies and 1 or more eligible
institutions; or
(B) in any region in which local educational agencies
may not have a sufficient elementary school and
secondary school student population to support the
placement of all participating graduate students, a
partnership between a State educational agency, on
behalf of 1 or more high-need local educational
agencies, and 1 or more eligible institutions.
(4) High-need local educational agency.--The term ``high-need
local educational agency'' means a local educational agency
that--
(A) is described in section 200(10) of the Higher
Education Act of 1965 (20 U.S.C. 1021(10)); and
(B) as of the date of application for a grant under
this title, has ratios of school counselors, school
social workers, and school psychologists to students
served by the agency that are not more than 1 school
counselor per 250 students, not more than 1 school
psychologist per 500 students, and not more than 1
school social worker per 250 students.
(5) Historically black college or university.--The term
``historically Black college or university'' has the meaning
given the term ``part B institution'' in section 322 of the
Higher Education Act of 1965 (20 U.S.C. 1061).
(6) Homeless children and youths.--The term ``homeless
children and youths'' has the meaning given such term in
section 725 of the McKinney-Vento Homeless Assistance Act (42
U.S.C. 11434a).
(7) Indian tribe; tribal organization.--In this section the
terms ``Indian tribe'' and ``tribal organization'' have the
meanings given those terms in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5304)).
(8) Institution of higher education.--The term ``institution
of higher education'' has the meaning given such term in
section 101(a) of the Higher Education Act of 1965 (20 U.S.C.
1001(a)).
(9) Local educational agency.--The term ``local educational
agency'' has the meaning given such term in section 8101 of the
Elementary and Secondary Education Act of 1965 (20 U.S.C.
7801).
(10) Minority-serving institution.--The term ``minority-
serving institution'' means, as defined in section 371(a) of
the Higher Education Act of 1965 (20 U.S.C. 1067q(a)), a
Hispanic-serving institution, an Alaska Native-serving
institution or a Native Hawaiian-serving institution, a
Predominantly Black Institution, an Asian American and Native
American Pacific Islander-serving institution, or a Native
American-serving nontribal institution.
(11) Outlying area.--The term ``outlying area'' has the
meaning given the term in section 8101(36)(A) of the Elementary
and Secondary Education Act of 1965 (20 U.S.C. 7801(36)(A)).
(12) Participating eligible institution.--The term
``participating eligible institution'' means an eligible
institution that is part of an eligible partnership awarded a
grant under section 203.
(13) Participating graduate.--The term ``participating
graduate'' means an individual who--
(A) has received a master's or other graduate degree
in a school-based mental health field from a
participating eligible institution and has obtained a
State license or credential in the school-based mental
health field; and
(B) as a graduate student pursuing a career in a
school-based mental health field, was placed in a
school served by a participating high-need local
educational agency to complete required field work,
credit hours, internships, or related training as
applicable.
(14) Participating high-need local educational agency.--The
term ``participating high-need local educational agency'' means
a high-need local educational agency that is part of an
eligible partnership awarded a grant under section 203.
(15) School-based mental health field.--The term ``school-
based mental health field'' means each of the following fields:
(A) School counseling.
(B) School social work.
(C) School psychology.
(D) Any other field of study that leads to employment
as a school-based mental health services provider.
(16) School-based mental health services provider.--The term
``school-based mental health services provider'' has the
meaning given the term in section 4102 of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 7112).
(17) Secretary.--The term ``Secretary'' means the Secretary
of Education.
(18) State educational agency.--The term ``State educational
agency'' has the meaning given the term in section 8101 of the
Elementary and Secondary Education Act of 1965 (20 U.S.C.
7801).
(19) Student support personnel target ratios.--The term
``student support personnel target ratios'' means the ratios of
school-based mental health services providers to students
recommended to enable such personnel to effectively address the
needs of students, including--
(A) at least 1 school counselor for every 250
students (as recommended by the American School
Counselor Association and American Counseling
Association);
(B) at least 1 school psychologist for every 500
students (as recommended by the National Association of
School Psychologists); and
(C) at least 1 school social worker for every 250
students (as recommended by the School Social Work
Association of America).
(20) Tribally controlled college or university.--The term
``tribally controlled college or university'' has the meaning
given such term in section 2 of the Tribally Controlled
Colleges and Universities Assistance Act of 1978 (25 U.S.C.
1801).
(21) Unaccompanied youth.--The term ``unaccompanied youth''
has the meaning given such term in section 725 of the McKinney-
Vento Homeless Assistance Act (42 U.S.C. 11434a).
SEC. 203. GRANT PROGRAM TO INCREASE THE NUMBER OF SCHOOL-BASED MENTAL
HEALTH SERVICES PROVIDERS SERVING IN HIGH-NEED
LOCAL EDUCATIONAL AGENCIES.
(a) Authorization of Grants.--
(1) Grant program authorized.--From amounts made available to
carry out this section, the Secretary shall award grants, on a
competitive basis, to eligible partnerships, to enable the
eligible partnerships to carry out pipeline programs to
increase the number of school-based mental health services
providers employed by high-need local educational agencies by
carrying out any of the activities described in subsection (e).
(2) Reservations.--From the total amount appropriated under
subsection (j) for a fiscal year, the Secretary shall reserve--
(A) one-half of 1 percent for the Secretary of the
Interior to carry out programs under this title in
schools operated or funded by the Bureau of Indian
Education, Indian tribes and tribal organizations, or a
consortium of Indian tribes and tribal organizations;
(B) one-half of 1 percent for allotments to outlying
areas based on the relative need of each such area with
respect to mental health services in schools, as
determined by the Secretary in accordance with the
purpose of this title;
(C) not more than 3 percent to conduct the
evaluations under subsection (h); and
(D) not more than 2 percent for the administration of
the program under this title and to provide technical
assistance relating to such program.
(b) Grant Period.--A grant awarded under this section shall be for a
5-year period and may be renewed for additional 5-year periods upon a
showing of adequate progress, as determined by the Secretary.
(c) Application.--To be eligible to receive a grant under this
section, an eligible partnership shall submit to the Secretary a grant
application at such time, in such manner, and containing such
information as the Secretary may require. At a minimum, such
application shall include--
(1) an assessment of the existing (as of the date of
application) ratios of school-based mental health services
providers (in the aggregate and disaggregated by profession) to
students enrolled in schools in each high-need local
educational agency that is part of the eligible partnership;
and
(2) a detailed description of--
(A) a plan to carry out a pipeline program to train,
place, and retain school-based mental health services
providers in high-need local educational agencies; and
(B) the proposed allocation and use of grant funds to
carry out activities described in subsection (e).
(d) Award Basis.--In awarding grants under this section, the
Secretary shall--
(1) ensure that to the extent practicable, grants are
distributed among eligible entities that will serve
geographically diverse areas; and
(2) give priority to eligible partnerships that--
(A) propose to use the grant funds to carry out the
activities described under paragraphs (1) through (3)
of subsection (e) in schools that have higher numbers
or percentages of low-income students (determined using
any of the measures of poverty described in section
1113(a)(5) of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 6313(a)(5))), in comparison to
other schools that are served by the high-need local
educational agency that is part of the eligible
partnership;
(B) include 1 or more high-need local educational
agencies that have fewer school-based mental health
services providers, in the aggregate or for a
particular school-based mental health field, per
student than other eligible partnerships that have
submitted a grant application under subsection (c);
(C) include 1 or more eligible institutions of higher
education which are a historically Black college or
university, a minority-serving institution, or a
tribally controlled college or university;
(D) propose to collaborate with other institutions of
higher education with similar programs, including
sharing facilities, faculty members, and administrative
costs; and
(E) propose to use grant funds to increase the
diversity of school-based mental health services
providers.
(e) Use of Grant Funds.--Grant funds awarded under this section may
be used--
(1) to pay the administrative costs (including supplies,
office and classroom space, supervision, mentoring, and
transportation stipends as necessary and appropriate) related
to--
(A) having graduate students of programs in school-
based mental health fields placed in schools served by
participating high-need local educational agencies to
complete required field work, credit hours,
internships, or related training as applicable for the
degree, license, or credential program of each such
student; and
(B) offering required graduate coursework for
students of a graduate program in a school-based mental
health services field on the site of a participating
high-need local educational agency;
(2) for not more than the first 3 years after a participating
graduate receives a master's or other graduate degree from a
program in a school-based mental health field, or obtains a
State license or credential in a school-based mental health
field, to hire and pay all or part of the salary of the
participating graduates working as a school-based mental health
services provider in a school served by a participating high-
need local educational agency;
(3) to increase the number of school-based mental health
services providers per student in schools served by
participating high-need local educational agencies, in order to
meet the student support personnel target ratios;
(4) to recruit, hire, and retain culturally or linguistically
under-represented graduate students of programs in school-based
mental health fields for placement in schools served by
participating high-need local educational agencies;
(5) to develop coursework that will--
(A) encourage a commitment by graduate students in
school-based mental health fields to work for high-need
local educational agencies;
(B) give participating graduates the knowledge and
skill sets necessary to meet the needs of--
(i) students and families served by high-need
local educational agencies;
(ii) students at risk of not meeting State
academic standards;
(iii) students who--
(I) are English learners (as defined
in section 8101 of the Elementary and
Secondary Education Act of 1965 (20
U.S.C. 7801));
(II) are migratory children (as
defined in section 1309 of such Act (20
U.S.C. 6399));
(III) have a parent or caregiver who
is a member of the armed forces,
including the National Guard, who has
been deployed or returned from
deployment;
(IV) are LGBTQ+, including students
who are lesbian, gay, bisexual,
transgender, queer or questioning,
nonbinary, or Two-Spirit;
(V) are homeless children and youth,
including unaccompanied youth;
(VI) have come into contact with the
juvenile justice system or adult
criminal justice system, including
students currently or previously held
in juvenile detention facilities or
adult jails and students currently or
previously held in juvenile
correctional facilities or adult
prisons;
(VII) are a child with a disability
(as defined in section 8101 of the
Elementary and Secondary Education Act
of 1965 (20 U.S.C. 7801));
(VIII) have been a victim to, or
witnessed, domestic violence or
violence in their community;
(IX) have been exposed to substance
misuse at home or in the community;
(X) are in foster care, are aging out
of foster care, or were formerly in
foster care; or
(XI) have been a victim to or
witnessed trafficking in persons; and
(iv) teachers, administrators, and other
staff who work for high-need local educational
agencies; and
(C) utilize best practices determined by the American
School Counselor Association, National Association of
Social Workers, School Social Work Association of
America, and National Association of School
Psychologists and other relevant organizations;
(6) to provide tuition credits to graduate students
participating in the pipeline program supported under the
grant;
(7) to fund high-quality ``Grow Your Own'' teacher
preparation programs that provide pathways to State licensure
or certification as a school psychologist, school counselor,
school social worker, or other school-based mental services
provider to recruit and prepare local community members, career
changers, paraprofessionals, after-school program staff, and
others currently working in schools to become school-based
mental health services providers;
(8) to cover the costs of licensure and preparation for
required licensure exams; and
(9) for similar activities to fulfill the purpose of this
title, as the Secretary determines appropriate.
(f) Supplement Not Supplant.--Funds made available under this section
shall be used to supplement, not supplant, other Federal, State, or
local funds available for the activities described in subsection (e).
(g) Reporting Requirements.--
(1) In general.--Each eligible partnership that receives a
grant under this section shall prepare and submit to the
Secretary an annual report on the progress of the eligible
partnership in carrying out the grant. Such report shall
contain such information as the Secretary may require,
including, at a minimum, a description of--
(A) actual service delivery provided through the
grant funds, including--
(i) descriptive information on the
participating eligible institution, the
educational model used, and the actual academic
program performance;
(ii) characteristics of graduate students
participating in the pipeline program supported
under the grant, including--
(I) performance on any examinations
required by the State for credentialing
or licensing;
(II) demographic characteristics; and
(III) graduate student retention
rates;
(iii) characteristics of students of the
participating high-need local educational
agency, including performance on any tests
required by the State educational agency,
demographic characteristics, and graduation
rates, as appropriate;
(iv) an estimate of the annual implementation
costs of the pipeline program supported under
the grant; and
(v) the number of public elementary and
secondary school students, public elementary
and secondary schools, graduate students, and
institutions of higher education participating
in the pipeline program supported under the
grant;
(B) outcomes that are consistent with the purpose of
the grant program under this title, including--
(i) internship and post-graduation placement
of the participating graduate students;
(ii) graduation and professional career
readiness indicators; and
(iii) characteristics of the participating
high-need local educational agency, including
with respect to fully certified and effective
teachers and school-based mental health
services providers employed by such agency--
(I) changes in the rate of hiring and
retention of such teachers and
providers (in the aggregate and
disaggregated by each such profession);
and
(II) the demographics, including the
race, ethnicity, and gender, of such
teachers and providers.
(C) the instruction, materials, and activities being
funded under the grant; and
(D) the effectiveness of any training and ongoing
professional development provided--
(i) to students and faculty in the
appropriate departments or schools of the
participating eligible institution; and
(ii) to the teachers, paraprofessionals,
school leaders, school-based mental health
services providers, and other specialized
instructional support personnel of the
participating high-need local educational
agency.
(2) Publication.--The Secretary shall publish the annual
reports submitted under paragraph (1) on the website of the
Department of Education.
(h) Evaluation.--
(1) Interim evaluations.--The Secretary may conduct interim
evaluations to determine whether each eligible partnership
receiving a grant under this section is making adequate
progress as the Secretary considers appropriate. The contents
of the annual report submitted to the Secretary under
subsection (g) may be used by the Secretary to determine
whether an eligible partnership receiving a grant is
demonstrating adequate progress.
(2) Final evaluation.--The Secretary shall conduct a final
evaluation to--
(A) determine the effectiveness of the grant program
in carrying out the purpose of this title; and
(B) compare the relative effectiveness of each of the
various activities described in subsection (e) for
which grant funds may be used.
(i) Report.--Not earlier than 5 years, nor later than 6 years, after
the date of enactment of this Act, the Secretary shall submit to the
Congress a report containing--
(1) the findings of the final evaluation conducted under
subsection (h)(2); and
(2) such recommendations as the Secretary considers
appropriate.
(j) Authorization of Appropriations.--There are authorized to be
appropriated to carry out this section $200,000,000 for fiscal year
2023 and each succeeding fiscal year.
TITLE III--ELEMENTARY AND SECONDARY SCHOOL COUNSELING ACT
SEC. 301. SHORT TITLE.
This title may be cited as the ``Elementary and Secondary School
Counseling Act''.
SEC. 302. DEFINITIONS.
In this title:
(1) ESEA definitions.--The terms ``elementary school'',
``local educational agency'', and ``secondary school'' have the
meanings given the terms in section 8101 of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 7801).
(2) High-need school.--The term ``high-need school'' has the
meaning given the term in section 2211(b) of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 6631(b)).
(3) Indian tribe; tribal organization.--The terms ``Indian
tribe'' and ``tribal organization'' have the meanings given
those terms in section 4 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 5304)).
(4) Outlying area.--The term ``outlying area'' means an
outlying area specified in section 8101(36)(A) of the
Elementary and Secondary Education Act of 1965 (20 U.S.C.
7801(36)(A)).
(5) School-based mental health services provider.--The term
``school-based mental health services provider'' has the
meaning given the term in section 4102 of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 7112).
(6) Secretary.--The term ``Secretary'' means the Secretary of
Education.
(7) State.--The term ``State'' means each of the 50 States,
the District of Columbia, and Puerto Rico.
SEC. 303. ALLOTMENTS TO STATES AND SUBGRANTS TO LOCAL EDUCATIONAL
AGENCIES.
(a) Program Authorized.--The Secretary shall carry out a program
under which the Secretary makes allotments to States, in accordance
with subsection (c), to enable the States to award subgrants to local
educational agencies in order to increase access to school-based mental
health services providers at high-need schools served by the local
educational agencies.
(b) Reservations.--From the total amount made available under section
304 for a fiscal year, the Secretary shall reserve--
(1) one-half of 1 percent for the Secretary of the Interior
for programs under this title in schools operated or funded by
the Bureau of Indian Education, Indian tribes and tribal
organizations, or consortia of Indian tribes and tribal
organizations;
(2) one-half of 1 percent for allotments for the outlying
areas to be distributed among those outlying areas on the basis
of their relative need, as determined by the Secretary, in
accordance with the purpose of this title; and
(3) not more than 2 percent for the administration of the
program under this title and to provide technical assistance
relating to such program.
(c) Allotments to States.--
(1) In general.--
(A) Formula.--From the total amount made available
under section 304 for a fiscal year and not reserved
under subsection (b), the Secretary shall allot to each
State that submits a true and complete application
under paragraph (3) (as determined by the Secretary) an
amount that bears the same relationship to such total
amount as the amount received under part A of title I
of the Elementary and Secondary Education Act of 1965
(20 U.S.C. 6311 et seq.) by such State for such fiscal
year bears to the amount received under such part for
such fiscal year by all States that submit such
applications.
(B) Small state minimum.--No State receiving an
allotment under this paragraph shall receive less than
one-half of 1 percent of the total amount allotted
under this paragraph.
(2) Matching requirements.--In order to receive an allotment
under paragraph (1), a State shall agree to provide matching
funds, in an amount equal to 20 percent of the amount of the
allotment, toward the costs of the activities carried out with
the allotment.
(3) Application.--A State desiring an allotment under
paragraph (1) shall submit to the Secretary an application at
such time, in such manner, and containing such information as
the Secretary may require. Each application shall include, at a
minimum--
(A) an assurance that the State will use the
allotment only for the purposes specified in subsection
(d)(1);
(B) a description of how the State will award
subgrants to local educational agencies under such
subsection;
(C) a description of how the State will disseminate,
in a timely manner, information regarding the subgrants
and the application process for such subgrants to local
educational agencies; and
(D) the ratios, as of the date of application, of
students to school-based mental health services
providers in each public elementary school and
secondary school in the State, in the aggregate and
disaggregated to include--
(i) the ratios of students to school
counselors, school psychologists, and school
social workers; and
(ii) as applicable, the ratios of students to
other school-based mental health services
providers not described in clause (i), in the
aggregate and disaggregated by type of
provider.
(4) Duration.--An allotment to a State under paragraph (1)
shall be for a 5-year period and may be renewed for additional
5-year periods upon a showing of adequate progress on meeting
the goals of the program under this title, as determined by the
Secretary.
(d) Subgrants to Local Educational Agencies.--
(1) In general.--A State receiving an allotment under
subsection (c) shall use the allotment to award subgrants, on a
competitive basis, to local educational agencies in the State,
to enable the local educational agencies to--
(A) recruit and retain school-based mental health
services providers to work at high-need schools served
by the local educational agency; and
(B) work toward effectively staffing the high-need
schools of the local educational agency with school-
based mental health services providers, including by
meeting the recommended maximum ratios of--
(i) 250 students per school counselor;
(ii) 500 students per school psychologist;
and
(iii) 250 students per school social worker.
(2) Priority.--In awarding subgrants under this subsection,
the State shall give priority to local educational agencies
that serve a significant number of high-need schools.
(3) Application.--A local educational agency desiring a
subgrant under this subsection shall submit an application to
the State at such time, in such manner, and containing such
information as the State may require, including information on
how the local educational agency will prioritize assisting
high-need schools with the largest numbers or percentages of
students from low-income families (as counted under section
1124(c) of the Elementary and Secondary Education Act of 1965
(20 U.S.C. 6333(c))).
(e) Allotment and Subgrant Requirements.--
(1) Supplement, not supplant.--Amounts received from an
allotment under subsection (c) or a subgrant under subsection
(d) shall supplement, and not supplant, any other funds
available to a State or local educational agency for school-
based mental health services.
(2) Combining funds allowed.--A local educational agency
receiving a subgrant under subsection (d) may combine such
subgrant with State or local funds to carry out the activities
described in subsection (d)(1).
(f) Reports.--
(1) Local educational agencies.--A local educational agency
that receives a subgrant under subsection (d) shall submit an
annual report to the State on the activities carried out with
the subgrant funds. Each such report shall--
(A) describe the activities carried out using
subgrant funds;
(B) enumerate the number of school-based mental
health services providers (in the aggregate and
disaggregated by profession) who--
(i) were employed by or otherwise served in
high-need public elementary and secondary
schools under the jurisdiction of the local
educational agency over the year covered by the
report; and
(ii) were supported with funds from the
subgrant or matching funds during such year;
and
(C) include the most recent student to provider
ratios, in the aggregate and disaggregated as provided
in subsection (c)(3)(D), for high-need schools under
the jurisdiction of the local educational agency that
were supported with the subgrant or matching funds.
(2) State.--A State receiving an allotment under subsection
(c) shall annually prepare and submit a report to the Secretary
that--
(A) evaluates the progress made in achieving the
purposes of the program under this title;
(B) includes the most recent student to provider
ratios, in the aggregate and disaggregated as provided
in subsection (c)(3)(D), for high-need schools in the
State that were assisted with subgrants under
subsection (d); and
(C) describes any other resources needed to meet the
required recommended maximum student to school-based
mental health services provider ratios.
(3) Public availability.--The Secretary shall make all
reports submitted under this subsection available to the
public, including through the website of the Department.
SEC. 304. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out this title--
(1) $5,000,000,000 for fiscal year 2023; and
(2) such sums as may be necessary for each succeeding fiscal
year.
TITLE IV--SUPPORTING TRAUMA-INFORMED EDUCATION PRACTICES ACT
SECTION 401. SHORT TITLE.
This title may be cited as the ``Supporting Trauma-Informed Education
Practices Act''.
SEC. 402. AMENDMENT TO THE SUPPORT FOR PATIENTS AND COMMUNITIES ACT.
Section 7134 of the SUPPORT for Patients and Communities Act (42
U.S.C. 280h-7) is amended to read as follows:
``SEC. 7134. GRANTS TO IMPROVE TRAUMA SUPPORT SERVICES AND MENTAL
HEALTH CARE FOR CHILDREN AND YOUTH IN EDUCATIONAL
SETTINGS.
``(a) Authorization of Grants.--
``(1) Grants, contracts, and cooperative agreements
authorized.--The Secretary, in coordination with the Secretary
of Health and Human Services, is authorized to award grants to,
or enter into contracts or cooperative agreements with, an
eligible entity for the purpose of increasing student, teacher,
school leader, and other school personnel access to evidence-
based trauma support services and mental health services by
developing innovative initiatives, activities, or programs to
connect schools and local educational agencies, or tribal
educational agencies, as applicable, with community trauma-
informed support and mental health systems, including such
systems under the Indian Health Service.
``(2) Reservations.--From the total amount appropriated under
subsection (l) for a fiscal year, the Secretary shall reserve--
``(A) not more than 3 percent to conduct the
evaluation under subsection (f); and
``(B) not more than 2 percent for technical
assistance and administration.
``(b) Duration.--With respect to a grant, contract, or cooperative
agreement awarded or entered into under this section, the period during
which payments under such grant, contract or agreement are made to the
recipient may not exceed 5 years.
``(c) Use of Funds.--An eligible entity that receives or enters into
a grant, contract, or cooperative agreement under this section shall
use amounts made available through such grant, contract, or cooperative
agreement for evidence-based initiatives, activities, or programs,
which shall include at least 1 of the following:
``(1) Enhancing, improving, or developing collaborative
efforts between schools, local educational agencies or tribal
educational agencies, as applicable, and community mental
health and trauma-informed service delivery systems to provide,
develop, or improve prevention, referral, treatment, and
support services to students.
``(2) Implementing trauma-informed models of support,
including trauma-informed, positive behavioral interventions
and supports in schools served by the eligible entity.
``(3) Providing professional development to teachers,
paraprofessionals, school leaders, school-based mental health
services providers, and other specialized instructional support
personnel employed by local educational agencies or tribal
educational agencies, as applicable or schools served by the
eligible entity that--
``(A) fosters safe and stable learning environments
that prevent and mitigate the effects of trauma,
including through social and emotional learning;
``(B) improves school capacity to identify, refer,
and provide services to students in need of trauma-
informed support or mental health services, including
by helping educators to identify the unique personal
and contextual variables that influence the
manifestation of trauma; and
``(C) reflects the best practices for trauma-informed
identification, referral, and support developed by the
Interagency Task Force on Trauma-Informed Care (as
established by section 7132).
``(4) Providing trauma-informed support services and mental
health services to students at full-service community schools
served by the eligible entity.
``(5) Engaging families and communities to increase awareness
of child trauma, which may include sharing best practices with
law enforcement regarding trauma-informed services and working
with mental health professionals to provide interventions and
longer term coordinated care within the community for children
and youth who have experienced trauma and the families of such
children and youth.
``(6) Evaluating the effectiveness of the initiatives,
activities, or programs carried out under this section in
increasing student access to evidence-based trauma support
services and mental health services.
``(7) Establishing partnerships with or providing subgrants
to early childhood education programs or other eligible
entities, to include such entities in the evidence-based
trauma-informed or mental health initiatives, activities, and
support services established under this section in order to
provide, develop, or improve prevention, referral, treatment,
and support services to children and their families.
``(8) Establishing new, or enhancing existing, evidence-based
educational, awareness, and prevention programs to improve
mental health and resiliency among teachers, paraprofessionals,
school leaders, school-based mental health services providers,
and other specialized instructional support personnel employed
by local educational agencies or tribal educational agencies,
as applicable, or schools served by the eligible entity.
``(d) Applications.--To be eligible to receive a grant, contract, or
cooperative agreement under this section, an eligible entity shall
submit an application to the Secretary at such time, in such manner,
and containing such information as the Secretary may reasonably
require, which shall include the following:
``(1) A description of the innovative initiatives,
activities, or programs to be funded under the grant, contract,
or cooperative agreement, including how such initiatives,
activities, or programs will increase access to evidence-based
trauma-informed support services and mental health services for
students, and, as applicable, the families of such students.
``(2) A description of how the initiatives, activities, or
programs will provide linguistically appropriate and culturally
competent services.
``(3) A description of how the initiatives, activities, or
programs will support schools served by the eligible entity in
improving school climate in order to support an environment
conducive to learning.
``(4) An assurance that--
``(A) persons providing services under the
initiative, activity, or program funded by the grant,
contract, or cooperative agreement are fully licensed
or certified to provide such services;
``(B) teachers, school leaders, administrators,
school-based mental health services providers and other
specialized instructional support personnel,
representatives of local Indian Tribes or tribal
organizations as appropriate, other school personnel,
individuals who have experience receiving mental health
services as children, and parents of students
participating in services under this section will be
engaged and involved in the design and implementation
of the services; and
``(C) the eligible entity will comply with the
evaluation required under subsection (f).
``(5) A description of how the eligible entity will support
and integrate existing school-based services at schools served
by the eligible entity with the initiatives, activities, or
programs funded under this section in order to provide trauma-
informed support services or mental health services for
students, as appropriate.
``(6) A description of how the eligible entity will
incorporate peer support services into the initiatives,
activities, or programs to be funded under this section.
``(7) A description of how the eligible entity will ensure
that initiatives, activities, or programs funded under this
section are accessible to and include students with
disabilities.
``(8) An assurance that the eligible entity will establish a
local interagency agreement under subsection (e) and comply
with such agreement.
``(e) Interagency Agreements.--
``(1) Local interagency agreements.--In carrying out an
evidence-based initiative, activity, or program described in
subsection (c), an eligible entity that receives a grant,
contract, or cooperative agreement under this section, or a
designee of such entity, shall establish an interagency
agreement between local educational agencies, agencies
responsible for early childhood education programs, Head Start
agencies (including Early Head Start agencies), juvenile
justice authorities, mental health agencies, child welfare
agencies, and other relevant agencies, authorities, or entities
in the community that will be involved in the provision of
services under such initiative, activity, or program.
``(2) Contents.--The local interagency agreement required
under paragraph (1) shall specify, with respect to each agency,
authority, or entity that is a party to such agreement--
``(A) the financial responsibility for any services
provided by such entity;
``(B) the conditions and terms of responsibility for
such any services, including quality, accountability,
and coordination of the services; and
``(C) the conditions and terms of reimbursement of
such agencies, authorities, or entities, including
procedures for dispute resolution.
``(f) Evaluation.--The Secretary shall conduct a rigorous and
independent evaluation of the initiatives, activities, and programs
carried out by an eligible entity under this section and disseminate
evidence-based practices regarding trauma-informed support services and
mental health services.
``(g) Distribution of Awards.--The Secretary shall ensure that
grants, contracts, and cooperative agreements awarded or entered into
under this section are equitably distributed among the geographical
regions of the United States and among tribal, urban, suburban, and
rural populations.
``(h) Rule of Construction.--Nothing in this section shall be
construed--
``(1) to prohibit an entity involved with an initiative,
activity, or program carried out under this section from
reporting a crime that is committed by a student to appropriate
authorities; or
``(2) to prevent Federal, State, local, and tribal law
enforcement and judicial authorities from exercising their
responsibilities with regard to the application of Federal,
State, local, and tribal law to crimes committed by a student.
``(i) Supplement, Not Supplant.--Federal funds provided under this
section shall be used to supplement, and not supplant, other Federal,
State, or local funds available to carry out the initiatives,
activities, and programs described in this section.
``(j) Consultation Required.--In awarding or entering into grants,
contracts, and cooperative agreements under this section, the Secretary
shall, in a timely manner, meaningfully consult with Indian Tribes,
Regional Corporations, Native Hawaiian Educational Organizations, and
their representatives to ensure notice of eligibility.
``(k) Definitions.--In this section:
``(1) Early childhood education program.--The term `early
childhood education program' has the meaning given such term in
section 103 of the Higher Education Act of 1965 (20 U.S.C.
1003).
``(2) Eligible entity.--The term `eligible entity' means--
``(A) a State educational agency;
``(B) a local educational agency;
``(C) an Indian Tribe (as defined in section 4 of the
Indian Self-Determination and Education Assistance Act)
or their tribal educational agency;
``(D) the Bureau of Indian Education;
``(E) a Regional Corporation;
``(F) a Native Hawaiian educational organization; and
``(G) State, Territory, and Tribal Lead Agencies
administering the Child Care and Development Fund as
described in section 658D(a) of the Child Care and
Development Block Grant Act (42 U.S.C. 9858b(a)).
``(3) ESEA terms.--
``(A) The terms `elementary school', `evidence-
based', `local educational agency', `paraprofessional',
`parent', `professional development', `school leader',
`secondary school', `Secretary', `specialized
instructional support personnel', and `State
educational agency' have the meanings given such terms
in section 8101 of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 7801).
``(B) The term `full-service community school' has
the meaning given such term in section 4622 of the
Elementary and Secondary Education Act of 1965 (20
U.S.C. 7272).
``(C) The term `Native Hawaiian educational
organization' has the meaning given such term in
section 6207 of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7517).
``(D) The term `school-based mental health services
provider' has the meaning given the term in section
4102 of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 7112).
``(4) Regional corporation.--The term `Regional Corporation'
has the meaning given the term in section 3 of the Alaska
Native Claims Settlement Act (43 U.S.C. 1602)).
``(5) School.--The term `school' means a public elementary
school or public secondary school.
``(l) Authorization of Appropriations.--There are authorized to be
appropriated to carry out this section, $50,000,000 for each of fiscal
years 2023 through 2027.''.
TITLE V--RESPOND, INNOVATE, SUCCEED, AND EMPOWER ACT
SEC. 501. SHORT TITLE.
This title may be cited as the ``Respond, Innovate, Succeed, and
Empower Act'' or the ``RISE Act''.
SEC. 502. PERFECTING AMENDMENT TO THE DEFINITION OF DISABILITY.
Section 103(6) of the Higher Education Act of 1965 (20 U.S.C.
1003(6)) is amended by striking ``section 3(2)'' and inserting
``section 3''.
SEC. 503. SUPPORTING STUDENTS WITH DISABILITIES TO SUCCEED ONCE
ENROLLED IN COLLEGE.
Section 487(a) of the Higher Education Act of 1965 (20 U.S.C.
1094(a)) is amended by adding at the end the following:
``(30)(A) The institution will carry out the following:
``(i) Adopt policies that make any of the following
documentation submitted by an individual sufficient to
establish that such individual is an individual with a
disability:
``(I) Documentation that the individual has
had an individualized education program (IEP)
in accordance with section 614(d) of the
Individuals with Disabilities Education Act (20
U.S.C. 1414(d)), including an IEP that may not
be current on the date of the determination
that the individual has a disability. The
institution may ask for additional
documentation from an individual who had an IEP
but who was subsequently evaluated and
determined to be ineligible for services under
the Individuals with Disabilities Education
Act, including an individual determined to be
ineligible during elementary school.
``(II) Documentation describing services or
accommodations provided to the individual
pursuant to section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. 794) (commonly referred
to as a `Section 504 plan').
``(III) A plan or record of service for the
individual from a private school, a local
educational agency, a State educational agency,
or an institution of higher education provided
in accordance with the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101 et
seq.).
``(IV) A record or evaluation from a relevant
licensed professional finding that the
individual has a disability.
``(V) A plan or record of disability from
another institution of higher education.
``(VI) Documentation of a disability due to
service in the uniformed services, as defined
in section 484C(a).
``(ii) Adopt policies that are transparent and
explicit regarding information about the process by
which the institution determines eligibility for
accommodations.
``(iii) Disseminate such information to students,
parents, and faculty in an accessible format, including
during any student orientation and making such
information readily available on a public website of
the institution.
``(B) Nothing in this paragraph shall be construed to
preclude an institution from establishing less burdensome
criteria than that described in subparagraph (A) to establish
an individual as an individual with a disability and therefore
eligible for accommodations.''.
SEC. 504. AUTHORIZATION OF FUNDS FOR THE NATIONAL CENTER FOR
INFORMATION AND TECHNICAL SUPPORT FOR POSTSECONDARY
STUDENTS WITH DISABILITIES.
Section 777(a) of the Higher Education Act of 1965 (20 U.S.C.
1140q(a)) is amended--
(1) in paragraph (1), by striking ``From amounts appropriated
under section 778,'' and inserting ``From amounts appropriated
under paragraph (5),''; and
(2) by adding at the end the following:
``(5) Authorization of appropriations.--There is authorized
to be appropriated to carry out this subsection $2,000,000 for
each of fiscal years 2023 through 2027.''.
SEC. 505. INCLUSION OF INFORMATION ON STUDENTS WITH DISABILITIES.
Section 487(a) of the Higher Education Act of 1965 (20 U.S.C.
1094(a)), as amended by section 503, is further amended by adding at
the end the following:
``(31) The institution will submit, for inclusion in the
Integrated Postsecondary Education Data System (IPEDS) or any
other Federal postsecondary institution data collection effort,
key data related to undergraduate students enrolled at the
institution who are formally registered as students with
disabilities with the institution's office of disability
services (or the equivalent office), including the total number
of students with disabilities enrolled, the number of students
accessing or receiving accommodations, the percentage of
students with disabilities of all undergraduate students, and
the total number of undergraduate certificates or degrees
awarded to students with disabilities. An institution shall not
be required to submit the information described in the
preceding sentence if the number of such students would reveal
personally identifiable information about an individual
student.''.
SEC. 506. RULE OF CONSTRUCTION.
None of the amendments made by this title shall be construed to
affect the meaning of the terms ``reasonable accommodation'' or
``record of impairment'' under the Americans with Disabilities Act of
1990 (42 U.S.C. 12101 et seq.) or the rights or remedies provided under
such Act.
TITLE VI--STRENGTHENING BEHAVIORAL HEALTH BENEFITS ACT
SECTION 601. SHORT TITLE.
This title may be cited as the ``Strengthening Behavioral Health
Benefits Act''.
SEC. 602. ENFORCEMENT OF MENTAL HEALTH AND SUBSTANCE USE DISORDER
REQUIREMENTS.
(a) In General.--Section 502(a) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1132(a)) is amended--
(1) in paragraph (10), by striking ``or'' at the end;
(2) in paragraph (11), by striking the period at the end and
inserting ``; or''; and
(3) by adding at the end the following:
``(12) in any case relating to the provision of mental health
benefits and substance use disorder benefits under a group
health plan or under group health insurance coverage offered by
a health insurance issuer in connection with a group health
plan (as such terms are defined in section 733), by the
Secretary, or by a participant, beneficiary, or fiduciary, to
enforce any provision of this title or the terms of the plan or
coverage relating to such benefits against a group health plan,
a health insurance issuer, a fiduciary of a plan, or any other
person that contracts with a group health plan to provide group
health insurance coverage or assistance in the administration
of a group health plan (including a third party administrator,
managed behavioral health organization, and a pharmacy benefit
manager), if such person participates in or conceals a
violation of any requirement of part 7 relating to such
benefits or a wrongful denial of a claim for mental health
benefits or substance use disorder benefits under the terms of
the plan or coverage, to obtain appropriate relief, in addition
to any other relief otherwise available under this section,
including--
``(A) to recover all losses to participants and
beneficiaries;
``(B) to reform impermissible plan or coverage terms
and policies (as written or in operation) in accordance
with the requirements of this title and its
implementing regulations; or
``(C) to ensure the readjudication of claims and
payment of benefits in accordance with the plan or
coverage terms without any impermissible limitation,
plan or coverage term, or policy.''.
(b) Clarification of General Enforcement Authorities.--
(1) Actions brought by a participant, beneficiary, or
fiduciary.--Section 502(a)(3) of such Act (29 U.S.C.
1132(a)(3)) is amended--
(A) by striking ``or (B)'' and inserting ``(B)''; and
(B) by inserting before the semicolon at the end the
following: ``, or (C) to require re-adjudication and
payment of benefits to remedy violations of this title
notwithstanding the availability of relief under other
provisions of this title''.
(2) Actions brought by the secretary.--Section 502(a)(5) of
such Act (29 U.S.C. 1132(a)(5)) is amended--
(A) by striking ``or (B)'' and inserting ``(B)''; and
(B) by inserting before the semicolon at the end the
following: ``, or (C) to require re-adjudication and
payment of benefits to remedy violations of this title
notwithstanding the availability of relief under other
provisions of this title''.
(c) Exception to the General Prohibition on Enforcement.--Section
502(b)(3) of such Act (29 U.S.C. 1132(b)(3)) is amended--
(1) by inserting ``, and except with respect to enforcement
by the Secretary of section 712 or any other provision of part
7 in any case relating to mental health benefits and substance
use disorder benefits'' after ``under subsection (c)(9))''; and
(2) by striking ``706(a)(1)'' and inserting ``733(a)(1)''.
(d) Definitions.--Part 7 of title I of such Act (29 U.S.C. 1181 et
seq.) is amended--
(1) in section 712(e), in the matter preceding paragraph (1),
by inserting ``and section 502(a)(12)'' after ``this section'';
and
(2) in section 733--
(A) in subsection (a), in the matter preceding
paragraph (1), by inserting ``and section 502(a)(12)''
after ``this part''; and
(B) in subsection (b), in the matter preceding
paragraph (1), by inserting ``and section 502(a)(12)''
after ``this part''.
(e) Funding.--
(1) In general.--In addition to amounts otherwise available,
there are appropriated (out of any money in the Treasury not
otherwise appropriated) to the Department of Labor for fiscal
year 2023, to remain available until September 30, 2032,
$275,000,000, of which--
(A) $240,000,000 shall be for the Employee Benefits
Security Administration; and
(B) $35,000,000 shall be for the Solicitor of Labor.
(2) Use of appropriated funds.--Amounts made available under
paragraph (1) may be used for audits and investigations,
enforcement actions, litigation expenses, issuance of
regulations or guidance, and any other Departmental activities
relating to section 712 of the Employee Retirement Income
Security Act of 1974 and any other provision of title I of such
Act relating to mental health and substance use disorder
benefits.
TITLE VII--EMPLOYEE AND RETIREE ACCESS TO JUSTICE ACT
SECTION 701. SHORT TITLE.
This title may be cited as the ``Employee and Retiree Access to
Justice Act''.
SEC. 702. UNENFORCEABLE ARBITRATION CLAUSES, CLASS ACTION WAIVERS,
REPRESENTATION WAIVERS, AND DISCRETIONARY CLAUSES.
(a) In General.--Section 502 of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1132) is amended by adding at the end
the following:
``(n)(1) In any civil action brought by, or on behalf of, a
participant or beneficiary pursuant to this section or with respect to
a common law claim involving a plan or plan benefit, notwithstanding
any other provision of law--
``(A) no predispute arbitration provision shall be valid or
enforceable if it requires arbitration of a matter related to a
claim brought under this section;
``(B) no postdispute arbitration provision shall be valid or
enforceable unless--
``(i) the provision was not required by any person,
obtained by coercion or threat of adverse action, or
made a condition of participating in a plan, receiving
benefits under a plan, or receiving any other
employment, work, or any employment-related or work-
related privilege or benefit;
``(ii) each participant or beneficiary agreeing to
the provision was informed, through a paper notice, in
a manner reasonably calculated to be understood by the
average plan participant, of the right of the
participant or beneficiary under subparagraph (C) to
refuse to agree to the provision without retaliation or
threat of retaliation;
``(iii) each participant or beneficiary agreeing to
the provision so agreed after a waiting period of not
fewer than 45 days, beginning on the date on which the
participant or beneficiary was provided both the final
text of the provision and the disclosures required
under clause (ii); and
``(iv) each participant or beneficiary agreeing to
the provision affirmatively consented to the provision
in writing;
``(C) no covered provision shall be valid or enforceable, if
prior to a dispute to which the covered provision applies, a
participant or beneficiary undertakes or promises not to
pursue, bring, join, litigate, or support any kind of
individual, joint, class, representative, or collective claim
available under this section in any forum that, but for such
covered provision, is of competent jurisdiction;
``(D) no covered provision shall be valid or enforceable, if
after a dispute to which the covered provision applies arises,
a participant or beneficiary undertakes or promises not to
pursue, bring, join, litigate, or support any kind of
individual, joint, class, representative, or collective claim
under this section in any forum that, but for such covered
provision, is of competent jurisdiction, unless the covered
provision meets the requirements of subparagraph (B); and
``(E) no covered provision related to a plan other than a
multiemployer plan shall be valid or enforceable that purports
to confer discretionary authority to any person with respect to
benefit determinations or interpretation of plan language, or
to provide a standard of review of such determinations or
interpretation by a reviewing court in an action brought under
this section that would require anything other than de novo
review of such determinations or interpretation.
``(2) In this subsection--
``(A) the term `covered provision' means any document,
instrument, or agreement related to a plan or plan benefit,
regardless of whether such provision appears in a plan document
or in a separate agreement;
``(B) the term `predispute arbitration provision' means a
covered provision that requires a participant or beneficiary to
arbitrate a dispute related to the plan or an amendment to the
plan that had not yet arisen at the time such provision took
effect;
``(C) the term `postdispute arbitration provision' means a
covered provision that requires a participant or beneficiary to
arbitrate a dispute related to the plan or an amendment to the
plan that arose before the time such provision took effect; and
``(D) the term `retaliation' means any action in violation of
section 510.
``(3)(A) Any dispute as to whether a covered provision that requires
a participant or beneficiary to arbitrate a dispute related to a plan
is valid and enforceable shall be determined by a court, rather than an
arbitrator, regardless of whether any contractual provision purports to
delegate such determinations to the arbitrator and irrespective of
whether the party resisting arbitration challenges the arbitration
agreement specifically or in conjunction with other terms of the
contract containing such agreement.
``(B) For purposes of this subsection, a dispute shall be considered
to arise only when a plaintiff has actual knowledge (within the meaning
of such term in section 413) of a breach or violation giving rise to a
claim under this section.''.
(b) Regulations.--The Secretary of Labor may promulgate such
regulations as may be necessary to carry out the amendment made by
subsection (a), including providing for the form and content of notices
required pursuant to such amendment.
SEC. 703. PROHIBITION ON MANDATORY ARBITRATION CLAUSES, CLASS ACTION
WAIVERS, REPRESENTATION WAIVERS, AND DISCRETIONARY
CLAUSES.
Section 402 of the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1102) is amended by adding at the end the following:
``(d)(1) No covered person may--
``(A) require participants or beneficiaries to agree to a
predispute arbitration provision as a condition for
participation in, or receipt of benefits under, a plan;
``(B) agree to a postdispute arbitration provision with a
participant or beneficiary with respect to a plan or plan
benefit unless the conditions of clauses (i) through (iv) of
section 502(n)(1)(B) are satisfied with respect to such
provision; or
``(C) agree to any other covered provision with respect to a
plan or plan benefit under any circumstances under which such
provision would not be valid and enforceable under
subparagraphs (C) through (E) section 502(n)(1).
``(2) In this subsection--
``(A) the term `covered person' means--
``(i) a plan;
``(ii) a plan sponsor;
``(iii) an employer; or
``(iv) a person engaged by a plan for purposes of
administering or operating the plan; and
``(B) the terms `covered provision', `predispute arbitration
provision' and `postdispute arbitration provision' have the
meanings given such terms in section 502(n)(2).''.
SEC. 704. EFFECTIVE DATE.
(a) In General.--The amendments made by sections 702 and 703 shall
take effect on the date of enactment of this Act and shall apply with
respect to any dispute or claim that arises or accrues on or after such
date, including any dispute or claim to which a provision predating
such date applies, regardless of whether plan documents have been
updated in accordance with such amendments.
(b) Enforcement With Respect to Plan Document Updates.--
Notwithstanding subsection (a), no person shall be deemed to be in
violation of such amendments on account of plan documents that have not
been updated in accordance with such amendments until after the
beginning of the first plan year that begins on or after the date that
is 1 year after the date of enactment of this Act, provided that such
person acts in accordance with such amendments during the period in
which the plan documents have not been updated.
Purpose and Summary
The purpose of H.R. 7780, the Mental Health Matters Act, is
to improve access to behavioral health services for children,
students, and workers. H.R. 7780 responds to the growing
behavioral health needs of communities across the country by
investing in access to behavioral health services, equipping
schools to better respond to the needs of students, and
improving access to behavioral health benefits in job-based
health coverage.
Committee Action
116TH CONGRESS
On February 6, 2019, the Committee held a hearing titled
``Examining Threats to Workers with Preexisting Conditions''
which discussed in part mental health benefits. The Committee
heard testimony from: Ms. Sabrina Corlette, Research Professor
with the Center on Health Insurance Reforms, Georgetown
University Health Policy Institute, Washington, D.C.; Mr. Chad
Riedy, Alexandria, VA; Ms. Grace-Marie Turner, President, Galen
Institute, Paeonian Springs, VA; and Dr. Rahul Gupta, Senior
Vice President and Chief Medical and Health Officer, March of
Dimes, Arlington, VA.
On September 11, 2019, the Early Childhood, Elementary, and
Secondary Education (ECESE) Subcommittee held a hearing titled
``The Importance of Trauma-Informed Practices in Education to
Assist Students Impacted by Gun Violence and Other
Adversities'' which discussed the trauma students bring to and
experience in school, and how it effects their behavioral
health and school performance. The Committee heard testimony
from: Dr. Nadine Burke Harris, Surgeon General for the State of
California, San Francisco, CA; Dr. Ingrida Barker, Associate
Superintendent, McDowell County Schools, Welch, WV; Ms. Joy
Hofmeister, State Superintendent of Public Instruction,
Oklahoma State Department of Education, Oklahoma City, OK; and
Dr. Janice K. Jackson, Chief Executive Officer, Chicago Public
Schools, Chicago, IL.
On June 22, 2020, the Committee held a hearing titled
``Inequities Exposed: How COVID-19 Widened Racial Inequities in
Education, Health, and the Workforce'' on how existing
disparities in health and education fields have been
exacerbated by the COVID-19 pandemic. The Committee heard
testimony from Dr. Camara P. Jones, Adjunct Professor, Rollins
School of Public Health at Emory University; Senior Fellow and
Adjunct Associate Professor, Morehouse School of Medicine; Past
President, American Public Health Association, Atlanta, GA; Dr.
Valerie Rawlston Wilson, Director, Program on Race, Ethnicity,
and the Economy, Economic Policy Institute, Silver Spring, MD;
Mr. Avid Roy, Co-Founder and President, The Foundation for
Research on Equal Opportunity, Austin, TX; and Mr. John B.
King, Jr., President and CEO, The Education Trust, Washington,
D.C.
117TH CONGRESS
On March 25, 2021, the Early Childhood, Elementary, and
Secondary Education (ECESE) Subcommittee held a hearing titled
``Lessons Learned: Charting the Path to Educational Equity
Post-COVID-19'' to examine how the COVID-19 pandemic has
impacted communities and discuss the most effective methods of
ensuring the nation's public schools reopen and recover
equitably. The Subcommittee heard testimony from Mr. Mark
Morial J.D., President and Chief Executive Officer, National
Urban League, New York, NY; Mrs. Jennifer Dale, Parent, Lake
Oswego, OR; Selene Almazan, Esq., Legal Director, Council of
Parent Attorneys and Advocates, Inc., Towson, MD; and Alberto
Carvalho, Superintendent of Schools, Miami-Dade County Public
Schools, Miami, FL.
On April 15, 2021, the Subcommittee on Health, Employment,
Labor, and Pensions (HELP Subcommittee) held a hearing titled
``Meeting the Moment: Improving Access to Behavioral and Mental
Health Care'' to examine barriers to access to behavioral
health care, particularly limited coverage of mental health and
substance use disorder treatment and the importance of
improving enforcement of mental health parity laws. The
Subcommittee heard testimony from Dr. Brian Smedley, Chief of
Psychology in the Public Interest, American Psychological
Association, Washington, DC; Dr. Christine Yu Moutier, Chief
Medical Officer, American Foundation for Suicide Prevention,
New York, NY; Mr. James Gelfand, Senior Vice President, Health
Policy, The ERISA Industry Committee, Washington, DC; and Dr.
Meiram Bendat, Founder, Psych-Appeal, Santa Barbara, CA.
On September 9, 2021, the ECESE Subcommittee held a hearing
titled, ``Back to School: Highlighting Best Practices for
Safely Reopening Schools'' which discussed the conditions under
which schools were beginning to reopen nationally, and the
state of students and teachers returning to school. The
Subcommittee heard testimony from Dr. Jesus F. Jara,
Superintendent of Schools, Clark County School District, Las
Vegas, NV; Ms. Denise Forte, Interim Chief Executive Officer,
The Education Trust, Washington, D.C.; Mr. David Zweig,
Journalist, The Atlantic, New York Magazine, Wired Magazine,
Hudson, NY; and Dr. Ashish K. Jha, Dean & Professor of Health
Services, Policy & Practice, Brown University, Providence, RI.
On February 16, 2022, the ECESE Subcommittee held a hearing
titled ``Serving All Students: Promoting a Healthier, More
Supportive School Environment'' to discuss practices in use in
public schools that are harmful to the mental health of
students. The Subcommittee heard testimony from: Ms. Kristen
Harper, Vice President for Public Policy and Engagement, Child
Trends; Mr. Guy Stephens, Founder and Executive Director,
Alliance Against Seclusion and Restraint; Ms. Morgan Craven,
J.D., National Director of Policy, Advocacy and Community
Engagement, Intercultural Development Research Association;
and, Mr. Max Eden, Research Fellow, American Enterprise
Institute.
On March 1, 2022, the HELP Subcommittee held a hearing
titled ``Improving Retirement Security and Access to Mental
Health Benefits'' to examine issues affecting access to
benefits under private sector employee retirement and health
benefit plans, including barriers to coverage of mental health
services. The Subcommittee heard testimony from Ms. Amy Matsui,
Director of Income Security and Senior Counsel, National
Women's Law Center, Washington, DC; Ms. Karen Handorf, Senior
Counsel, Berger Montague, Alexandria, VA; Mr. Andrew Biggs,
Senior Fellow, American Enterprise Institute, Washington, DC;
and Mr. Aron Szapiro, Head of Retirement Studies and Public
Policy, Morningstar, Inc. and Morningstar Investment Management
LLC, Chicago, IL.
On May 17, 2022, Rep. Mark DeSaulnier (D-CA-11) introduced
H.R. 7780, the Mental Health Matters Act. The bill was referred
to the Committee on Education and Labor.
On May 18, 2022, the Committee considered H.R. 7780 in
legislative session and reported it favorably, as amended, to
the House of Representatives by a vote of 26 Yeas to 18 Nays.
The Committee considered the following amendments to H.R. 7780:
Rep. DeSaulnier offered an amendment in the
nature of a substitute to make conforming and technical
changes. The amendment was adopted by voice vote.
Rep. Rick Allen (R-GA-12) offered an
amendment in the nature of a substitute to strike the
bill text and replace it with a new program
administered by the Department of Education that would
award competitive grants to state educational agencies
to address the mental health needs of school. The
amendment was defeated by a vote of 17 Yeas and 26
Nays.
Rep. Mary Miller (R-IL-15) offered an
amendment to strike language regarding preparing mental
health service providers to meet the needs of LGBTQ+
students. The amendment was defeated by a vote of 17
Yeas and 26 Nays.
Rep. Allen offered an amendment to make
implementation of the Strengthening Behavioral Health
Benefits Act conditional on the Department of Labor
issuing a rule on mental health parity requirements.
The amendment also strikes the additional funding for
parity enforcement. The amendment was defeated by a
vote of 17 Yeas and 27 Nays.
Rep. Diana Harshbarger (R-TN-01) offered an
amendment to remove the bill's multiemployer benefits
plan exemption from the bill's prohibition on
discretionary clauses in employee benefit plans. The
amendment was defeated by a vote of 18 Yeas and 26
Nays.
Committee Views
Communities across the United States are grappling with a
devastating mental health crisis, which has only been
exacerbated in recent years due to two public health
emergencies--the opioid crisis and the COVID-19 pandemic.
Barriers to access to behavioral health services vary and
create complex challenges for vulnerable families, but Congress
has tools at its disposal to better support students, workers,
and communities. H.R. 7780 takes important steps to reduce the
inequities caused by these barriers and include policies and
priorities to meet the needs of our communities. Specifically,
H.R. 7780 includes language from bills championed by members of
the Committee, which are described below.
SUPPORTING THE BEHAVIORAL HEALTH NEEDS OF STUDENTS
AND YOUTH
According to a recent CDC report, every year, 20 percent of
all children are identified with a mental health condition,
while 40 percent of all children will meet criteria for a
mental health condition by age 18.\1\ Examining data from 2013
to 2019, the same report found that among adolescents aged 12-
17 years, 1 in 5 had experienced a major depressive episode.\2\
A separate CDC report highlighted the increase in poor mental
health and suicide behaviors among U.S. high school students
over roughly the last decade.\3\ Among high school students in
2019, the report found that more than 1 in 3 reported feeling
sad or hopeless, an increase of 40 percent over the 2009
figure.\4\ Equally distressing, nearly 1 in 5 high school
students in 2019 had seriously considered attempting
suicide.\5\ On the other end of the age spectrum, findings
indicate that there is evidence that even very young children
experience mental health conditions.\6\
---------------------------------------------------------------------------
\1\Rebecca Bitsko et al., Mental Health Surveillance Among
Children--United States, @013-2019, 71 Mortality & Morbidity Wkly.
Rpt., Feb. 25, 2022, at 4, https://www.cdc.gov/mmwr/
volumes/71/su/pdfs/su7102a1-H.pdf.
\2\Id. at 2.
\3\Ctrs. for Disease Control & Prevention, Youth Risk Behavior
Survey Data Summary & Trends Report: 2009-2019 6 (2019), https://
www.cdc.gov/healthyyouth/data/yrbs/pdf/YRBSDataSummaryTrendsReport2019-
508.pdf.
\4\Id. at 60-61.
\5\Id. at 62.
\6\See Ruth Shim, et al., Epidemic Rates of Child and Adolescent
Mental Health Disorders Require an Urgent Response, 149 Pediatrics 5
April 26, 2022 at 1, https://publications.aap.org/pediatrics/article/
149/5/e2022056611/184904/Epidemic-Rates-of-Child-and-Adolescent-Mental.
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Members of marginalized communities often face additional
challenges that impact mental health. Between 2009 and 2019,
lesbian, gay, and bisexual students were four times more likely
to have attempted suicide than their heterosexual peers.\7\
Focusing specifically on transgender youth, a national
quantitative cross-sectional survey published in 2020, found
they are twice as likely to experience depression, seriously
consider suicide, and attempt suicide compared to cisgender,
lesbian, gay, bisexual, queer and questioning youth.\8\ It is
important to note that LGBTQ+ identities are not in themselves
the cause of such challenges. Rather, these higher rates likely
reflect the impact of bias, discrimination, family rejection,
and other stressors.\9\ COVID-19 has placed additional
stressors on many children and young people and has
disproportionately impacted communities of color. Over 150,000
children have lost a parent or caregiver to COVID-19, and about
65 percent of all youth experiencing COVID-19 orphanhood are
children of color.\10\
---------------------------------------------------------------------------
\7\See Id. at 684.
\8\Myeshia Price-Feeney et al., Understanding the Mental Health of
Transgender and Nonbinary Youth, 66 J. of Adolescent Health 684, 689
(2020), https://www.jahonline.org/article/S1054-139X(19)30922-X/
fulltext.
\9\See, e.g., Joanna Almeida, et al., Emotional Distress Among LGBT
Youth: The Influence of Perceived Discrimination Based on Sexual
Orientation, 38 J. of Youth & Adolescence 1001-14 (2009).
\10\See, Dan Treglia, et al, Hidden Pain: Children Who Lost a
Parent or Caregiver to COVID-19 and What the Nation Can Do to Help
Them, COVID Collaborative, (Dec. 2021), https://
www.covidcollaborative.us/assets/uploads/img/HIDDEN-PAIN-FINAL.pdf;
Press Release, Ctrs. for Disease Control & Prevention, The Hidden U.S.
COVID-19 Pandemic: Orphaned Children--More than 140,000 U.S. Children
Lost a Primary or Secondary Caregiver Due to the COVID-19 Pandemic
(October 2021), https://www.cdc.gov/media/releases/2021/p1007-covid-19-
orphaned-children.html.
---------------------------------------------------------------------------
In addition to losing parents\11\ family members,\12\
children of color have been disproportionately impacted by
long-term COVID-19 complications,\13\ food insecurity,\14\
housing instability,\15\ and community violence\16\--all
factors that contribute to adverse mental health outcomes.
Improving equitable access to quality mental health services
will provide critical support to children experiencing
traumatic stress, anxiety, depression, and other mental health
conditions.\17\
---------------------------------------------------------------------------
\11\See Susan D. Hillis, et al., COVID-19-Associated Orphanhood and
Caregiver Death in the United States. Pediatrics, https://
publications.aap.org/pediatrics/article/148/6/e2021053760/183446/COVID-
19-Associated-Orphanhood-and-Caregiver-Death.
\12\Mike Stobbe, More than 120,000 U.S. kids had caregivers die
during pandemic, (October 7, 2021), Associated Press, https://
apnews.com/article/coronavirus-pandemic-science-pandemics-covid-19-
pandemic-race-and-ethnicity-72ab35ef81250e5007f5674d7e0af73d.
\13\Jason Kane, Rising number of children struggle with COVID's
effects, especially in Black and Latino communities, PBS News Hour,
(July 23, 2021), https://www.pbs.org/newshour/show/rising-number-of-
children-have-long-haul-covid-especially-in-black-and-latino-
communities.
\14\Jiying Ling, Paige Duren, Lorraine Robbins, Food Insecurity and
Mental Well-Being Among Low-Income Families During COVID-19 Pandemic,
(September 2022), American Journal of Health Promotion, https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC9014344/pdf/
10.1177_08901171221089627.pdf.
\15\U.S. Department of Housing and Urban Development, Office of
Policy Development and Research, Promoting Mental Health Through
Housing Stability, (May 13, 2022), https://www.huduser.gov/portal/
pdredge/pdr-edge-trending-053122.html.
\16\Eunice Larbi, Hannah Berendzen, et al., Substance Abuse and
Mental Health Services Administration, Coping with Community Violence
Together, (July 27, 2022), https://www.samhsa.gov/blog/coping-
community-violence-together.
\17\Cf. The Nat'l Child Traumatic Stress Network, What is Child
Traumatic Stress? (2003), https://www.samhsa.gov/sites/default/files/
programs_campaigns/childrens_mental_health/what-is-child-traumatic-
stress.pdf (highlighting the epidemic of childhood traumatic stress).
---------------------------------------------------------------------------
To highlight the urgent mental health needs of children and
youth, the American Academy of Pediatrics, the American Academy
of Child and Adolescent Psychiatry, and the Children's Hospital
Association declared a national emergency in child and
adolescent mental health in October 2021.\18\ In order to
respond to this national emergency, H.R. 7780 includes
important Committee priorities to better support our nation's
students, children, and educators during this national
emergency.
---------------------------------------------------------------------------
\18\Am. Acad. of Pediatrics, AAP-AACAP-CHA Declaration of a
National Emergency in Child and Adolescent Mental Health, (Oct. 19,
2021) https://www.aap.org/en/advocacy/child-and-
adolescent-healthy-mental-development/aap-aacap-cha-declaration-of-a-
national-emergency-in-child-and-adolescent-mental-health/.
---------------------------------------------------------------------------
Supporting Early Childhood Mental Health
H.R. 7780 includes the text of the Early Childhood Mental
Health Support Act, which was first introduced in the 116th
Congress by Rep. Mark DeSaulnier (D-CA-11), Rep. Doris Matsui
(D-CA-06) and Rep. Joe Kennedy III (D-MA-04). The bill was
reintroduced in the 117th Congress by Rep. DeSaulnier, Rep.
Matsui, and Rep. Ayanna Pressley (D-MA-07). The legislation
aims to improve access to mental health supports for both
children and staff in Head Start programs by requiring the U.S.
Department of Health and Human Services (HHS) to identify
evidence-based interventions for Head Start programs and help
Head Start agencies implement these interventions to improve
the health of children and staff.
The targeted funding and support of the Early Childhood
Mental Health Support Act comes at a critical time for Head
Start programs. The COVID-19 pandemic and opioid crisis have
taken a serious toll on students' social and emotional
development, leading to an increase in the number of children
experiencing trauma entering Head Start.\19\ As a result,
children are entering Head Start with higher needs and
contributing to stressful working conditions for staff; these
factors, coupled with low compensation, are leading to high
staff turnover.\20\ Head Start was founded to help break the
cycle of poverty and provide young children from low-income
families comprehensive services that meet their emotional,
social, health, nutritional, and educational needs.\21\
Providing access to mental health services to young children is
an important part of Head Start's work. In 2016, roughly one in
six U.S. children between the ages of two and eight years had a
diagnosed mental, behavioral, or developmental disorder.\22\
Given the life-long consequences of adverse experiences and
trauma on children, it is crucial that Congress develop
policies to improve the mental health of our nation's young
people.
---------------------------------------------------------------------------
\19\See Early Childhood & Knowledge Learning Ctr., Admin. for
Child. & Families, U.S. Dep't of Health & Hum. Svcs., Introduction to
Head Start and the Opioid Crisis, (2020) https://eclkc.ohs.acf.hhs.gov/
mental-health/article/head-start-opioid-crisis; Nat'l Head Start Assn.,
Confronting Head Start's Workforce Crisis 2-5 (2022), https://nhsa.org/
wp-content/uploads/2022/05/2022.05-Workforce-Brief.pdf?source=email.
\20\See Nat'l Head Start Assn., supra note 15, at 2-5.
\21\Early Childhood & Knowledge Learning Ctr., Admin. for Child. &
Families, U.S. Dep't of Health & Hum. Svcs. Head Start History, (2018),
https://eclkc.ohs.acf.hhs.gov/about-us/article/head-start-history.
\22\Ctrs. for Disease Control & Prevention, Data and Statistics on
Children's Mental Health, (2022), https://www.cdc.gov/
childrensmentalhealth/data.html.
---------------------------------------------------------------------------
A 2022 survey of over 900 Head Start staff states that
classrooms are overrun with children exhibiting challenging
behaviors, social-emotional needs, and trauma.\23\ The
Administration for Children and Families, the office within HHS
that administers Head Start, needs additional resources both to
address the increased need from the vulnerable populations of
children Head Start serves and to identify the best
interventions to set children on a path to school readiness and
lifelong mental health wellness. The evidence is clear: the
sooner children receive support, the more they thrive.\24\
---------------------------------------------------------------------------
\23\See Nat'l Head Start Assn., supra note 15, at 5.
\24\E.g., Ctr. on the Developing Child, Harvard University, The
Impact of Early Adversity on Children's Development, 2 (2007), https://
developingchild.harvard.edu/resources/inbrief-the-
impact-of-early-adversity-on-childrens-development/ (``While there is
no `magic age' for intervention, it is clear that, in most cases,
intervening as early as possible is significantly more effective than
waiting.'').
---------------------------------------------------------------------------
Recognizing the Need to Support Children Impacted by Trauma
Trauma is not merely a factor in the lives of young
children--it affects between half and two-thirds of all
children in the United States.\25\ Described simply by the
American Psychological Association as ``an emotional response
to a terrible event'', traumatic events may include the
experience of child abuse, community or school violence, or the
sudden loss of a loved one.\26\ According to a CDC study
analyzing the long-term effects of childhood and adolescent
traumatic experiences (also known as adverse childhood
experiences, or ACEs) on adult health, health care costs, and
life expectancy, the effects of trauma are predictive of poor
mental health across an individual's lifespan.\27\ Furthermore,
it is estimated that the social and economic costs of trauma
exposure are hundreds of billions of dollars per year.\28\
---------------------------------------------------------------------------
\25\Substance Abuse & Mental Health Svcs. Admin., Understanding
Childhood Trauma 1, (2016), https://store.samhsa.gov/sites/default/
files/d7/priv/sma16_4923_0.pdf.
\26\Am. Psych. Assn., Trauma (Sept. 13, 2022, 8:15 PM), https://
www.apa.org/topics/trauma#.
\27\See Ctrs. for Disease Control & Prevention, About the CDC-
Kaiser ACE Study, (Sept. 13, 2022, 8:24 PM) https://www.cdc.gov/
violenceprevention/aces/about.html (linking adverse childhood
experiences to increased risk of other negative health outcomes from
injury to chronic disease, infections disease, and risky behaviors
generally).
\28\Ctrs. for Disease Control & Prevention, Preventing Childhood
Adverse Experiences (ACEs): Leveraging the Best Available Evidence 7,
(2019), https://www.cdc.gov/violenceprevention/pdf/preventingACES.pdf.
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As a result of experiencing trauma, children may experience
difficulties with concentration, memory, organization, and
language skills that can make it difficult to adjust to a
classroom setting.\29\ There is also a strong correlation
between students who have experienced trauma and poor learning
outcomes.\30\ Further, teachers, school leaders, and
specialized instructional support personnel can be deeply
impacted by the traumas students bring with them into the
classroom each day and sustain secondary traumatic stress.\31\
Given the staggering reach of trauma and widespread concerns
for both student and teacher wellbeing and academic learning,
it is crucial that teachers, school leaders, paraprofessionals,
school-based mental health services providers, and other
specialized instructional support personnel are equipped to
successfully work with students who have been impacted by
trauma.
---------------------------------------------------------------------------
\29\See e.g., Kohske Ogata, Maltreatment Related Trauma Symptoms
Affect Academic Achievement Through Cognitive Functioning: A
Preliminary Examination in Japan, 5 J. of Intel. 5 (2017) https://
www.mdpi.com/2079-3200/5/4/32.
\30\Rachael D. Goodman, et al., Traumatic Stress, Socioeconomic
Status, and Academic Achievement Among Primary School Students 256,
(2012) https://www.researchgate.net/profile/Rachael-Goodman-2/
publication/232560514_Traumatic-Stress_Socioeconomic_Status_and_
Academic-Achievement_Among_Primary_School_Students/links/
0a85e538fdecdbdf10000000/Traumatic-Stress-Socioeconomic-Status-and-
Academic-Achievement-Among-Primary-School-Students.pdf.
\31\The Nat'l Child Traumatic Stress Network, Secondary Traumatic
Stress, http://www.nctsn.org/resources/topics/secondary-traumatic-
stress.
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Effective trauma-informed approaches will go beyond trauma-
sensitive teaching practices employed by a single teacher in a
classroom and will encompass school wide practices designed to
foster safe and stable environments, cultivating a space in
which students, educators, and staff members can thrive.\32\
Professional development programs on trauma-informed best
practices direct school staff to work together to identify
student needs for referral to licensed or certified school-
based mental health services providers, such as school
counselors, social workers, and psychologists. These
professional development activities also enable teachers and
school leaders to support student mental health in ways that
are effective yet appropriate given their roles.\33\
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\32\Alex Shevrin Venet, The How and Why of Trauma Informed
Teaching, Edutopia (Aug. 3, 2018), https://www.edutopia.org/article/
how-and-why-trauma-informed-teaching.
\33\See First Book, The Impact of COVID-19 on Student Mental Health
in Communities of Need, 24 (Mar. 2022) https://firstbook.org/wp-
content/uploads/2022/03/FirstBook_RI_Mental_
Health_Final.pdf?utm_source=firstbook&utm_medium=page&utm_campaign=menta
lhealth.
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Recognizing trauma's outsized role as a root cause of major
American public health issues, during the 115th Congress, Reps.
Danny K. Davis (D-IL-07) and Mike Gallagher (R-WI-08) launched
the Trauma-Informed Care Caucus in the U.S. House of
Representatives to increase congressional awareness of trauma-
informed care.\34\ Representatives Davis and Gallagher were
then joined by Senator Richard Durbin (D-NY) and Senator Lisa
Murkowski (R-AK) in introducing the Trauma-Informed Care for
Children and Families Act\35\ in both the House and Senate, to
support children who have been exposed to ACEs and other
traumas. This legislation, designed to respond to needs
revealed by a Government Accountability Office (GAO) study
requested by Senator Durbin and Rep. Davis,\36\ was the basis
for trauma-related provisions included in the Substance Use-
Disorder Prevention that Promotes Opioid Recovery and Treatment
(SUPPORT) for Patients and Communities Act. The SUPPORT
Patients and Communities Act passed the House by a bipartisan
vote of 396-14, with the support of then-Committee Chairwoman
Virginia Foxx (R-NC-05)\37\; it passed the Senate and was
enacted into law in 2018.\38\ However, the programs in SUPPORT
derived from the Trauma-Informed Care for Children and Families
Act have not yet received funding.
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\34\Press Release, Office or Rep. Mike Gallagher, Gallagher
Launches Bipartisan Trauma-Informed Care Caucus (May 21, 2018) https://
gallagher.house.gov/media/press-releases/gallagher-launches-bipartisan-
trauma-informed-care-caucus.
\35\S. 774 & H.R. 1757, 115th Cong. (2017).
\36\U.S. Gov't Accountability Off., GAO-19-388, Children Affected
by Trauma, Selected States Report Various Approaches and Challenges to
Supporting Children (2019) https://www.gao.gov/assets/gao-19-388.pdf.
\37\H.R. 6, 115th Cong., 2d sess., House Roll Call Vote #288, (June
22, 2018), https://clerk.house.gov/Votes/2018288.
\38\H.R. 6, 115th Cong., 2d sess., Senate Roll Call Vote #221,
(Oct. 3, 2018), https://www.senate.gov/legislative/LIS/roll_call_votes/
vote1152/vote_115_2_00221.htm.
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In the 116th Congress, Rep. Jahana Hayes (D-CT-05)
introduced H.R. 4835, the Supporting Trauma-Informed Education
Practices Act,\39\ which sought to provide mandatory funding
for the programs in SUPPORT derived from the Trauma-Informed
Care for Children and Families Act. H.R. 4835 was eventually
included in the Elijah E. Cummings Lower Drug Costs Now Act
(H.R. 3), which passed the House of Representatives in December
2019.\40\ In the same Congress, Reps. Davis and Gallagher
continued to champion trauma-informed care, and introduced new
legislation, H.R. 3180, the Resilience Investment, Support, and
Expansion (RISE) from Trauma Act, to increase support for
children and adults who have been exposed to trauma by building
out the trauma-informed workforce and increasing resources for
communities to support children who have experienced trauma.
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\39\H.R. 4835, 116th Cong. (2019).
\40\H.R. 3, 116th Cong., 1st sess., House Roll Call Vote #682 (Dec.
12, 2019), https://clerk.house.gov/Votes/2019682.
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In the 117th Congress, Rep. Hayes reintroduced the
Supporting Trauma-Informed Education Practices Act with several
crucial revisions, such as including early childhood education
programs as eligible entities to carry out evidence-based
trauma-informed practices, as well as adding evidence-based
programs to improve mental health and resiliency among
teachers, school leaders, and other school personnel as an
allowable use of grant funds. This was in line with
recommendations the Early Childhood, Elementary, and Secondary
Education (ECESE) Subcommittee heard from Kristen Harper, Vice
President for Policy and Engagement of Child Trends, at a
February 16, 2022 hearing who said, ``Schools'' primary
strategy should be prevention, with health, mental health, and
social services and relationship-building as schools' primary
tactics.''\41\ The Supporting Trauma-Informed Education
Practices Act was included in H.R. 7780.
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\41\Serving All Students: Promoting a Healthier, More Supportive
School Environment: Hearing Before the Subcomm. on Early Childhood,
Elementary & Secondary Educ. of the H. Comm. on Educ. & Lab., 117th
Cong. (2022).
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Based on longstanding bipartisan support for trauma-
informed practices, and previous support for the authorization
of trauma informed programs in SUPPORT, it is disappointing to
see how these practices were considered during the markup to
H.R. 7780. Under now-Ranking Member Foxx`s leadership, the
proposed Republican Amendment in the Nature of a Substitute
(ANS) to the Mental Health Matters Act entirely removed
competitive grants to increase student access to trauma-
informed support from the legislation. In fact, the Republican
ANS went so far as to strike the mere mentions of ``trauma''
and ``trauma-informed practices'' from the bill.
Finally, as a result of the SUPPORT Patients and
Communities Act`s passage in the 115th Congress, and the
longtime efforts of the Congressional Black Caucus` Emergency
Taskforce on Youth Suicide and Mental Health, an Interagency
Task Force on Trauma-Informed Care, led by the Substance Abuse
and Mental Health Services Administration (SAMHSA), was
established to ``harness the expertise, reach, and resources of
the federal government to address the impact that trauma can
have on the healthy development of children.''\42\ The
Committee looks forward to the Task Force's forthcoming report
and recommendations. Furthermore, under the Mental Health
Matters Act, initiatives, activities, and programs carried out
under the bill's Supporting Trauma-Informed Education Practices
Act provisions must reflect the best practices for trauma-
informed identification, referral and support developed by the
Task Force. The Committee is eager for these efforts to serve
as further exemplars of evidence-based trauma-informed support
services and mental health services.
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\42\Substance Abuse & Mental Health Svcs. Admin., National Strategy
for Trauma-Informed Care Operating Plan, https://www.samhsa.gov/sites/
default/files/trauma-informed-care-operating-plan.pdf.
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INVESTING IN THE SCHOOL-BASED BEHAVIORAL HEALTH WORKFORCE
Despite the increasing mental, emotional, and behavioral
health needs of children, students, and youth, only 20 percent
of children with mental, emotional, or behavioral health
disorders receive care from a specialized mental health care
provider.\43\ Among the 4.1 million adolescents ages 12-17 who
reported a major depressive episode in 2020, only 41.6 percent
received treatment, according to SAMHSA.\44\ Of those who did
receive treatment, many received access via school-based mental
health services.\45\ Students are more likely to visit school-
based health centers for mental health services than community
mental health centers.\46\ For students living in low-income
school districts, school-based mental health services may be
one of few resources available in communities with limited
access to health .
---------------------------------------------------------------------------
\43\American Academy of Child and Adolescent Psychiatry, Press
Release: Severe Shortage of Child and Adolescent Psychiatrists
Illustrated in AACAP Workforce Maps, (May 4, 2022), https://
www.aacap.org/AACAP/zLatest_News/
Severe_Shortage_Child_Adolescent_Psychiatrists_Illustrated_AACAP_Workfor
ce_Maps; See Richard Martini, et al., Best Principles for Integration
of Child Psychiatry into the Pediatric Health Home: Financing
Collaborative Care, 3 American Academy of Child and Adolescent
Psychiatry, (June 2012), https://www.aacap.org/App_Themes/AACAP/docs/
clinical_practice_center/ systems_of_care/
best_principles_for_integration_of_child_psychiatry_into_the_pediatric_h
ealth_home_2012.pdf (``Almost 20% of children in the United States
suffer from some form of a mental illness--only 20% of these children
receive treatment.'').
\44\Substance Abuse & Mental Health Svcs. Admin., Ctr. for
Behavioral Health Stats. & Quality, Key Substance Use and Mental Health
Indicators in the United States: Results from the 2020 National Survey
on Drug Use and Health, 41 (October 21, 2021), https://www.samhsa.gov/
data/sites/default/files/reports/rpt35325/NSDUHFFRPDFWHTMLFiles2020/
2020NSDUHFFR1PDFW102121.pdf.
\45\See Id. at 42-43.
\46\Michael Arenson, et al., The evidence on School-Based Center: A
Review, 6 Global Pediatric Health 1, 3-4 (2019), https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC6381423/pdf/
10.1177_2333794X19828745.pdf.
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Students of color also face additional barriers when
seeking quality mental health services. People of color in the
U.S. are more likely to delay or avoid seeking mental health
treatment,\47\ and one of the theorized reasons for this delay
is lack of access to mental health providers from diverse
backgrounds and linguistically and culturally appropriate
mental health services. While more people of color are training
to become mental health providers, racial and ethnic minorities
represent only 26 percent of psychologists under the age of 36
and 8 percent of those over age 50, according to the American
Psychological Association.\48\
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\47\Thomas G. McGuire & Jeanne Miranda, Racial and ethnic
Disparities in Mental Health Care: Evidence and Policy Implications, 3,
NIH Public Access, available at https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC3928067/.
\48\American Psychological Association. (2019). Demographics of the
U.S. Psychology Workforce. https://www.apa.org/workforce/data-tools/
demographics.
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School-based mental health services providers, which
include school counselors, social workers, and psychologists,
are trained professionals with the appropriate licensure,
certification and/or credentials to serve on the frontlines of
the student mental health crisis and meet student mental health
needs. Research has shown that school-based mental health
providers improve school climate and other positive outcomes
for students.\49\ Schools served by more school-based mental
health services providers see a host of improvements, including
increased attendance rates, lower rates of school disciplinary
incidents,\50\ as well as improved academic achievement and
career readiness,\51\ and improved graduation rates.\52\
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\49\See, e.g., Richard E. Cleveland & Christopher A. Sink, Student
Happiness, School Climate, and School Improvement Plans: Implications
for School Counseling Practice, 21 Professional School Counselling 1-10
(2018); Thomas J. Hernandez & Susan R. Seem. A Safe School Climate: A
Systemic Approach and the School Counselor, 7 Professional School
Counseling 256-62 (2004); Joseph G. Kosciw, et al., Who, what, where,
when, and why: Demographic and ecological factors contributing to
hostile school climate for lesbian, gay, bisexual, and transgender
youth, 38 Journal of Youth Adolescent 976-88 (2009).
\50\Richard T. Lapan et al., Connecticut professional school
counselors: College and career counseling services and smaller ratios
benefit students, 16 Professional School Counseling 117-124. (2012).
\51\Richard T. Lapan, et al., The impact of more fully implemented
guidance programs on the school experiences of high school students: A
statewide evaluation study, 75 J. of Counseling & Development, 292-302
(1997).
\52\Kevin Tan, et al., The impact of school social workers on high
school freshman graduation among the one hundred largest school
districts in the United States, 39 Sch. Soc. Work J., 1-14 (2015).
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As part of the its 2015-16 U.S. Department of Education's
Civil Rights Data Collection (CRDC), the Department's Office
for Civil Rights (OCR) required, for the first time, that all
public schools report the number of social workers, nurses, and
psychologists employed, to supplement existing data collection
on the number of school counselors.\53\ A comparison of the
resulting CRDC data and recommended student to school-based
mental health services provider ratios indicate an concerning
shortage of such professionals in schools. The 2015-16 data
revealed that only two states on average met the 250:1 student-
to-social worker ratio recommended by the School Social Work
Association of America (SSWAA).\54\ Likewise, only three states
met the 250:1 student-to-school counselor ratio recommended by
the American School Counselor Association.\55\ For the 2020-21
school year, the national average ratio was 415 students to
every one school counselor. Further, the National Association
of School Psychologists (NASP) recommends a 500:1 student-to-
school psychologist ratio in order to provide comprehensive
school-based psychological services.\56\ However, the actual
national ratio for the 2020-21 school year was 1,211 students
to one school psychologist.\57\ Schools are entering the
student mental health crisis woefully understaffed.
---------------------------------------------------------------------------
\53\U.S. Dept. of Educ., Civil Rights Data Collection, Master List
of 2015-16 Definitions, https://ocrdata.ed.gov/assets/downloads/CRDC-
Definitions-2015-16.pdf.
\54\Pooja Patel & Melissa Clinedinst, State-By-State Student-To-
Counselor Ratio Maps By School District, Nat'l Ass'n, for Coll.
Admission Counseling, ii, (2021) https://www.nacacnet.org/globalassets/
documents/publications/research/researchstateratiosreport.pdf.
\55\ASCA National Model A Framework For School Counseling Programs,
https://schoolcounselor.org/getmedia/bd376246-0b4f-413f-b3e0-
1b9938f36e68/ANM-executive-summary-4th-ed.pdf.
\56\Nat'l Ass'n of Sch. Psychs., Shortage of School Psychologists,
https://www.nasponline.org/research-and-policy/policy-priorities/
critical-policy-issues/shortage-of-school-psychologists#::text=
NASP%20recommends%20a%20ratio%20of,a%20ratio%20of%201%3A5000.
\57\Id.
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The Committee recognizes the pronounced need schools face
to respond to COVID-19-related stress and trauma as well as
existing and projected student needs for mental health
services. Thanks to passage of the American Rescue Plan Act
(ARPA), schools have more resources to address student mental
health.\58\ Congress provided more than $120 billion to K-12
schools through the ARPA Elementary and Secondary School
Emergency Relief (ESSER) Fund. This legislation required that
states target at least 20 percent to address learning loss and
efforts to address the disproportionate impact of the COVID-19
pandemic on underserved student groups' academic, social and
emotional needs.\59\ Local educational agencies may use ARPA
funds to provide mental health services and supports.\60\ As of
March 2022, with the help of ESSER funds, schools have already
seen a 65 percent increase in social workers, and a 17 percent
increase in counselors.\61\ But we must do more.
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\58\Pub. L. No. 117-2, 135 Stat. 4 (2021).
\59\Id. at Sec. 2001(a), (e)(1).
\60\Id.
\61\Fact Sheet, The White House, President Biden to Announce
Strategy to Address Our National Mental Health Crisis, As Part of Unity
Agenda in his First State of the Union, (Mar. 01, 2022), https://
www.whitehouse.gov/briefing-room/statements-releases/2022/03/01/fact-
sheet-
president-biden-to-announce-strategy-to-address-our-national-mental-
health-crisis-as-part-of-unity-agenda-in-his-first-state-of-the-union/.
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Building and Sustaining Pipeline of School-Based Mental Health Service
Providers
The Committee believes strengthening school-based mental
health programs is necessary to respond to the needs that have
been present and documented since at least 2015-16, and to
respond to added stress and trauma brought on by the COVID-19
and the opioid crisis. H.R. 7780 is designed to meet both the
existing and projected student needs for mental health services
by investing in the pipeline of school-based mental health
services providers and targeting funding for the recruitment
and retention of providers. These policies are aligned with
recommendations from NASP for addressing the shortage of school
psychologists, recommendations which could be adapted and
applied across school-based mental health services
professions.\62\ These recommendations include a focus on
recruitment, more opportunities for re-specialization within
graduate programs, and a focus on retention of currently
practicing school psychologists.\63\ H.R. 7780 also allows for
models that have proven successful to increase the teacher
workforce to be used to increase the school mental health
workforce. At least one state has shown that by collaborating
with school psychology faculty and professionals from two
different educational service agencies the state could
successfully develop a ``Grow Your Own'' program for mental
health services personnel.\64\
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\62\Nat'l Ass'n of Sch. Psychs., supra note 56.
\63\Id.
\64\Stephanie L. Schmitz et al., Increasing School-Based Mental
Health Services with a ``Grow Your Own'' School Psychology Program, 26
Contemporary Sch. Psych. 22-33 (2022) https://link.springer.com/
article/10.1007/s40688-020-00348-z.
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To address the outlined student mental health needs, Title
II of the Mental Health Matters Act includes language which
would expand the pipeline of school-based mental health
services providers by establishing a competitive grant program
supporting partnerships between eligible institutions of higher
education and high-need local education agencies. The
legislative language for this grant program is from the
bipartisan Increasing Access to Mental Health in Schools Act
(H.R. 3572), introduced by Rep. Judy Chu (D-CA-27) and Rep.
Brian Fitzpatrick (R-PA-01), with Committee member Rep. Hayes
as an original co-sponsor.
Crucially, Title II of the Mental Health Matters Act
recognizes the importance of recruiting a diverse school-based
mental health services provider workforce by including a new
priority for partnerships which include Historically Black
Colleges and Universities (HBCUs), Minority-Serving
Institutions (MSIs) and Tribally Controlled Colleges and
Universities (TCCUs). Title II also allows for grant funds to
be used to increase the diversity of school-based mental health
services providers. It also requires graduates of these
programs who wish to serve in schools to be trained to meet the
needs of LGBTQ+ students as well as students who have been
victims of or witnesses to human trafficking. It is worth
noting that in FY2019, the U.S. Department of Education used a
portion of School Safety National Activities funds to award the
first (and thus far only) cohort of Mental Health Demonstration
Grant Program funds, which have a similar aim to that of Title
II's proposed grant program. However, this program has not been
authorized in statute.
Title III of the Mental Health Matters Act includes
language which would direct the U.S. Department of Education to
award grants to state educational agencies to recruit and
retain school-based mental health services providers at high-
need public elementary and secondary schools. This language is
from the Elementary and Secondary School Counseling Act (H.R.
6214), introduced by Reps. Katherine Clark (D-MA-05), with
Committee member Rep. Jahana Hayes as an original co-sponsor.
Title III also updates the Elementary and Secondary
Counseling Act to include crucial reservations for schools
operated or funded by the Bureau of Indian Education (BIE) and
schools in the Outlying Areas to ensure these schools have
resources necessary to hire and retain school counselors. Title
III also requires that as a condition of receiving funding,
states provide an assurance to the Secretary of Education that
the state will award subgrants to LEAs that serve a significant
number of high-need schools. It is worth noting that ED awarded
six state educational agencies School-Based Mental Health
Services Grants, with purposes aligned with Title III of the
Mental Health Matters Act, in FY2020 after Congress increased
appropriations for the School Safety National Activities
program and directed that $10 million be used to increase the
number of counselors, social workers, psychologists, or other
service providers who provide school-based mental health
services to students. However, this Demonstration Grant program
has not yet been authorized in statute.\65\
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\65\The Committee supports efforts to increase resources and
support for the school-based mental health workforce via
congressionally-directed funding, or through existing authority at the
Department of Education. But passage of the Mental Health Matters Act
lays the groundwork for a robust authorization of programs to address
the dire need in our schools for mental health services professionals.
In doing so, the Committee recognizes it is building off of policies
and practices undertaken by the School-Based Mental Health Services
Demonstration Grant program and the Mental Health Services Professional
Grant program, and hopes that if made in to law authorizations in H.R.
7780 to expand the school-based mental health workforce would receive
robust appropriations in line with the requisite need.
---------------------------------------------------------------------------
With the Mental Health Matters Act including such bold
attempts to increase the much-needed school mental health work
force, it is unfortunate that the Republican ANS aimed to
significantly gut key provisions of both Title II and Title
III. Had it passed, the Republican ANS would have removed key
targeting provisions, ones the Committee believes are necessary
to support the mental health needs of students in high-poverty
schools and school districts. It is also worth noting that the
Republican ANS would have weakened provisions to build the
pipeline of certified and licensed mental health professionals
and removed references to the specific professions constituting
school-based mental health services providers, and requirements
for their appropriate licensure, certification, and
credentialing.
Further, flying in the face of growing evidence that LGBTQ+
students face disproportionate levels of trauma, an amendment
offered at markup by Rep. Miller proposed to remove all mention
of LGBTQ+ students from the bill. LGBTQ+ students, and the
unique traumas they face trying to live their lives, cannot be
erased; removing all traces of LGBTQ+ students from the Mental
Health Matters Act would in no way address the pronounced and
disproportionate trauma LGBTQ+ students face, nor would it
resolve the barriers they face in accessing care to deal with
that trauma.
Finally, in discussing trauma and school-based mental
health services, the Committee must address the trauma produced
by the nationwide epidemic of gun violence in and around our
schools and its effect on the mental health needs of students.
On May 25, 2022, just one week after the Committee marked up
the Mental Health Matters Act, 19 students and two teachers
were tragically slain by a gunman in Uvalde, Texas, in the
second-deadliest school shooting in U.S. history.\66\ The grief
and trauma experienced by students and the wider community in
Uvalde has resonated nationwide, and demands both immediate
support by school-based mental health services providers, as
well as further investments in consistent supports, which
acknowledge the ongoing mental health needs resulting from mass
shootings such as school shootings.\67\ The Committee would be
remiss not to state that research has shown that most people
with mental illness are not violent.\68\ In fact, individuals
with mental illness are more likely to be victims rather than
perpetrators of violence.\69\ Therefore, while it is important
to increase access to mental health services, such actions
should not be seen as a substitute for much needed common-sense
gun control policies.
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\66\See generally, e.g., Uvalde School Shooting, Texas Tribune,
(2022), https://www.texastribune.org/series/uvalde-texas-school-
shooting/ (offering compendium of stories about the shooting and
aftermath).
\67\Amy Novotney, Am. Psych. Assn., What Happens to the Survivors,
(Sept. 2018), https://www.apa.org/monitor/2018/09/survivors.
\68\Tori DeAngelis, Am. Psych. Assn., Mental illness and violence:
Debunking myths, addressing realities, (Apr. 2021), https://
www.apa.org/monitor/2021/04/ce-mental-illness.
\69\Id.
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SUPPORTING STUDENTS WITH DISABILITIES
Section 504 of the Rehabilitation Act of 1973 (Section
504)\70\ and Title II of the Americans with Disabilities Act
(ADA)\71\ provide that college students with disabilities are
entitled to accommodations that eliminate barriers to equal
access to learning opportunities. Although disability is fairly
prevalent among college students--approximately 19 percent of
all enrolled undergraduates reported having a disability\72\--
only a third of these students inform their college or seek any
accommodations.\73\ Research indicates that graduation rates
for these students are lower than their non-disabled peers, and
failure to seek accommodations may play a part in that gap.\74\
Reducing impediments to students receiving disability
accommodations will help students with disabilities succeed in
post-secondary education.
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\70\29 U.S.C. Sec. 794.
\71\42 U.S.C. Sec. 12132.
\72\U.S. Dept. of Educ. Institute of Educ. Sciences, Nat'l Ctr. for
Educ. Stats, https://nces.ed.gov/fastfacts/display.asp?id=60 (last
visited May, 25th, 2022).
\73\U.S. Dept. of Educ. Institute of Educ. Sciences, Nat'l Ctr. for
Educ. Stats, https://nces.ed.gov/whatsnew/press_releases/4_26_2022.asp
(last visited May, 25th, 2022).
\74\Fact Sheet, Postsecondary Nat'l Pol'y Inst., Students with
Disabilities in Higher Education, https://pnpi.org/students-with-
disabilities-in-higher-education/.
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Under current law, in order to receive accommodations
(e.g., extended time on tests, note-taking services, permission
to record classes), students must first demonstrate that they
have a disability that is covered by section 504 and the ADA.
Once that is established, the school and the student must
determine a reasonable accommodation that enables the student
to perform the essential functions of the academic program or
to enjoy the equal benefits of the program. While many students
with disabilities receive accommodations throughout their
elementary and secondary education, when they transition to
post-secondary education, they must navigate new requirements
to document their disability. Schools generally require the
diagnosis of a disability to be `recent', within six months for
psychiatric disabilities.\75\ This is true even if when student
has a lifelong disability and received services through the
Individuals with Disabilities Education Act or accommodations
under section 504 when they were in elementary and secondary
school. Evaluations for learning disabilities can be especially
costly and time-consuming for students and their families, and
long waitlists to even receive an evaluation and diagnosis can
lead to delays or to the student abandoning the effort
altogether and not receiving the needed accommodation.\76\
---------------------------------------------------------------------------
\75\Ass'n on Higher Educ. & Disability, Documentation Guidelines,
Psychiatric Disorders, (2008) https://www.ahead.org/about-ahead/about-
overview/affiliates/connecticut/documentation
#H.
\76\Nat'l Ctr. for Learning Disabilities, Life with LD: Navigating
the Transition to College, https://www.ncld.org/news/policy-and-
advocacy/life-with-ld-navigating-the-transition-to-college/.
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To help, H.R. 7780 includes the text of the Respond,
Innovate, Support, and Empower (RISE) Act--first introduced in
the Senate in the 114th Congress by Senator Bob Casey (D-PA)
and first introduced in the House in the 115th Congress by Rep.
Suzanne Bonamici (D-OR-01) and a bipartisan group of
legislators in order to help students with disabilities,
including mental health disabilities, who are transitioning
from high school to college.
As incorporated in H.R. 7780, the RISE Act makes it easier
for college students with disabilities to access the reasonable
accommodations they need and to which they are legally
entitled. Under H.R. 7780, colleges and universities would be
required to accept a student's existing Individualized
Education Plan (IEP), 504 plan or other qualifying
documentation from their elementary or secondary school as
sufficient to establish that the student has a disability which
may need accommodation. Additionally, covered institutions must
adopt policies that are transparent and detailed regarding the
process for determining eligibility for accommodations and make
that information available in an accessible format during
orientation and on the college or university's public-facing
website. To facilitate students receiving accommodations, H.R.
7780 authorizes $10 million in funding over five years for the
National Center for College Students with Disabilities (NCCSD).
The NCCSD provides students and families with information about
available disability services and offers faculty training and
resources on best practices to support students with
disabilities. Finally, the legislation requires covered
institutions to report on the number of students with
disabilities being served, the accommodations provided, and the
outcomes for these students.
ENSURING ACCESS TO MENTAL HEALTH AND SUBSTANCE USE DISORDER BENEFITS
Access to behavioral health care--including treatment for
both mental health and substance use disorder--is an important
part of maintaining overall health and wellness. Mental
illnesses are closely linked to physical health problems, such
as diabetes, stroke, and heart disease.\77\ Individuals living
with serious mental illness experience significantly higher
mortality rates than the overall population, dying as much as
25 years earlier, usually as a result of treatable
conditions.\78\ With respect to substance use disorder, a
treatable behavioral health condition, SAMHSA at HHS has found
that about 40.3 million people aged 12 or older had a substance
use disorder within the past year, and more than four out of
five Americans who need treatment for substance misuse do not
receive it.\79\ As the COVID-19 pandemic continues to
underscore the importance of equitable access to quality
behavioral health care services, the number of individuals
reporting symptoms of depression or anxiety increased from 11
percent to 41.1 percent during the height of the pandemic.\80\
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\77\Ctrs. for Disease Control & Prevention, Mental Health: Learn
About Mental Health, https://www.cdc.gov/mentalhealth/learn/index.htm.
\78\Joe Parks, et al., Morbidity and Mortality in People with
Serious Mental Illness, National Association of State Mental Health
Program Directors (NASMHPD) Medical Directors Council at 4 (Oct. 2006),
https://www.nasmhpd.org/sites/default/files/
Mortality%20and%20Morbidity%20 Final%20Report%208.18.08_0.pdf; see also
Nancy H. Liu et al., Excess Mortality in Persons with Severe Mental
Disorders: A Multilevel Intervention Framework and Priorities for
Clinical Practice, Policy and Research Agendas, 16 World Psychiatry 30
(Jan. 26, 2017), https://onlinelibrary.wiley.com/doi/full/10.1002/
wps.20384.
\79\Press Release, SAMHSA Releases 2020 National Survey on Drug Use
and Health, Substance Abuse & Mental Health Svcs. Admin, (Oct. 26,
2021), https://www.samhsa.gov/newsroom/press-announcements/
202110260320.
\80\Nirmita Panchal et al., The Implications of COVID-19 for Mental
Health and Substance Use, Kaiser Family Foundation (Feb. 10, 2021),
https://www.kff.org/coronavirus-covid-19/issue-brief/the-implications-
of-covid-19-for-mental-health-and-substance-use/.
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Having affordable health coverage is critical to accessing
care in America. With the nation's increasing behavioral health
needs, it is imperative to ensure that health coverage
adequately covers behavioral health. The long-standing tenet of
``parity'' in behavioral health care refers to the principle
that coverage of mental health and substance use disorder (MH/
SUD) services should be no more restrictive than coverage of
medical and surgical health services. Congress has taken
several steps to improve parity, beginning in 1996 with the
Mental Health Parity Act\81\ (MHPA), which provided that annual
or lifetime dollar limits for mental health benefits could not
be more restrictive than those imposed on medical and surgical
benefits. In 2008, the Paul Wellstone and Pete Domenici Mental
Health Parity and Addiction Equity Act\82\ (MHPAEA) greatly
expanded the parity protections existing in law. In general,
MHPAEA requires that financial requirements and treatment
limitations imposed by a group health plan or health insurance
issuer on mental health or substance use disorder benefits must
be in parity with the treatment limitations that apply to
medical and surgical benefits. The requirements of MHPAEA and
its implementing regulations extend parity to SUD services and
apply to both quantitative treatment limitations (QTLs), such
as co-payments, as well as non-quantitative treatment
limitations (NQTLs), such as step therapy, prior authorization,
formulary design, or medical management.\83\ These requirements
are applicable to private sector employer-sponsored plans
through amendments made by MHPAEA to the Employee Retirement
Income Security Act (ERISA).\84\
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\81\Pub. L. No. 104-204, title VII (1996).
\82\Pub. L. No. 110-343, div. C, title V, subtitle B (2008).
\83\See Colleen L. Barry et al., A Political History of Federal
Mental Health and Addiction Insurance Parity, 88 Milbank Quarterly 404,
406-407 (2010).
\84\29 U.S.C. 1185a.
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The Patient Protection and Affordable Care Act\85\ (ACA)
also advanced parity further in several respects. Most
directly, the ACA applied MHPAEA to the individual market\86\
and qualified health plans,\87\ and further required that non-
grandfathered plans in the individual and small group markets
cover essential health benefits, including treatment for MH/SUD
services.\88\ Notably, several of the ACA's consumer
protections, including the preventive services mandate\89\ and
the prohibitions on annual and lifetime limits,\90\ also apply
to MH/SUD services, thereby extending additional protections to
the large group market. Congress has taken additional steps to
improve parity in recent years. In 2016, the 21st Century Cures
Act\91\ mandated that federal agencies issue additional
guidance, develop an action plan to improve enforcement, and
audit plans that commit five or more parity violations. The
Consolidated Appropriations Act, 2021\92\ enhanced audit
requirements and required health plans and issuers to perform
comparative analyses of NQTLs and make such analyses available
to regulators upon request.
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\85\Pub. L. No. 111-148 (as amended by Pub. L. No. 111-152).
\86\42 U.S.C. Sec. 300gg-26(c)(4)(A).
\87\42 U.S.C. Sec. 18031(j).
\88\42 U.S.C. Sec. 18022.
\89\42 U.S.C. Sec. 300gg-13.
\90\42 U.S.C. Sec. 300gg-11.
\91\Pub. L. No. 144-255, title X (2016).
\92\Pub. L. No. 116-260, div. BB, title II (2020).
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Despite progress, parity in health benefits remains a
challenge--made all the more pressing by the COVID-19 public
health emergency and the associated stressors that the pandemic
has placed on communities around the country.
H.R. 7780 Provides the Department of Labor Clearer Authority to Enforce
Laws to Protect Access to Mental Health and Substance Use
Disorder Benefits for Americans with Job-Based Coverage
On January 25, 2022, the Department of Labor (DOL), in
conjunction with the Departments of Health and Human Services
(HHS) and the Treasury, issued a report to Congress (2022
Report) about implementation and enforcement of MHPAEA.\93\
Notably, the 2022 Report summarized findings of widespread
noncompliance with MHPAEA based on reviews conducted by the
Departments. The 2022 Report also included several
recommendations for legislative action that would bolster
efforts to enforce the law. In part, it recommended that
Congress amend ERISA to (1) expressly provide the DOL with the
authority to directly pursue parity violations caused by health
insurance issuers, and (2) to ``expressly provide that
participants and beneficiaries, as well as the DOL on their
behalf, may recover amounts lost by participants and
beneficiaries who had their claims denied'' due to parity
violations, ensuring that they are made whole.\94\
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\93\2022 MHPAEA Report to Congress: Realizing Parity, Reducing
Stigma, and Raising Awareness: Increasing Access to Mental Health and
Substance Use Disorder Coverage, available at https://www.dol.gov/
sites/dolgov/files/EBSA/laws-and-regulations/laws/mental-health-parity/
report-to-congress-2022-realizing-parity-reducing-stigma-and-raising-
awareness.pdf.
\94\Id. at 51-2. The report also recommended that the DOL be given
authority assess civil monetary penalties for MHPAEA noncompliance.
Representative Norcross introduced H.R. 1364, the ``Parity Enforcement
Act of 2021'' earlier in the 117th Congress that would provide the DOL
with this authority if enacted.
---------------------------------------------------------------------------
The 2022 Report is not the first instance that legislative
action has been recommended to authorize the DOL to directly
enforce parity requirements against issuers. The Health,
Employment, Labor, and Pensions (HELP) Subcommittee heard
testimony from witnesses in multiple hearings arguing that this
would be an effective way of bolstering DOL's enforcement
authority and incentivizing more widespread compliance with the
law.\95\ The same recommendation was also made during the Trump
Administration by the President's Commission on Combatting Drug
Addiction and the Opioid Crisis, chaired by then-Governor Chris
Christie (R-NJ).\96\
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\95\Improving Retirement Security and Access to Mental Health
Benefits: Hearing Before the Subcomm. On Health, Employment, Labor, and
Pensions, 117th Cong. (2022) (statement of Karen Handorf, Senior
Counsel, Berger Montague P.C.) at 5, available at https://
edlabor.house.gov/download/handordkarentestimony030122; Meeting the
Moment: Improving Access to Behavioral and Mental Health Care: Hearing
Before the Subcomm. On Health, Employment, Labor, and Pensions, 117th
Cong. (2021) (statement of Dr. Meiram Bendat, Founder, Psych Appeal,
Inc.) at 7, available at https://edlabor.house.gov/download/
moutierchristinetestimony041521.
\96\Final Report from The President's Commission On Combating Drug
Addiction And The Opioid Crisis, at 72, available at https://
trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/images/
Final_Report_Draft_11-915-2017.pdf.
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On May 13, 2022, Rep. Joe Courtney (D-CT-02) introduced
H.R. 7767, the Strengthening Behavioral Health Benefits Act
with Committee Member Rep. Donald Norcross (D-NJ-01) as an
original cosponsor. The Strengthening Behavioral Health
Benefits Act amends ERISA to adopt the recommendations from the
2022 Report and also provides $275 million over ten years in
mandatory funding to support oversight, compliance, and
enforcement efforts by DOL. The provisions of the Strengthening
Behavioral Health Benefits Act are incorporated into Title VI
of the Mental Health Matters Act.
The Mental Health Matters Act provides meaningful authority
to DOL to address some of the legal loopholes that continue to
deny full parity between MH/SUD services and medical and
surgical health services. DOL is responsible for enforcing
ERISA, including the mental health parity provisions, with
respect to more than 2 million private employer-sponsored
plans.\97\ About one-third of individuals who receive job-based
health benefits are covered by an insured plan.\98\ For insured
plans, benefits offered by the plan are funded through a group
insurance policy sold to the plan by a health insurance issuer
and the issuer is also responsible for processing claims and
administering the plan. The other two-thirds of these
individuals are covered by a self-funded plan.\99\ For self-
funded plans, the employer or other plan sponsor retains the
financial responsibility for paying benefits under the plan,
but generally contracts with a health insurance issuer or other
administrative service provider to process claims and
administer the plan. Most employers with self-insured plans
purchase prototype plans from the same issuers that offer
identical coverage to insured plans.\100\
---------------------------------------------------------------------------
\97\U.S. Department of Labor, FY 2023 Congressional Budget
Justification Employee Benefits Security Administration (2022), https:/
/www.dol.gov/sites/dolgov/files/general/budget/2023/CBJ-2023-V2-01.pdf.
\98\Employer Health Benefits 2021 Annual Survey, Kaiser Family
Foundation, November 10, 2021 at 9, available at https://www.kff.org/
health-costs/report/2021-employer-health-benefits-
survey/.
\99\Id.
\100\Improving Retirement Security and Access to Mental Health
Benefits: Hearing Before the Subcomm. on Health, Labor, and Pensions,
117th Cong. (2022) (statement of Karen Handorf, Senior Counsel, Berger
Montague P.C.) at 5, available at https://edlabor.house.gov/download/
handordkarentestimony030122. See also Meeting the Moment: Improving
Access to Behavioral and Mental Health Care: Hearing Before the
Subcomm. On Health, Labor, and Pensions, 117th Cong. (2021) (statement
of Dr. Meiram Bendat, Founder, Psych Appeal, Inc.) at 5, https://
edlabor.house.gov/imo/media/doc/BendatMeiramTestimony041521.pdf.
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Unfortunately, ERISA's civil enforcement scheme fails to
sufficiently account for issuers' significant role with respect
to administration of both self-funded and insured plans.\101\
Even though issuers are often the entity responsible for
causing plans' parity violations, ERISA expressly prohibits the
DOL from enforcing parity requirements against issuers
directly.\102\ If the DOL were able to directly enforce mental
health parity requirements against issuers, the agency would be
able to more effectively leverage its resources and better
protect participants. In part, this is because whenever
possible the agency tries to work with plan service providers
to achieve global corrections, not just for the particular
plans it investigates but for all other plans that contract
with the same service providers.\103\ If the DOL could compel
issuers to make corrections for noncompliant coverage offered
to ERISA-covered plans, they would be able to obtain global
corrections for self-funded and insured plans alike.
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\101\Section 2726 of the Public Health Service (PHS) Act imposes
requirements on health insurance issuers that are substantively
identical to the parity requirements in ERISA. State insurance
regulators are generally responsible for enforcement of these
requirements under section 2723 of the PHS Act. State-level enforcement
efforts vary widely from state to state. See U.S. Gov't Accountability
Off., GAO-20-150, Mental Health and Substance Use: State and Federal
Oversight of Compliance with Parity Requirements Varies, available at
https://www.gao.gov/products/gao-20-150.
\102\29 U.S.C. 1132(b)(3).
\103\See FY 2021 MHPAEA Enforcement Fact Sheet at 3, available at
https://www.dol.gov/sites/dolgov/files/EBSA/laws-and-regulations/laws/
mental-health-parity/mhpaea-enforcement-2021.pdf.
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In addition to providing DOL with clearer direct
enforcement authority to enforce MHPAEA violations, H.R. 7780
also amends ERISA to make it clear that individuals, and DOL
acting on their behalf, may obtain retrospective relief in any
case involving mental health or other benefits that they are
entitled to under ERISA.
Case law regarding parties' ability to file lawsuits to
recover mental health and other benefits wrongly denied due to
a plan not complying with ERISA has become muddled and is ripe
for clarification. ERISA's civil enforcement framework includes
a private right of action for participants and beneficiaries,
which means that they are generally able to file lawsuits to
ensure that they receive the benefits that they are entitled to
and compel their plan to comply with the law. ERISA also
generally provides the DOL with authority to bring these types
of lawsuits on participants and beneficiaries' behalf. There
are three interconnected statutory provisions in ERISA that
fulfill this purpose:
1. Section 502(a)(1)(B) enables any plan participant
or beneficiary to sue to ``recover benefits due to him
under the terms of the plan, to enforce his rights
under the terms of the plan, or to clarify his rights
to future benefits under the plan.''\104\
---------------------------------------------------------------------------
\104\29 U.S.C. 1132(a)(1)(B).
---------------------------------------------------------------------------
2. Section 502(a)(3) enables any plan participant or
beneficiary to sue ``(A) to enjoin any act or practice
which violates any provision of [ERISA] or the terms of
the plan, or (B) to obtain other appropriate equitable
relief (i) to redress such violations, or (ii) to
enforce any provisions of [ERISA] or the terms of the
plan.''\105\
---------------------------------------------------------------------------
\105\29 U.S.C. 1132(a)(3).
---------------------------------------------------------------------------
3. Section 502(a)(5) similarly enables the DOL to sue
``(A) to enjoin any act or practice which violates any
provision of [ERISA] or the terms of the plan, or (B)
to obtain other appropriate equitable relief (i) to
redress such violations, or (ii) to enforce any
provisions of [ERISA].''\106\
---------------------------------------------------------------------------
\106\29 U.S.C. 1132(a)(5).
---------------------------------------------------------------------------
Courts have sometimes recognized a distinction between
section 502(a)(1)(B) and section 502(a)(3) by reading them in
tandem to create a two-step process for resolving disputes over
benefits that were wrongfully denied due to a violation of
ERISA's requirements. For Step 1, participants or beneficiaries
can bring a claim under section 502(a)(3) to have any terms of
their plan that violate ERISA reformed and, for Step 2, they
may also bring claims under section 502(a)(1)(B) to recover the
benefits provided by the terms of the plan, as reformed through
relief obtained under section 502(a)(3).\107\ However, in some
cases, courts have taken a simpler approach and held that plan
terms that violate ERISA cannot supersede the law and so they
are unenforceable and do not need to be reformed prior to
consideration of claims to recover denied benefits under
section 502(a)(1)(B).\108\ However, under either approach,
section 502(a)(1)(B) is the only provision that can be used to
address recovery of denied benefits by participants.
---------------------------------------------------------------------------
\107\E.g., Cigna Corp. v. Amara et al., 563 U.S. 421 (2011).
\108\See e.g., N.R. v. Raytheon, 24 F.4th 740 (1st Cir. 2022).
---------------------------------------------------------------------------
In Secretary of Labor v. Macy's, et al., the U.S. District
Court for the Southern District of Ohio recently found new
limits on the DOL's authority to enforce ERISA
requirements.\109\ In Macy's, the DOL attempted to exercise its
authority to seek ``appropriate equitable relief'' under
section 502(a)(5) to require the defendants to re-adjudicate
claims that it alleges were improperly decided. However, the
court held that re-adjudication was not a remedy available
under 502(a)(5). Although Macy's only represents the
interpretation of one district court and others may rightly
find that DOL has the authority to obtain re-adjudication of
benefits as a remedy for violations of ERISA, the Committee
sees an interest in making clear that it is the intent of
Congress that this relief be available to the Secretary.
Without this authority, DOL's ability to fulfill its mission to
protect the rights of participants and beneficiaries would be
significantly curtailed. The success of participants and
beneficiaries' claims should not hinge on whether their claims
are properly brought under ERISA section 502(a)(1)(b) or
section 502(a)(3). As such, H.R. 7780 eradicates any ambiguity
and ensures that both of ERISA's remedial authority provisions
in sections 502 can fully protect participants and
beneficiaries.
---------------------------------------------------------------------------
\109\See Secretary of Labor v. Macy's, et al., 1:17-cv-541 (S.D.
Ohio Nov. 17, 2021).
---------------------------------------------------------------------------
Discretionary Clauses Inhibit the Ability of Workers and Retirees to
Enforce their Rights to Mental Health and Other Benefits Under
ERISA-Covered Plans
H.R. 7780, in part, enhances access to mental health and
substance use disorder benefits for individuals with job-based
health coverage by prohibiting discretionary clauses that
unfairly advantage plan administrators by denying claimants the
opportunity for de novo review by courts of their benefit
denials. H.R. 7780 incorporates these protections by including
provisions of bicameral legislation, the Employee and Retiree
Access to Justice Act of 2022, introduced by Rep. DeSaulnier
and Sen. Tina Smith (D-MN) on May 12, 2022.
During the HELP Subcommittee's March 1, 2022, hearing
titled ``Improving Retirement Security and Access to Mental
Health Benefits'' (March 1st Hearing), witnesses testified
regarding clauses in group health plan documents that give plan
administrators authority to interpret the terms of the plan and
effectively deny plan participants and beneficiaries from
having their claims for denied benefits reviewed de novo by
courts if they choose to bring a lawsuit under ERISA. In
Firestone Tire & Rubber Co. v. Bruch, the Supreme Court held
that if the plan documents for an ERISA-covered employee
benefit plan expressly provide the plan administrator with
authority to interpret the terms of the plan, then lawsuits
challenging a denial of benefits must be reviewed by courts
under an abuse of discretion standard, rather than the de novo
standard that is ordinarily the default under ERISA.\110\
---------------------------------------------------------------------------
\110\Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 1010 (1989).
---------------------------------------------------------------------------
In the March 1st Hearing, the Committee heard testimony
stating that because of Firestone, there has been a
proliferation of ``discretionary clauses'' in employee benefit
plans that purport to grant discretion to entities, often
health insurance companies, regarding benefit determinations
and plan interpretation.\111\ Karen Handorf, a veteran ERISA
attorney, testified that:
\111\Improving Retirement Security And Access To Mental Health
Benefits: Hearing Before the Subcomm. On Health, Labor, and Pensions,
117th Cong. (2022) at 7-8 (statement of Karen Handorf, Senior Counsel,
Berger Montague P.C.), available at https://edlabor.house.gov/download/
handordkarentestimony030122.
---------------------------------------------------------------------------
[t]hese clauses change the default de novo review
standard that courts would otherwise apply in reviewing
benefit denials to an abuse of discretion standard that
is extremely deferential to the plan fiduciaries . . .
In practice, this deferential standard of review makes
it very difficult for participants and beneficiaries,
particularly those challenging health care or
disability denials, to obtain promised benefits even if
the court determines that it would decide the matter
differently under a de novo standard of review.
Ms. Handorf further explained that this standard ``severely
limits the scope of discovery'' in these of cases because
courts may only consider the same evidence that was considered
by the plan administrator when deciding whether to approve or
deny the benefit claim.\112\ Indeed, the deferential standard
of review creates such a strong presumption in favor of the
plan administrator's decision to deny benefits that not even a
structural conflict of interest will generally be sufficient to
defeat the presumption that a deferential standard of review is
required.\113\
---------------------------------------------------------------------------
\112\Id. at 7; see also Meeting the Moment: Improving Access to
Behavioral and Mental Health Care: Hearing Before the Subcomm. On
Health, Labor, and Pensions, 117th Cong. (2021) (statement of Dr.
Meiram Bendat, Founder, Psych Appeal, Inc.), available at https://
edlabor.house.gov/imo/media/doc/BendatMeiramTestimony041521.pdf
(providing similar commentary on the effect of discretionary clauses).
\113\Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 (2008) (``The
significance of the conflict of interest factor will depend on the
circumstances of the particular case'').
---------------------------------------------------------------------------
The Committee strongly believes a general prohibition on
discretionary clauses in ERISA-covered plans would
significantly enhance participants' and beneficiaries' ability
to prevail when they are challenge a wrongful denial of mental
health benefits. Consider, for example, the case of Wit. v.
United Behavioral Health, a large class action lawsuit
regarding coverage of mental health benefits. In Wit, the U.S.
District Court for the Northern District of California ruled
that United Behavioral Health (``UBH'') breached its fiduciary
duties under ERISA because the terms of the plans it
administered stated that medical necessity determinations were
based on guidelines that were consistent with generally
accepted standards of care when, in fact, UBH had adopted
guidelines that were much narrower.\114\ When the district
court's ruling was issued, the case earned national attention
and was celebrated as a watershed moment by mental health
advocates.\115\ However, UBH appealed and the Ninth Circuit
Court of Appeals recently overturned the district court's
decision.\116\ In its reversal, the Ninth Circuit held that the
lower court had misapplied the standard of review (for abuse of
discretion, rather de novo review) by substituting the court's
interpretation of plan terms for UBHs, which the court
determined was not unreasonable. If plaintiffs in the Wit case
were able to have their claims reviewed by the court under a de
novo standard it would mean that UBH`s interpretation of plan
terms would not be given deference and the plaintiffs' claims
would not have to clear such a high bar to prevail.
---------------------------------------------------------------------------
\114\Wit v. United Behav. Health, No. 14-CV-02346-JCS (N.D. Cal.
Mar. 5, 2019), rev`d, No. 20-17363, 9th Cir. Mar. 22, 2022).
\115\See Reed Abelson, Mental Health Treatment Denied to Customers
by Giant Insurer`s Policies, Judge Rules, N.Y. Times, Mar. 9, 2019,
available at https://www.nytimes.com/2019/03/05/health/unitedhealth-
mental-health-parity.html?searchResultPosition=1.
\116\Wit v. United Behav. Health, No. 20-17363, (9th Cir. Mar. 22,
2022).
---------------------------------------------------------------------------
Notably, courts do not always seem to agree that giving
deference to a plan administrators' denial of benefits is just,
even under the Supreme Court`s precedent. For example, one
judicial opinion explained that ``[t]he masks of the law in
this case conceals the person at risk of dying by a deferential
standard of review and the rules of legal interpretation. The
result is a determination that [defendant`s] denial of benefits
was legally, but perhaps not morally, reasonable.''\117\ In
another decision, a court explained that because of the
requirement that they apply deferential review, ``the die was
essentially cast'' against the participant's claim and ``the
claimant may lose even if a preponderance of the evidence
supports a finding of disability, so long as the decision has
`rational support in the record.'''\118\
---------------------------------------------------------------------------
\117\Robertson v. Blue Cross & Blue Shield of Texas, 99 F. Supp. 3d
1249, 1261 (D. Mont.), aff`d sub nom. Robertson v. Blue Cross, 612 F.
App'x 478 (9th Cir. 2015).
\118\Fessenden v. Reliance Standard Life Ins. Co., No. 3:15CV370-
PPS, 2018 WL 461105, at *13 (N.D. Ind. Jan. 17, 2018), vacated and
remanded, 927 F.3d 998 (7th Cir. 2019).
---------------------------------------------------------------------------
Without a de novo standard of review, individuals are
unfairly disadvantaged when they challenge a benefit denial in
court. H.R. 7780 would take an important step toward resolving
this imbalance of power and improving access to behavioral
health benefits for workers and their families by prohibiting
single-employer plan discretionary clauses and any plan
provisions that would require a standard of review other than
de novo.
Forced Arbitration Clauses That Purport to Govern ERISA Claims Are
Increasingly Common and Interfere with Workers` Ability to
Enforce Their Rights with Respect to Mental Health and
Substance Use Disorder Benefits
By amending ERISA to expressly prohibit arbitration clauses
that preclude plan participants and beneficiaries from bringing
suit in federal court to challenge mental health benefit
denials and fiduciary breaches, H.R. 7780 would help workers
covered by ERISA plans enforce their rights with respect to
mental health benefits and remove barriers that conflict with
ERISA`s stated purpose of ``providing for appropriate remedies,
sanctions, and ready access to the Federal courts.''\119\
---------------------------------------------------------------------------
\119\29 U.S.C. 1001(b).
---------------------------------------------------------------------------
In its March 1st Hearing, the HELP Subcommittee heard
testimony that ``plan sponsors are increasingly including
provisions in their employee benefit plans requiring
participants to arbitrate'' challenges to benefit denials and
fiduciary breach claims against plan administrators and other
plan service providers ``instead of bringing suit in federal
court as permitted under ERISA.''\120\ The HELP Subcommittee
also heard about the effect forced arbitration clauses on
coverage for mental health treatment during its April 15, 2021
hearing titled ``Meeting the Moment: Improving Access to
Behavioral and Mental Health Care'' during which Dr. Meiram
Bendat testified that such clauses ``. . . . make things
secret, so DOL doesn`t find out about potential allegations and
findings. Arbitrations don`t always follow the law in a way
that courts do, and arbitrations can also potentially limit the
types of relief sought, so [they are] a real danger.''\121\
Forced arbitration clauses take a variety of forms and may
either be embedded in plan documents or participants'
employment agreements. They sometimes also purport to require
plan participants to waive their ability to participate in
class action or maintain confidentiality regarding any actions
they might bring.\122\ The case law on whether these clauses
are enforceable is mixed and seems to vary based on the
specific facts and circumstances of each particular case.\123\
The express prohibition in H.R. 7780 eliminates such ambiguity.
---------------------------------------------------------------------------
\120\Improving Retirement Security and Access to Mental Health
Benefits: Hearing Before the Subcomm. On Health, Labor, and Pensions,
117th Cong. (2022) at 8 (statement of Karen Handorf, Senior Counsel,
Berger Montague P.C.), available at https://edlabor.house.gov/download/
handordkarentestimony030122.
\121\Dr. Meiram Bendat, Meeting the Moment: Improving Access to
Behavioral and Mental Health Care: Hearing Before the Subcomm. On
Health, Labor, and Pensions, 117th Cong. (2021) available at https://
edlabor.house.gov/hearings/meeting-the-moment-improving-access-to-
behavioral-and-mental-health-care.
\122\Improving Retirement Security and Access to Mental Health
Benefits: Hearing Before the Subcomm. On Health, Labor, and Pensions,
117th Cong. (2022) at 8 (statement of Karen Handorf, Senior Counsel,
Berger Montague P.C.), available at https://edlabor.house.gov/download/
handordkarentestimony030122.
\123\See Pamela Reynolds, Are ERISA Breach of Fiduciary Duty Claims
Arbitrable? (June 2, 2021), available at https://www.littler.com/
publication-press/publication/are-erisa-breach-
fiduciary-duty-claims-arbitrable, (providing a robust discussion of
relevant case law).
---------------------------------------------------------------------------
At the March 1st Hearing, Ms. Handorf testified that forced
arbitration clauses ``potentially make plan fiduciaries subject
to conflicting arbitration decisions, even when the behavior in
question impacts all plan participants equally, violating
ERISA's goal of consistent and uniform application of fiduciary
standards among plan participants.''\124\ In addition, ``[t]he
cost of pursuing an individual participant`s claim may outweigh
the value of the individual claim. Thus, these restrictions may
defeat the ability of participants and beneficiaries who have a
small-dollar claim from obtaining redress even if the violation
at issue is systemic and many other participants or
beneficiaries would have similar claims that could be addressed
on a class or representative basis.''\125\
---------------------------------------------------------------------------
\124\Handorf, supra note 52, citing 29 U.S.C 1002(b).
\125\Id.
---------------------------------------------------------------------------
Taken together, the provisions of H.R. 7780 bring us closer
to making the promise of parity a reality for the millions of
people with job-based health coverage.\126\
---------------------------------------------------------------------------
\126\Several of the amendments to ERISA made by H.R. 7780 would
also help participants and beneficiaries in employee pension benefit
plans to enforce their rights under the law. Forced arbitration
clauses, for example, have been a barrier to bringing lawsuits alleging
breach of fiduciary duties related to the administration of defined
contribution retirement plans. See e.g., Dorman v. Charles Schwab
Corp., 780 F. App'x 510 (9th Cir. 2019).
---------------------------------------------------------------------------
CONCLUSION
The Mental Health Matters Act is a comprehensive measure
designed to ensure that federal policies and programs are
meeting the behavioral health needs of students, workers, and
families. As the country continues to recognize the importance
of mental health, Congress must put policies in place to
support our mental health workforce, ensure students get access
to mental health services in their schools, and protect rights
to access mental health and substance abuse services. The
Committee reports H.R. 7780 to the House and hopes that the
House can take action on it this Congress to send the message
that mental health truly matters.
Section-by-Section Analysis
Section 1. Short title
This section states that the title of the bill is the
Mental Health Matters Act.
Sec. 2. Table of Contents
TITLE I--EARLY CHILDHOOD MENTAL HEALTH ACT
Section 101. Short title
This section states that the title may be cited as the
Early Childhood Mental Health Support Act.
Section 102. Identification of effective interventions in Head Start
Programs
This section requires the U.S. Secretary of Health and
Human Services (HHS), acting through the Assistant Secretary
for the Administration for Children and Families (ACF), to
identify and review interventions, best practices, curricula,
and staff trainings that are evidence-based and improve the
behavioral health of children. This section requires that the
Secretary focus on interventions that can be delivered by a
provider or other staff, are demonstrated to improve social-
emotional development, demonstrate effectiveness across racial,
ethnic, and geographic populations, and offer a tiered approach
to addressing need. This section also requires the Secretary to
identify interventions that support staff wellness and the
appropriate credentials for individuals who deliver such
interventions.
Sec. 103. Implementing the interventions in Head Start Programs
This section authorizes the Assistant Secretary for ACF to
award grants to Head Start agencies to implement the
interventions identified in section 102 and ensure grants are
awarded to grantees representing a diversity of geographic
areas.
Sec. 104. Evaluating implementation of interventions in Head Start
Programs
This section requires the Office of the Assistant Secretary
for Planning and Evaluation, in coordination with the Assistant
Secretary for ACF, in HHS to determine if the interventions
under section 103 are effectively implemented and yield long-
term savings, develop a method for making such determination,
and ensure such method includes competency and testing
approaches, performance or outcome measures, or other methods,
and solicits public input. The Assistant Secretary is required
to develop a method for such determination not later than 2
years after enactment and update such method and determination
at least every 5 years.
Sec. 105. Implementing the evaluation framework for Head Start Program
The section requires the Assistant Secretary for ACF to
implement the evaluation developed in section 104(a) to
determine the effectiveness of the interventions, best
practices, curricula, and staff trainings under section 102.
This section also directs the Assistant Secretary for the ACF
to provide technical assistance for grantees implementing and
evaluating interventions under section 102.
Sec. 106. Best Practices Centers
This section authorizes the Assistant Secretary for ACF to
fund up to five Best Practice Centers in Early Childhood
Training to prepare Head Start agencies and staff to deliver
the interventions identified in section 102.
Sec. 107. Funding
This section authorizes $100 million over ten years between
FY 2023 through FY 2032 to carry out sections 103(b), 104, and
106.
TITLE II--BUILDING PIPELINE OF SCHOOL-BASED MENTAL HEALTH SERVICE
PROVIDERS
Sec. 201. Short title
This section states that the title may be cited as the
Building Pipeline of School-Based Mental Health Service
Providers Act.
Sec. 202. Definitions
This section specifies definitions for ``Best Practices,''
``Eligible Institution,'' ``Eligible Partnership,'' ``High-Need
Local Educational Agency,'' ``Historically Black College or
University,'' ``Homeless Children and Youths,'' ``Indian Tribe;
Tribal Organization,'' ``Institution of Higher Education,''
``Local Educational Agency,'' ``Minority-Serving Institution,''
``Outlying Area,'' ``Participating Eligible Institution,''
``Participating Graduate,'' ``Participating High-Need Local
Educational Agency,'' ``School-Based Mental Health Field,''
``School-Based Mental Health Services Provider,''
``Secretary,'' ``State Educational Agency,'' ``Student Support
Personnel Target Ratios,'' ``Tribally Controlled College or
University,'' and ``Unaccompanied Youth.''
Sec. 203. Grant program to increase the number of school-based mental
health services provides serving in high-need local educational
agencies
This section authorizes the Secretary of Education to award
grants to eligible partnerships to enable the eligible
partnership to carry out pipeline programs to increase the
number of school-based mental health services providers
employed by high-need local educational agencies. This section
also requires several reservations from the total of amounts
appropriated: half of one percent to the Secretary of the
Interior; half of one percent for allotments to outlying areas;
not more than three percent to conduct evaluations under
subsection (h); and not more than two percent for
administration and technical assistance.
This section outlines the application process. Eligible
partnerships must submit an application to the Secretary of
Education including an assessment of existing ratios of school-
based mental health services providers to students, and a
detailed descriptions of a plan to carry out a pipeline program
and the proposed allocation and use of grant funds. Further
this section outlines how grant funds awarded may be used.
The section requires the Secretary of Education to award
grants to ensure grants are distributed to eligible entities
that will serve geographically diverse areas and give priority
to eligible partnerships that: have the highest numbers or
percentages of low-income students; include one or more high-
need local educational agencies that have fewer school-based
mental health services providers than other eligible
partnerships; include one or more eligible institutions of high
education; propose to collaborate with another institution of
high education; and propose to use grant funds to increase the
diversity of school-based mental health services providers.
This section states that funds under this section shall be
used to supplement, not supplant, other Federal, State, or
local funds available.
This section further requires that each eligible
partnership receiving a grant prepare and submit an annual
report to the Secretary of Education. The annual report must
include: actual service delivery provided through the grant
funds; outcomes that are consistent with the purpose of the
grant program; the instruction, materials, and activities being
funded; and the effectiveness of any training and ongoing
professional development provided. The Secretary of Education
will make public the annual reports on the website of the
Department of Education.
This section requires the Secretary of Education to conduct
interim evaluations to ensure eligible partnerships are making
adequate progress and a final evaluation to determine the
effectiveness of the grant program. Further, the Secretary of
Education will submit a report to Congress not earlier than
five years nor later than six years after enactment pertaining
the findings of the final evaluation.
This section also authorizes $200 million for FY 2023 and
each succeeding fiscal year.
TITLE III--THE ELEMENTARY AND SECONDARY SCHOOL
COUNSELING ACT
Sec. 301. Short title
This section states that the title may be cited as the
Elementary and Secondary School Counseling Act.
Sec. 302. Definitions
This section specifies definitions for ``ESEA
Definitions,'' ``High-Need School,'' ``Outlying Area,''
``School-Based Mental Health Services Provider,''
``Secretary,'' and ``State.''
Sec. 303. Allotments to States and subgrants to local educational
agencies
This section authorizes the Secretary of Education to make
allotments to States. States will award subgrants to local
educational agencies in order to increase access to school-
based mental health services providers at high-need schools.
This section requires several reservations from the total
of amounts appropriated: half of one percent for the Secretary
of the Interior; half of one percent for allotments for the
outlying areas; and not more than two percent for
administration and technical assistance.
This section requires the Secretary to make allotments to
each State based on the formula under part A of title I of the
Elementary and Secondary Education Act of 1965. Additionally,
this section outlines the minimum state allotment for small
states and matching requirements. This section further outlines
the application process for States. States are eligible to
receive an allotment for a period of 5-years and may be renewed
for an additional 5-year period.
This section outlines the process for States to make
subgrants to local educational agencies to recruit and retain
school-based mental health services providers and work toward
effectively staffing high-need schools with school-based mental
health services providers. States are required to give priority
to local educational agencies that serve a significant number
of high-need schools. Local educational agencies must submit an
application to the State regarding how the agency will
prioritize assisting high-need schools with the largest numbers
or percentages of students from low-income families. This
section states that funds under this section shall be used to
supplement, not supplant, other funds available to a state or
local educational agency for school-based mental health
services. Funds can be combined with State or local funds to
carry out activities under this section.
This section requires that local educational agencies
receiving a subgrant under this section submit an annual report
to the State describing the activities carried out, enumerate
the number of school-based mental health services providers,
and include the most recent student to provider ratios. The
Secretary of Education will make public the annual reports on
the website of the Department of Education.
Sec. 304. Authorization of Appropriations
This section authorizes $5 billion for FY 2023 and such
sums as necessary for each succeeding fiscal year.
TITLE IV--SUPPORTING TRAUMA-INFORMED EDUCATION
PRACTICES ACT
Sec. 401. Short title
This section states that the title may be cited as the
Supporting Trauma-Informed Education Practices Act.
Sec. 402. Amendment to the SUPPORT for Patients and Communities Act
This section amends section 7134 of the SUPPORT for
Patients and Communities Act.
This section authorizes the Secretary of Education, in
coordination with the Secretary of HHS, to award grants to an
eligible entity to increase school personnel access to
evidence-based trauma support services and mental health
services. This section also requires several reservations from
the total of amounts appropriated: not more than three percent
to conduct the evaluation under this section; and not more than
two percent to technical assistance and administration.
Eligible entities who receive funds under this section may not
exceed a 5-year period.
This section outlines a list of initiatives, activities,
and programs for which an eligible entity may use the funds
under this section. Eligible entities must submit an
application to the Secretary of Education in order to receive a
grant, contract, or cooperative agreement under this section.
In carrying out an evidence-based initiative described under
the use of funds section, an eligible entity will establish an
interagency agreement between local educational agencies,
agencies responsible for early childhood education programs,
Head Start agencies (including Early Head Start agencies),
juvenile justice authorities, mental health agencies, child
welfare agencies, and other relevant agencies, authorities, or
entities in the community that will be involved in the
provision of services under such initiative, activity, or
program.
This section requires that the Secretary of Education
conduct a rigorous evaluation of the initiatives and activities
carried out by an eligible entity under this section and
disseminate evidence-based practices regarding trauma-informed
support services and mental health services.
The section requires the Secretary of Education to ensure
grants, contracts, and cooperative agreements under this
section are distributed equitably to eligible entities that
will serve geographically diverse areas. This section states
that funds under this section shall be used to supplement, not
supplant, other Federal, State, or local funds available to
carry out the initiatives and activities described in this
section. Further this section requires the Secretary of
Education to consult with Indian Tribes, Regional Corporations,
Native Hawaiian Educational Organizations, and their
representatives to ensure notice of eligibility.
This section specifies definitions for ``Early Childhood
Education Program,'' ``Eligible Entity,'' ``ESEA Terms,''
``Regional Corporation,'' and ``School.''
This section authorizes $50 million between FY 2023 through
FY 2027 to carry out this section.
TITLE V--RESPOND, INNOVATE, SUCCEED, AND EMPOWER (RISE)
Sec. 501. Short title
This section states that the title may be cited as the
Respond, Innovate, Succeed, and Empower Act or the RISE Act.
Sec. 502. Perfecting amendment to the definition of disability
This section amends Section 103(6) of the Higher Education
Act of 1965 by striking ``section 3(2)'' and inserting
``section 3.''
Sec. 503. Supporting students with disabilities to succeed once
enrolled in college
This section amends section 487(a) of the Higher Education
Act of 1965 to add that institutions will adopt policies
providing that individualized education plans (IEPs) and
similar documentation developed during primary and secondary
education will be considered sufficient to establish that the
student has a disability for which they may need an
accommodation. Additionally, institutions are required to
develop, disseminate and publish policies that are transparent
and explicit regarding the process through which a student with
a disability can obtain reasonable accommodations.
Sec. 504. Authorization of the funds for the national center for the
information and technical support for postsecondary students
with disabilities
This section amends section 777(a) of the Higher Education
Act of 1965 by striking the previous amounts appropriated and
adding new paragraph (5) indicating appropriations. This
section authorizes $2 million for each fiscal year between FY
2023 and FY 2027 to carry out this subsection.
Sec. 505. Inclusion of information on students with disabilities
This section amends Section 487(a) of the Higher Education
Act of 1965, as amended by section 503, to add a new paragraph
(31) at the end. This section outlines that institutions will
submit key data related to undergraduate students who are
formally registered as students with disabilities with the
institution`s office of disability services. Institutions will
not submit such information if the information would reveal
personally identifiable information.
Sec. 506. Rule of construction
This section states that none of the amendments made by
this title shall not be construed to affect the meaning of the
terms ``reasonable accommodation'' or ``record of impairment''
under the Americans with Disabilities Act of 1990.
TITLE VI--STRENGTHENING BEHAVIORAL HEALTH BENEFITS
Sec. 601. Short title
This section states that the title may be cited as the
Strengthening Behavioral Health Benefits Act.
Sec. 602. Enforcement of mental health and substance use disorder
requirements
This section amends section 502(a) of the Employee
Retirement Income Security Act of 1974 to add a new paragraph
(12). This section authorizes the Secretary of Labor or a plan
participant, beneficiary, or fiduciary to bring a civil action
regarding mental health and substance use disorder benefits
against a plan, health insurance issuer, fiduciary, or other
individual who participates in or conceals a statutory
violation or wrongful denial of benefits relating to mental
health and substance use disorder. This section specifies that
relief available under paragraph (12) includes recovery of all
losses to participants or beneficiaries, reformation of
impermissible plan or coverage terms, and re-adjudication of
claims and payment of benefits.
This section further amends section 502(a)of the Employee
Retirement Income Security Act of 1974 to clarify that relief
available to the Secretary of Labor or any participant or
beneficiary includes re-adjudication and payment of benefits.
This section amends section 502(b)(3) of the Employee
Retirement Income Security Act of 1974 to authorize the
Secretary of Labor to enforce requirements regarding mental
health and substance use disorder benefits against health
insurance issuers.
This section amends part 7 of title I of the Employee
Retirement Income Security Act of 1974 to make a technical
amendment to account for amendments made by this legislation.
This section authorizes $275 million to remain available
until FY 2032 for audits and investigations, enforcement
actions, litigation expenses, issuance of regulations or
guidance, and any other Departmental activities relating to
section 712 of the Employee Retirement Income Security Act of
1974 or other requirements relating to mental health and
substance use disorder benefits.
TITLE VII--EMPLOYEE AND RETIREE ACCESS TO JUSTICE
Sec. 701. Short title
This section states that the title may be cited as the
Employee and Retiree Access to Justice Act of 2022.
Sec. 702. Unenforceable arbitration clauses, class action waivers,
representation waivers, and discretionary clauses
This section amends section 502 of the Employee Retirement
Income Security Act of 1974 to provide that pre-dispute or
coerced post-dispute arbitration clauses, class action waivers,
and representation waivers are unenforceable in any civil
action brought by or on behalf of a participant or beneficiary
under section 502 or under a common law claim relating to plan
benefits.
This section amends section 502 of the Employee Retirement
Income Security Act of 1974 to provide that covered provisions
that give discretionary authority in benefit determinations or
plan interpretation (or otherwise deny de novo review of
benefit denial claims) are unenforceable with respect to
single-employer plans in any civil action brought by or on
behalf of a participant or beneficiary under section 502 or
under a common law claim relating to plan benefits.
This section specifies definitions for ``covered
provision,'' ``pre-dispute arbitration provision,'' ``post-
dispute arbitration provision,'' and ``retaliation.''
This section authorizes the Secretary of Labor to issue
regulations related to these provisions.
Sec. 703. Prohibition on mandatory arbitration clauses, class action
waivers, representation waivers, and discretionary clauses
This section amends section 402 of the Employee Retirement
Income Security Act of 1974 to prohibit covered persons from
including in plan documents any pre-dispute arbitration
provision, post-dispute arbitration provision, class action
waiver, representation waiver, or discretionary clause
described in section 702.
This section specifies definitions for ``covered person''
as well as ``covered provision,'' ``pre-dispute arbitration
provision,'' and ``post-dispute arbitration provision.''
Sec. 704. Effective date
This section specifies that the provisions in sections 702
and 703 apply as of the date of enactment.
This section further specifies that plans will have an
additional year following the enactment of this legislation to
update plan documents, provided that they otherwise comply with
the requirements of sections 702 and 703 starting on the date
of enactment.
Explanation of Amendments
The amendments, including the amendment in the nature of a
substitute, are explained in the descriptive portions of this
report.
Application of Law to the Legislative Branch
Pursuant to section 102(b)(3) of the Congressional
Accountability Act of 1995, Pub. L. No. 104-1, H.R. 7780 does
not apply to terms and conditions of employment or to access to
public services or accommodations within the legislative
branch.
Unfunded Mandate Statement
Pursuant to Section 423 of the Congressional Budget and
Impoundment Control Act of 1974, Pub. L. No. 93-344 (as amended
by Section 101(a)(2) of the Unfunded Mandates Reform Act of
1995, Pub. L. No. 104-4), the Committee traditionally adopts as
its own the cost estimate prepared by the Director of the
Congressional Budget Office (CBO) pursuant to section 402 of
the Congressional Budget and Impoundment Control Act of 1974,
which includes an estimate of federal mandates. The Committee
reports that because this cost estimate was not timely
submitted to the Committee before the filing of this report,
the Committee is not in a position to make a statement on
federal mandates for H.R. 7780, as amended.
Earmark Statement
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 7780 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as described in clauses 9(e), 9(f), and 9(g) of rule
XXI.
Roll Call Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee`s
consideration of H.R. 7780:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Statement of Performance Goals and Objectives
Pursuant to clause (3)(c) of rule XIII of the Rules of the
House of Representatives, the goals of H.R. 7780 are to improve
access to behavioral health services for children, students,
and workers.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee states that no
provision of H.R. 7780 is known to be duplicative of another
federal program, including any program that was included in a
report to Congress pursuant to section 21 of Pub. L. No. 111-
139 or the most recent Catalog of Federal Domestic Assistance.
Hearings
Pursuant to clause 3(c)(6) of rule XIII of the Rules of the
House of Representatives--
(1) the following hearing was used to develop H.R.
7780: the HELP Subcommittee hearing titled ``Meeting
the Moment: Improving Access to Behavioral and Mental
Health Care'' held on April 15, 2021. The hearing
examined barriers to access to behavioral health care,
particularly limited coverage of mental health and
substance use disorder treatment and the importance of
improving enforcement of mental health parity laws. The
Subcommittee heard testimony from Dr. Brian Smedley,
Chief of Psychology in the Public Interest, American
Psychological Association, Washington, DC; Dr.
Christine Yu Moutier, Chief Medical Officer, American
Foundation for Suicide Prevention, New York, NY; Mr.
James Gelfand, Senior Vice President, Health Policy,
The ERISA Industry Committee, Washington, DC; and Dr.
Meiram Bendat, Founder, Psych-Appeal, Santa Barbara,
CA.
(2) Other related hearings held are listed in the
Committee History section of this report.
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 descriptive portions of this report.
New Budget Authority and CBO Cost Estimate
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives and section 308(a) of the
Congressional Budget and Impoundment Control Act of 1974, and
pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives and section 402 of the Congressional
Budget and Impoundment Control Act of 1974, the Committee has
requested but not received a cost estimate for H.R. 7780 from
the Director of the Congressional Budget Office.
Committee Cost Estimate
Clause 3(d)(1) 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. 7780.
However, clause 3(d)(2)(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 and Impoundment
Control Act of 1974. The Committee reports that because this
cost estimate was not timely submitted to the Committee before
the filing of this report, the Committee is not in a position
to make a cost estimate for H.R. 7780, as amended.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, H.R. 7780 as reported, are shown as follows:
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
SUPPORT FOR PATIENTS AND COMMUNITIES ACT
* * * * * * *
TITLE VII--PUBLIC HEALTH PROVISIONS
* * * * * * *
Subtitle N--Trauma-Informed Care
* * * * * * *
[SEC. 7134. GRANTS TO IMPROVE TRAUMA SUPPORT SERVICES AND MENTAL HEALTH
CARE FOR CHILDREN AND YOUTH IN EDUCATIONAL
SETTINGS.
[(a) Grants, Contracts, and Cooperative Agreements
Authorized.--The Secretary, in coordination with the Assistant
Secretary for Mental Health and Substance Use, is authorized to
award grants to, or enter into contracts or cooperative
agreements with, State educational agencies, local educational
agencies, Indian Tribes (as defined in section 4 of the Indian
Self-Determination and Education Assistance Act) or their
tribal educational agencies, a school operated by the Bureau of
Indian Education, a Regional Corporation, or a Native Hawaiian
educational organization, for the purpose of increasing student
access to evidence-based trauma support services and mental
health care by developing innovative initiatives, activities,
or programs to link local school systems with local trauma-
informed support and mental health systems, including those
under the Indian Health Service.
[(b) Duration.--With respect to a grant, contract, or
cooperative agreement awarded or entered into under this
section, the period during which payments under such grant,
contract or agreement are made to the recipient may not exceed
4 years.
[(c) Use of Funds.--An entity that receives a grant,
contract, or cooperative agreement under this section shall use
amounts made available through such grant, contract, or
cooperative agreement for evidence-based activities, which
shall include any of the following:
[(1) Collaborative efforts between school-based
service systems and trauma-informed support and mental
health service systems to provide, develop, or improve
prevention, screening, referral, and treatment and
support services to students, such as providing trauma
screenings to identify students in need of specialized
support.
[(2) To implement schoolwide positive behavioral
interventions and supports, or other trauma-informed
models of support.
[(3) To provide professional development to teachers,
teacher assistants, school leaders, specialized
instructional support personnel, and mental health
professionals that--
[(A) fosters safe and stable learning
environments that prevent and mitigate the
effects of trauma, including through social and
emotional learning;
[(B) improves school capacity to identify,
refer, and provide services to students in need
of trauma support or behavioral health
services; or
[(C) reflects the best practices for trauma-
informed identification, referral, and support
developed by the Task Force under section 7132.
[(4) Services at a full-service community school that
focuses on trauma-informed supports, which may include
a full-time site coordinator, or other activities
consistent with section 4625 of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 7275).
[(5) Engaging families and communities in efforts to
increase awareness of child and youth trauma, which may
include sharing best practices with law enforcement
regarding trauma-informed care and working with mental
health professionals to provide interventions, as well
as longer term coordinated care within the community
for children and youth who have experienced trauma and
their families.
[(6) To provide technical assistance to school
systems and mental health agencies.
[(7) To evaluate the effectiveness of the program
carried out under this section in increasing student
access to evidence-based trauma support services and
mental health care.
[(8) To establish partnerships with or provide
subgrants to Head Start agencies (including Early Head
Start agencies), public and private preschool programs,
child care programs (including home-based providers),
or other entities described in subsection (a), to
include such entities described in this paragraph in
the evidence-based trauma initiatives, activities,
support services, and mental health systems established
under this section in order to provide, develop, or
improve prevention, screening, referral, and treatment
and support services to young children and their
families.
[(d) Applications.--To be eligible to receive a grant,
contract, or cooperative agreement under this section, an
entity described in subsection (a) shall submit an application
to the Secretary at such time, in such manner, and containing
such information as the Secretary may reasonably require, which
shall include the following:
[(1) A description of the innovative initiatives,
activities, or programs to be funded under the grant,
contract, or cooperative agreement, including how such
program will increase access to evidence-based trauma
support services and mental health care for students,
and, as applicable, the families of such students.
[(2) A description of how the program will provide
linguistically appropriate and culturally competent
services.
[(3) A description of how the program will support
students and the school in improving the school climate
in order to support an environment conducive to
learning.
[(4) An assurance that--
[(A) persons providing services under the
grant, contract, or cooperative agreement are
adequately trained to provide such services;
and
[(B) teachers, school leaders,
administrators, specialized instructional
support personnel, representatives of local
Indian Tribes or tribal organizations as
appropriate, other school personnel, and
parents or guardians of students participating
in services under this section will be engaged
and involved in the design and implementation
of the services.
[(5) A description of how the applicant will support
and integrate existing school-based services with the
program in order to provide mental health services for
students, as appropriate.
[(6) A description of the entities in the community
with which the applicant will partner or to which the
applicant will provide subgrants in accordance with
subsection (c)(8).
[(e) Interagency Agreements.--
[(1) Local interagency agreements.--To ensure the
provision of the services described in subsection (c),
a recipient of a grant, contract, or cooperative
agreement under this section, or their designee, shall
establish a local interagency agreement among local
educational agencies, agencies responsible for early
childhood education programs, Head Start agencies
(including Early Head Start agencies), juvenile justice
authorities, mental health agencies, child welfare
agencies, and other relevant agencies, authorities, or
entities in the community that will be involved in the
provision of such services.
[(2) Contents.--In ensuring the provision of the
services described in subsection (c), the local
interagency agreement shall specify with respect to
each agency, authority, or entity that is a party to
such agreement--
[(A) the financial responsibility for the
services;
[(B) the conditions and terms of
responsibility for the services, including
quality, accountability, and coordination of
the services; and
[(C) the conditions and terms of
reimbursement among such agencies, authorities,
or entities, including procedures for dispute
resolution.
[(f) Evaluation.--The Secretary shall reserve not more than 3
percent of the funds made available under subsection (l) for
each fiscal year to--
[(1) conduct a rigorous, independent evaluation of
the activities funded under this section; and
[(2) disseminate and promote the utilization of
evidence-based practices regarding trauma support
services and mental health care.
[(g) Distribution of Awards.--The Secretary shall ensure that
grants, contracts, and cooperative agreements awarded or
entered into under this section are equitably distributed among
the geographical regions of the United States and among tribal,
urban, suburban, and rural populations.
[(h) Rule of Construction.--Nothing in this section shall be
construed--
[(1) to prohibit an entity involved with a program
carried out under this section from reporting a crime
that is committed by a student to appropriate
authorities; or
[(2) to prevent Federal, State, and tribal law
enforcement and judicial authorities from exercising
their responsibilities with regard to the application
of Federal, tribal, and State law to crimes committed
by a student.
[(i) Supplement, Not Supplant.--Any services provided through
programs carried out under this section shall supplement, and
not supplant, existing mental health services, including any
special education and related services provided under the
Individuals with Disabilities Education Act (20 U.S.C. 1400 et
seq.).
[(j) Consultation With Indian Tribes.--In carrying out
subsection (a), the Secretary shall, in a timely manner,
meaningfully consult with Indian Tribes and their
representatives to ensure notice of eligibility.
[(k) Definitions.--In this section:
[(1) Elementary school.--The term ``elementary
school'' has the meaning given such term in section
8101 of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 7801).
[(2) Evidence-based.--The term ``evidence-based'' has
the meaning given such term in section 8101(21)(A)(i)
of the Elementary and Secondary Education Act of 1965
(20 U.S.C. 7801(21)(A)(i)).
[(3) Native hawaiian educational organization.--The
term ``Native Hawaiian educational organization'' has
the meaning given such term in section 6207 of the
Elementary and Secondary Education Act of 1965 (20
U.S.C. 7517).
[(4) Local educational agency.--The term ``local
educational agency'' has the meaning given such term in
section 8101 of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7801).
[(5) Regional corporation.--The term ``Regional
Corporation'' has the meaning given the term in section
3 of the Alaska Native Claims Settlement Act (43 U.S.C.
1602)).
[(6) School.--The term ``school'' means a public
elementary school or public secondary school.
[(7) School leader.--The term ``school leader'' has
the meaning given such term in section 8101 of the
Elementary and Secondary Education Act of 1965 (20
U.S.C. 7801).
[(8) Secondary school.--The term ``secondary school''
has the meaning given such term in section 8101 of the
Elementary and Secondary Education Act of 1965 (20
U.S.C. 7801).
[(9) Secretary.--The term ``Secretary'' means the
Secretary of Education.
[(10) Specialized instructional support personnel.--
The term ``specialized instructional support
personnel'' has the meaning given such term in section
8101 of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 7801).
[(11) State educational agency.--The term ``State
educational agency'' has the meaning given such term in
section 8101 of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7801).
[(l) Authorization of Appropriations.--There is authorized to
be appropriated to carry out this section, $50,000,000 for each
of fiscal years 2019 through 2023.]
SEC. 7134. GRANTS TO IMPROVE TRAUMA SUPPORT SERVICES AND MENTAL HEALTH
CARE FOR CHILDREN AND YOUTH IN EDUCATIONAL
SETTINGS.
(a) Authorization of Grants.--
(1) Grants, contracts, and cooperative agreements
authorized.--The Secretary, in coordination with the
Secretary of Health and Human Services, is authorized
to award grants to, or enter into contracts or
cooperative agreements with, an eligible entity for the
purpose of increasing student, teacher, school leader,
and other school personnel access to evidence-based
trauma support services and mental health services by
developing innovative initiatives, activities, or
programs to connect schools and local educational
agencies, or tribal educational agencies, as
applicable, with community trauma-informed support and
mental health systems, including such systems under the
Indian Health Service.
(2) Reservations.--From the total amount appropriated
under subsection (l) for a fiscal year, the Secretary
shall reserve--
(A) not more than 3 percent to conduct the
evaluation under subsection (f); and
(B) not more than 2 percent for technical
assistance and administration.
(b) Duration.--With respect to a grant, contract, or
cooperative agreement awarded or entered into under this
section, the period during which payments under such grant,
contract or agreement are made to the recipient may not exceed
5 years.
(c) Use of Funds.--An eligible entity that receives or enters
into a grant, contract, or cooperative agreement under this
section shall use amounts made available through such grant,
contract, or cooperative agreement for evidence-based
initiatives, activities, or programs, which shall include at
least 1 of the following:
(1) Enhancing, improving, or developing collaborative
efforts between schools, local educational agencies or
tribal educational agencies, as applicable, and
community mental health and trauma-informed service
delivery systems to provide, develop, or improve
prevention, referral, treatment, and support services
to students.
(2) Implementing trauma-informed models of support,
including trauma-informed, positive behavioral
interventions and supports in schools served by the
eligible entity.
(3) Providing professional development to teachers,
paraprofessionals, school leaders, school-based mental
health services providers, and other specialized
instructional support personnel employed by local
educational agencies or tribal educational agencies, as
applicable or schools served by the eligible entity
that--
(A) fosters safe and stable learning
environments that prevent and mitigate the
effects of trauma, including through social and
emotional learning;
(B) improves school capacity to identify,
refer, and provide services to students in need
of trauma-informed support or mental health
services, including by helping educators to
identify the unique personal and contextual
variables that influence the manifestation of
trauma; and
(C) reflects the best practices for trauma-
informed identification, referral, and support
developed by the Interagency Task Force on
Trauma-Informed Care (as established by section
7132).
(4) Providing trauma-informed support services and
mental health services to students at full-service
community schools served by the eligible entity.
(5) Engaging families and communities to increase
awareness of child trauma, which may include sharing
best practices with law enforcement regarding trauma-
informed services and working with mental health
professionals to provide interventions and longer term
coordinated care within the community for children and
youth who have experienced trauma and the families of
such children and youth.
(6) Evaluating the effectiveness of the initiatives,
activities, or programs carried out under this section
in increasing student access to evidence-based trauma
support services and mental health services.
(7) Establishing partnerships with or providing
subgrants to early childhood education programs or
other eligible entities, to include such entities in
the evidence-based trauma-informed or mental health
initiatives, activities, and support services
established under this section in order to provide,
develop, or improve prevention, referral, treatment,
and support services to children and their families.
(8) Establishing new, or enhancing existing,
evidence-based educational, awareness, and prevention
programs to improve mental health and resiliency among
teachers, paraprofessionals, school leaders, school-
based mental health services providers, and other
specialized instructional support personnel employed by
local educational agencies or tribal educational
agencies, as applicable, or schools served by the
eligible entity.
(d) Applications.--To be eligible to receive a grant,
contract, or cooperative agreement under this section, an
eligible entity shall submit an application to the Secretary at
such time, in such manner, and containing such information as
the Secretary may reasonably require, which shall include the
following:
(1) A description of the innovative initiatives,
activities, or programs to be funded under the grant,
contract, or cooperative agreement, including how such
initiatives, activities, or programs will increase
access to evidence-based trauma-informed support
services and mental health services for students, and,
as applicable, the families of such students.
(2) A description of how the initiatives, activities,
or programs will provide linguistically appropriate and
culturally competent services.
(3) A description of how the initiatives, activities,
or programs will support schools served by the eligible
entity in improving school climate in order to support
an environment conducive to learning.
(4) An assurance that--
(A) persons providing services under the
initiative, activity, or program funded by the
grant, contract, or cooperative agreement are
fully licensed or certified to provide such
services;
(B) teachers, school leaders, administrators,
school-based mental health services providers
and other specialized instructional support
personnel, representatives of local Indian
Tribes or tribal organizations as appropriate,
other school personnel, individuals who have
experience receiving mental health services as
children, and parents of students participating
in services under this section will be engaged
and involved in the design and implementation
of the services; and
(C) the eligible entity will comply with the
evaluation required under subsection (f).
(5) A description of how the eligible entity will
support and integrate existing school-based services at
schools served by the eligible entity with the
initiatives, activities, or programs funded under this
section in order to provide trauma-informed support
services or mental health services for students, as
appropriate.
(6) A description of how the eligible entity will
incorporate peer support services into the initiatives,
activities, or programs to be funded under this
section.
(7) A description of how the eligible entity will
ensure that initiatives, activities, or programs funded
under this section are accessible to and include
students with disabilities.
(8) An assurance that the eligible entity will
establish a local interagency agreement under
subsection (e) and comply with such agreement.
(e) Interagency Agreements.--
(1) Local interagency agreements.--In carrying out an
evidence-based initiative, activity, or program
described in subsection (c), an eligible entity that
receives a grant, contract, or cooperative agreement
under this section, or a designee of such entity, shall
establish an interagency agreement between local
educational agencies, agencies responsible for early
childhood education programs, Head Start agencies
(including Early Head Start agencies), juvenile justice
authorities, mental health agencies, child welfare
agencies, and other relevant agencies, authorities, or
entities in the community that will be involved in the
provision of services under such initiative, activity,
or program.
(2) Contents.--The local interagency agreement
required under paragraph (1) shall specify, with
respect to each agency, authority, or entity that is a
party to such agreement--
(A) the financial responsibility for any
services provided by such entity;
(B) the conditions and terms of
responsibility for such any services, including
quality, accountability, and coordination of
the services; and
(C) the conditions and terms of reimbursement
of such agencies, authorities, or entities,
including procedures for dispute resolution.
(f) Evaluation.--The Secretary shall conduct a rigorous and
independent evaluation of the initiatives, activities, and
programs carried out by an eligible entity under this section
and disseminate evidence-based practices regarding trauma-
informed support services and mental health services.
(g) Distribution of Awards.--The Secretary shall ensure that
grants, contracts, and cooperative agreements awarded or
entered into under this section are equitably distributed among
the geographical regions of the United States and among tribal,
urban, suburban, and rural populations.
(h) Rule of Construction.--Nothing in this section shall be
construed--
(1) to prohibit an entity involved with an
initiative, activity, or program carried out under this
section from reporting a crime that is committed by a
student to appropriate authorities; or
(2) to prevent Federal, State, local, and tribal law
enforcement and judicial authorities from exercising
their responsibilities with regard to the application
of Federal, State, local, and tribal law to crimes
committed by a student.
(i) Supplement, Not Supplant.--Federal funds provided under
this section shall be used to supplement, and not supplant,
other Federal, State, or local funds available to carry out the
initiatives, activities, and programs described in this
section.
(j) Consultation Required.--In awarding or entering into
grants, contracts, and cooperative agreements under this
section, the Secretary shall, in a timely manner, meaningfully
consult with Indian Tribes, Regional Corporations, Native
Hawaiian Educational Organizations, and their representatives
to ensure notice of eligibility.
(k) Definitions.--In this section:
(1) Early childhood education program.--The term
``early childhood education program'' has the meaning
given such term in section 103 of the Higher Education
Act of 1965 (20 U.S.C. 1003).
(2) Eligible entity.--The term ``eligible entity''
means--
(A) a State educational agency;
(B) a local educational agency;
(C) an Indian Tribe (as defined in section 4
of the Indian Self-Determination and Education
Assistance Act) or their tribal educational
agency;
(D) the Bureau of Indian Education;
(E) a Regional Corporation;
(F) a Native Hawaiian educational
organization; and
(G) State, Territory, and Tribal Lead
Agencies administering the Child Care and
Development Fund as described in section
658D(a) of the Child Care and Development Block
Grant Act (42 U.S.C. 9858b(a)).
(3) ESEA terms.--
(A) The terms ``elementary school'',
``evidence-based'', ``local educational
agency'', ``paraprofessional'', ``parent'',
``professional development'', ``school
leader'', ``secondary school'', ``Secretary'',
``specialized instructional support
personnel'', and ``State educational agency''
have the meanings given such terms in section
8101 of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7801).
(B) The term ``full-service community
school'' has the meaning given such term in
section 4622 of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 7272).
(C) The term ``Native Hawaiian educational
organization'' has the meaning given such term
in section 6207 of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 7517).
(D) The term ``school-based mental health
services provider'' has the meaning given the
term in section 4102 of the Elementary and
Secondary Education Act of 1965 (20 U.S.C.
7112).
(4) Regional corporation.--The term ``Regional
Corporation'' has the meaning given the term in section
3 of the Alaska Native Claims Settlement Act (43 U.S.C.
1602)).
(5) School.--The term ``school'' means a public
elementary school or public secondary school.
(l) Authorization of Appropriations.--There are authorized to
be appropriated to carry out this section, $50,000,000 for each
of fiscal years 2023 through 2027.
* * * * * * *
----------
HIGHER EDUCATION ACT OF 1965
* * * * * * *
TITLE I--GENERAL PROVISIONS
PART A--DEFINITIONS
* * * * * * *
SEC. 103. ADDITIONAL DEFINITIONS.
In this Act:
(1) Authorizing committees.--The term ``authorizing
committees'' means the Committee on Health, Education,
Labor, and Pensions of the Senate and the Committee on
Education and Labor of the House of Representatives.
(2) Combination of institutions of higher
education.--The term ``combination of institutions of
higher education'' means a group of institutions of
higher education that have entered into a cooperative
arrangement for the purpose of carrying out a common
objective, or a public or private nonprofit agency,
organization, or institution designated or created by a
group of institutions of higher education for the
purpose of carrying out a common objective on the
group`s behalf.
(3) Critical foreign language.--Except as otherwise
provided, the term ``critical foreign language'' means
each of the languages contained in the list of critical
languages designated by the Secretary in the Federal
Register on August 2, 1985 (50 Fed. Reg. 31412;
promulgated under the authority of section 212(d) of
the Education for Economic Security Act (repealed by
section 2303 of the Augustus F. Hawkins-Robert T.
Stafford Elementary and Secondary School Improvement
Amendments of 1988)), as updated by the Secretary from
time to time and published in the Federal Register,
except that in the implementation of this definition
with respect to a specific title, the Secretary may set
priorities according to the purposes of such title and
the national security, economic competitiveness, and
educational needs of the United States.
(4) Department.--The term ``Department'' means the
Department of Education.
(5) Diploma mill.--The term ``diploma mill'' means an
entity that--
(A)(i) offers, for a fee, degrees, diplomas,
or certificates, that may be used to represent
to the general public that the individual
possessing such a degree, diploma, or
certificate has completed a program of
postsecondary education or training; and
(ii) requires such individual to complete
little or no education or coursework to obtain
such degree, diploma, or certificate; and
(B) lacks accreditation by an accrediting
agency or association that is recognized as an
accrediting agency or association of
institutions of higher education (as such term
is defined in section 102) by--
(i) the Secretary pursuant to subpart
2 of part H of title IV; or
(ii) a Federal agency, State
government, or other organization or
association that recognizes accrediting
agencies or associations.
(6) Disability.--The term ``disability'' has the same
meaning given that term under [section 3(2)] section 3
of the Americans With Disabilities Act of 1990.
(7) Distance education.--
(A) In general.--Except as otherwise
provided, the term``distance education''means
education that uses one or more of the
technologies described in subparagraph (B)--
(i) to deliver instruction to
students who are separated from the
instructor; and
(ii) to support regular and
substantive interaction between the
students and the instructor,
synchronously or asynchronously.
(B) Inclusions.--For the purposes of
subparagraph (A), the technologies used may
include--
(i) the Internet;
(ii) one-way and two-way
transmissions through open broadcast,
closed circuit, cable, microwave,
broadband lines, fiber optics,
satellite, or wireless communications
devices;
(iii) audio conferencing; or
(iv) video cassettes, DVDs, and CD-
ROMs, if the cassettes, DVDs, or CD-
ROMs are used in a course in
conjunction with any of the
technologies listed in clauses (i)
through (iii).
(8) Early childhood education program.--The term
``early childhood education program'' means--
(A) a Head Start program or an Early Head
Start program carried out under the Head Start
Act (42 U.S.C. 9831 et seq.), including a
migrant or seasonal Head Start program, an
Indian Head Start program, or a Head Start
program or an Early Head Start program that
also receives State funding;
(B) a State licensed or regulated child care
program; or
(C) a program that--
(i) serves children from birth
through age six that addresses the
children`s cognitive (including
language, early literacy, and early
mathematics), social, emotional, and
physical development; and
(ii) is--
(I) a State prekindergarten
program;
(II) a program authorized
under section 619 or part C of
the Individuals with
Disabilities Education Act; or
(III) a program operated by a
local educational agency.
(9) Elementary school.--The term ``elementary
school'' has the same meaning given that term under
section 8101 of the Elementary and Secondary Education
Act of 1965.
(10) Gifted and talented.--The term ``gifted and
talented'' has the same meaning given that term under
section 8101 of the Elementary and Secondary Education
Act of 1965.
(11) Local educational agency.--The term ``local
educational agency'' has the same meaning given that
term under section 8101 of the Elementary and Secondary
Education Act of 1965.
(12) New borrower.--The term ``new borrower'' when
used with respect to any date means an individual who
on that date has no outstanding balance of principal or
interest owing on any loan made, insured, or guaranteed
under title IV.
(13) Nonprofit.--The term ``nonprofit'' as applied to
a school, agency, organization, or institution means a
school, agency, organization, or institution owned and
operated by one or more nonprofit corporations or
associations, no part of the net earnings of which
inures, or may lawfully inure, to the benefit of any
private shareholder or individual.
(14) Poverty line.--The term ``poverty line'' means
the poverty line (as defined in section 673(2) of the
Community Services Block Grant Act (42 U.S.C. 9902(2))
applicable to a family of the size involved.
(15) School or department of divinity.--The term
``school or department of divinity'' means an
institution, or a department or a branch of an
institution, the program of instruction of which is
designed for the education of students--
(A) to prepare the students to become
ministers of religion or to enter upon some
other religious vocation (or to provide
continuing training for any such vocation); or
(B) to prepare the students to teach
theological subjects.
(16) Secondary school.--The term ``secondary school''
has the same meaning given that term under section 8101
of the Elementary and Secondary Education Act of 1965.
(17) Secretary.--The term ``Secretary'' means the
Secretary of Education.
(18) Service-learning.--The term ``service-learning''
has the same meaning given that term under section
101(23) of the National and Community Service Act of
1990.
(19) Special education teacher.--The term ``special
education teacher'' means teachers who teach children
with disabilities as defined in section 602 of the
Individuals with Disabilities Education Act.
(20) State; freely associated states.--
(A) State.--The term ``State'' includes, in
addition to the several States of the United
States, the Commonwealth of Puerto Rico, the
District of Columbia, Guam, American Samoa, the
United States Virgin Islands, the Commonwealth
of the Northern Mariana Islands, and the Freely
Associated States.
(B) Freely associated states.--The term
``Freely Associated States'' means the Republic
of the Marshall Islands, the Federated States
of Micronesia, and the Republic of Palau.
(21) State educational agency.--The term ``State
educational agency'' has the same meaning given that
term under section 8101 of the Elementary and Secondary
Education Act of 1965.
(22) State higher education agency.--The term ``State
higher education agency'' means the officer or agency
primarily responsible for the State supervision of
higher education.
(23) Universal design.--The term``universal
design''has the meaning given the term in section 3 of
the Assistive Technology Act of 1998 (29 U.S.C. 3002).
(24) Universal design for learning.--The term
``universal design for learning'' means a
scientifically valid framework for guiding educational
practice that--
(A) provides flexibility in the ways
information is presented, in the ways students
respond or demonstrate knowledge and skills,
and in the ways students are engaged; and
(B) reduces barriers in instruction, provides
appropriate accommodations, supports, and
challenges, and maintains high achievement
expectations for all students, including
students with disabilities and students who are
limited English proficient.
* * * * * * *
TITLE IV--STUDENT ASSISTANCE
* * * * * * *
Part G--General Provisions Relating to Student Assistance Programs
* * * * * * *
SEC. 487. PROGRAM PARTICIPATION AGREEMENTS.
(a) Required for Programs of Assistance; Contents.--In order
to be an eligible institution for the purposes of any program
authorized under this title, an institution must be an
institution of higher education or an eligible institution (as
that term is defined for the purpose of that program) and
shall, except with respect to a program under subpart 4 of part
A, enter into a program participation agreement with the
Secretary. The agreement shall condition the initial and
continuing eligibility of an institution to participate in a
program upon compliance with the following requirements:
(1) The institution will use funds received by it for
any program under this title and any interest or other
earnings thereon solely for the purpose specified in
and in accordance with the provision of that program.
(2) The institution shall not charge any student a
fee for processing or handling any application, form,
or data required to determine the student`s eligibility
for assistance under this title or the amount of such
assistance.
(3) The institution will establish and maintain such
administrative and fiscal procedures and records as may
be necessary to ensure proper and efficient
administration of funds received from the Secretary or
from students under this title, together with
assurances that the institution will provide, upon
request and in a timely fashion, information relating
to the administrative capability and financial
responsibility of the institution to--
(A) the Secretary;
(B) the appropriate guaranty agency; and
(C) the appropriate accrediting agency or
association.
(4) The institution will comply with the provisions
of subsection (c) of this section and the regulations
prescribed under that subsection, relating to fiscal
eligibility.
(5) The institution will submit reports to the
Secretary and, in the case of an institution
participating in a program under part B or part E, to
holders of loans made to the institution`s students
under such parts at such times and containing such
information as the Secretary may reasonably require to
carry out the purpose of this title.
(6) The institution will not provide any student with
any statement or certification to any lender under part
B that qualifies the student for a loan or loans in
excess of the amount that student is eligible to borrow
in accordance with sections 425(a), 428(a)(2), and
428(b)(1) (A) and (B).
(7) The institution will comply with the requirements
of section 485.
(8) In the case of an institution that advertises job
placement rates as a means of attracting students to
enroll in the institution, the institution will make
available to prospective students, at or before the
time of application (A) the most recent available data
concerning employment statistics, graduation
statistics, and any other information necessary to
substantiate the truthfulness of the advertisements,
and (B) relevant State licensing requirements of the
State in which such institution is located for any job
for which the course of instruction is designed to
prepare such prospective students.
(9) In the case of an institution participating in a
program under part B or D, the institution will inform
all eligible borrowers enrolled in the institution
about the availability and eligibility of such
borrowers for State grant assistance from the State in
which the institution is located, and will inform such
borrowers from another State of the source for further
information concerning such assistance from that State.
(10) The institution certifies that it has in
operation a drug abuse prevention program that is
determined by the institution to be accessible to any
officer, employee, or student at the institution.
(11) In the case of any institution whose students
receive financial assistance pursuant to section
484(d), the institution will make available to such
students a program proven successful in assisting
students in obtaining a certificate of high school
equivalency.
(12) The institution certifies that--
(A) the institution has established a campus
security policy; and
(B) the institution has complied with the
disclosure requirements of section 485(f).
(13) The institution will not deny any form of
Federal financial aid to any student who meets the
eligibility requirements of this title on the grounds
that the student is participating in a program of study
abroad approved for credit by the institution.
(14)(A) The institution, in order to participate as
an eligible institution under part B or D, will develop
a Default Management Plan for approval by the Secretary
as part of its initial application for certification as
an eligible institution and will implement such Plan
for two years thereafter.
(B) Any institution of higher education which changes
ownership and any eligible institution which changes
its status as a parent or subordinate institution
shall, in order to participate as an eligible
institution under part B or D, develop a Default
Management Plan for approval by the Secretary and
implement such Plan for two years after its change of
ownership or status.
(C) This paragraph shall not apply in the case of an
institution in which (i) neither the parent nor the
subordinate institution has a cohort default rate in
excess of 10 percent, and (ii) the new owner of such
parent or subordinate institution does not, and has
not, owned any other institution with a cohort default
rate in excess of 10 percent.
(15) The institution acknowledges the authority of
the Secretary, guaranty agencies, lenders, accrediting
agencies, the Secretary of Veterans Affairs, and the
State agencies under subpart 1 of part H to share with
each other any information pertaining to the
institution`s eligibility to participate in programs
under this title or any information on fraud and abuse.
(16)(A) The institution will not knowingly employ an
individual in a capacity that involves the
administration of programs under this title, or the
receipt of program funds under this title, who has been
convicted of, or has pled nolo contendere or guilty to,
a crime involving the acquisition, use, or expenditure
of funds under this title, or has been judicially
determined to have committed fraud involving funds
under this title or contract with an institution or
third party servicer that has been terminated under
section 432 involving the acquisition, use, or
expenditure of funds under this title, or who has been
judicially determined to have committed fraud involving
funds under this title.
(B) The institution will not knowingly contract with
or employ any individual, agency, or organization that
has been, or whose officers or employees have been--
(i) convicted of, or pled nolo contendere or
guilty to, a crime involving the acquisition,
use, or expenditure of funds under this title;
or
(ii) judicially determined to have committed
fraud involving funds under this title.
(17) The institution will complete surveys conducted
as a part of the Integrated Postsecondary Education
Data System (IPEDS) or any other Federal postsecondary
institution data collection effort, as designated by
the Secretary, in a timely manner and to the
satisfaction of the Secretary.
(18) The institution will meet the requirements
established pursuant to section 485(g).
(19) The institution will not impose any penalty,
including the assessment of late fees, the denial of
access to classes, libraries, or other institutional
facilities, or the requirement that the student borrow
additional funds, on any student because of the
student`s inability to meet his or her financial
obligations to the institution as a result of the
delayed disbursement of the proceeds of a loan made
under this title due to compliance with the provisions
of this title, or delays attributable to the
institution.
(20) The institution will not provide any commission,
bonus, or other incentive payment based directly or
indirectly on success in securing enrollments or
financial aid to any persons or entities engaged in any
student recruiting or admission activities or in making
decisions regarding the award of student financial
assistance, except that this paragraph shall not apply
to the recruitment of foreign students residing in
foreign countries who are not eligible to receive
Federal student assistance.
(21) The institution will meet the requirements
established by the Secretary and accrediting agencies
or associations, and will provide evidence to the
Secretary that the institution has the authority to
operate within a State.
(22) The institution will comply with the refund
policy established pursuant to section 484B.
(23)(A) The institution, if located in a State to
which section 4(b) of the National Voter Registration
Act of 1993 (42 U.S.C. 1973gg-2(b)) does not apply,
will make a good faith effort to distribute a mail
voter registration form, requested and received from
the State, to each student enrolled in a degree or
certificate program and physically in attendance at the
institution, and to make such forms widely available to
students at the institution.
(B) The institution shall request the forms from the
State 120 days prior to the deadline for registering to
vote within the State. If an institution has not
received a sufficient quantity of forms to fulfill this
section from the State within 60 days prior to the
deadline for registering to vote in the State, the
institution shall not be held liable for not meeting
the requirements of this section during that election
year.
(C) This paragraph shall apply to general and special
elections for Federal office, as defined in section
301(3) of the Federal Election Campaign Act of 1971 (2
U.S.C. 431(3)), and to the elections for Governor or
other chief executive within such State).
(D) The institution shall be considered in
compliance with the requirements of
subparagraph (A) for each student to whom the
institution electronically transmits a message
containing a voter registration form acceptable
for use in the State in which the institution
is located, or an Internet address where such a
form can be downloaded, if such information is
in an electronic message devoted exclusively to
voter registration.
(24) In the case of a proprietary institution of
higher education (as defined in section 102(b)), such
institution will derive not less than ten percent of
such institution`s revenues from sources other than
Federal funds that are disbursed or delivered to or on
behalf of a student to be used to attend such
institution (referred to in this paragraph and
subsection (d) as ``Federal education assistance
funds''), as calculated in accordance with subsection
(d)(1), or will be subject to the sanctions described
in subsection (d)(2).
(25) In the case of an institution that participates
in a loan program under this title, the institution
will--
(A) develop a code of conduct with respect to
such loans with which the institution`s
officers, employees, and agents shall comply,
that--
(i) prohibits a conflict of interest
with the responsibilities of an
officer, employee, or agent of an
institution with respect to such loans;
and
(ii) at a minimum, includes the
provisions described in subsection (e);
(B) publish such code of conduct prominently
on the institution`s website; and
(C) administer and enforce such code by, at a
minimum, requiring that all of the
institution`s officers, employees, and agents
with responsibilities with respect to such
loans be annually informed of the provisions of
the code of conduct.
(26) The institution will, upon written request,
disclose to the alleged victim of any crime of violence
(as that term is defined in section 16 of title 18,
United States Code), or a nonforcible sex offense, the
report on the results of any disciplinary proceeding
conducted by such institution against a student who is
the alleged perpetrator of such crime or offense with
respect to such crime or offense. If the alleged victim
of such crime or offense is deceased as a result of
such crime or offense, the next of kin of such victim
shall be treated as the alleged victim for purposes of
this paragraph.
(27) In the case of an institution that has entered
into a preferred lender arrangement, the institution
will at least annually compile, maintain, and make
available for students attending the institution, and
the families of such students, a list, in print or
other medium, of the specific lenders for loans made,
insured, or guaranteed under this title or private
education loans that the institution recommends,
promotes, or endorses in accordance with such preferred
lender arrangement. In making such list, the
institution shall comply with the requirements of
subsection (h).
(28)(A) The institution will, upon the request of an
applicant for a private education loan, provide to the
applicant the form required under section 128(e)(3) of
the Truth in Lending Act (15 U.S.C. 1638(e)(3)), and
the information required to complete such form, to the
extent the institution possesses such information.
(B) For purposes of this paragraph, the term
``private education loan'' has the meaning given such
term in section 140 of the Truth in Lending Act.
(29) The institution certifies that the institution--
(A) has developed plans to effectively combat
the unauthorized distribution of copyrighted
material, including through the use of a
variety of technology-based deterrents; and
(B) will, to the extent practicable, offer
alternatives to illegal downloading or peer-to-
peer distribution of intellectual property, as
determined by the institution in consultation
with the chief technology officer or other
designated officer of the institution.
(30)(A) The institution will carry out the following:
(i) Adopt policies that make any of the
following documentation submitted by an
individual sufficient to establish that such
individual is an individual with a disability:
(I) Documentation that the individual
has had an individualized education
program (IEP) in accordance with
section 614(d) of the Individuals with
Disabilities Education Act (20 U.S.C.
1414(d)), including an IEP that may not
be current on the date of the
determination that the individual has a
disability. The institution may ask for
additional documentation from an
individual who had an IEP but who was
subsequently evaluated and determined
to be ineligible for services under the
Individuals with Disabilities Education
Act, including an individual determined
to be ineligible during elementary
school.
(II) Documentation describing
services or accommodations provided to
the individual pursuant to section 504
of the Rehabilitation Act of 1973 (29
U.S.C. 794) (commonly referred to as a
``Section 504 plan'').
(III) A plan or record of service for
the individual from a private school, a
local educational agency, a State
educational agency, or an institution
of higher education provided in
accordance with the Americans with
Disabilities Act of 1990 (42 U.S.C.
12101 et seq.).
(IV) A record or evaluation from a
relevant licensed professional finding
that the individual has a disability.
(V) A plan or record of disability
from another institution of higher
education.
(VI) Documentation of a disability
due to service in the uniformed
services, as defined in section
484C(a).
(ii) Adopt policies that are transparent and
explicit regarding information about the
process by which the institution determines
eligibility for accommodations.
(iii) Disseminate such information to
students, parents, and faculty in an accessible
format, including during any student
orientation and making such information readily
available on a public website of the
institution.
(B) Nothing in this paragraph shall be construed to
preclude an institution from establishing less
burdensome criteria than that described in subparagraph
(A) to establish an individual as an individual with a
disability and therefore eligible for accommodations.
(31) The institution will submit, for inclusion in
the Integrated Postsecondary Education Data System
(IPEDS) or any other Federal postsecondary institution
data collection effort, key data related to
undergraduate students enrolled at the institution who
are formally registered as students with disabilities
with the institution`s office of disability services
(or the equivalent office), including the total number
of students with disabilities enrolled, the number of
students accessing or receiving accommodations, the
percentage of students with disabilities of all
undergraduate students, and the total number of
undergraduate certificates or degrees awarded to
students with disabilities. An institution shall not be
required to submit the information described in the
preceding sentence if the number of such students would
reveal personally identifiable information about an
individual student.
(b) Hearings.--(1) An institution that has received written
notice of a final audit or program review determination and
that desires to have such determination reviewed by the
Secretary shall submit to the Secretary a written request for
review not later than 45 days after receipt of notification of
the final audit or program review determination.
(2) The Secretary shall, upon receipt of written notice under
paragraph (1), arrange for a hearing and notify the institution
within 30 days of receipt of such notice the date, time, and
place of such hearing. Such hearing shall take place not later
than 120 days from the date upon which the Secretary notifies
the institution.
(c) Audits; Financial Responsibility; Enforcement of
Standards.--(1) Notwithstanding any other provisions of this
title, the Secretary shall prescribe such regulations as may be
necessary to provide for--
(A)(i) except as provided in clauses (ii) and (iii),
a financial audit of an eligible institution with
regard to the financial condition of the institution in
its entirety, and a compliance audit of such
institution with regard to any funds obtained by it
under this title or obtained from a student or a parent
who has a loan insured or guaranteed by the Secretary
under this title, on at least an annual basis and
covering the period since the most recent audit,
conducted by a qualified, independent organization or
person in accordance with standards established by the
Comptroller General for the audit of governmental
organizations, programs, and functions, and as
prescribed in regulations of the Secretary, the results
of which shall be submitted to the Secretary and shall
be available to cognizant guaranty agencies, eligible
lenders, State agencies, and the appropriate State
agency notifying the Secretary under subpart 1 of part
H, except that the Secretary may modify the
requirements of this clause with respect to
institutions of higher education that are foreign
institutions, and may waive such requirements with
respect to a foreign institution whose students receive
less than $500,000 in loans under this title during the
award year preceding the audit period;
(ii) with regard to an eligible institution which is
audited under chapter 75 of title 31, United States
Code, deeming such audit to satisfy the requirements of
clause (i) for the period covered by such audit; or
(iii) at the discretion of the Secretary, with regard
to an eligible institution (other than an eligible
institution described in section 102(a)(1)(C)) that has
obtained less than $200,000 in funds under this title
during each of the 2 award years that precede the audit
period and submits a letter of credit payable to the
Secretary equal to not less than \1/2\ of the annual
potential liabilities of such institution as determined
by the Secretary, deeming an audit conducted every 3
years to satisfy the requirements of clause (i), except
for the award year immediately preceding renewal of the
institution`s eligibility under section 498(g);
(B) in matters not governed by specific program
provisions, the establishment of reasonable standards
of financial responsibility and appropriate
institutional capability for the administration by an
eligible institution of a program of student financial
aid under this title, including any matter the
Secretary deems necessary to the sound administration
of the financial aid programs, such as the pertinent
actions of any owner, shareholder, or person exercising
control over an eligible institution;
(C)(i) except as provided in clause (ii), a
compliance audit of a third party servicer (other than
with respect to the servicer`s functions as a lender if
such functions are otherwise audited under this part
and such audits meet the requirements of this clause),
with regard to any contract with an eligible
institution, guaranty agency, or lender for
administering or servicing any aspect of the student
assistance programs under this title, at least once
every year and covering the period since the most
recent audit, conducted by a qualified, independent
organization or person in accordance with standards
established by the Comptroller General for the audit of
governmental organizations, programs, and functions,
and as prescribed in regulations of the Secretary, the
results of which shall be submitted to the Secretary;
or
(ii) with regard to a third party servicer that is
audited under chapter 75 of title 31, United States
Code, such audit shall be deemed to satisfy the
requirements of clause (i) for the period covered by
such audit;
(D)(i) a compliance audit of a secondary market with
regard to its transactions involving, and its servicing
and collection of, loans made under this title, at
least once a year and covering the period since the
most recent audit, conducted by a qualified,
independent organization or person in accordance with
standards established by the Comptroller General for
the audit of governmental organizations, programs, and
functions, and as prescribed in regulations of the
Secretary, the results of which shall be submitted to
the Secretary; or
(ii) with regard to a secondary market that is
audited under chapter 75 of title 31, United States
Code, such audit shall be deemed to satisfy the
requirements of clause (i) for the period covered by
the audit;
(E) the establishment, by each eligible institution
under part B responsible for furnishing to the lender
the statement required by section 428(a)(2)(A)(i), of
policies and procedures by which the latest known
address and enrollment status of any student who has
had a loan insured under this part and who has either
formally terminated his enrollment, or failed to re-
enroll on at least a half-time basis, at such
institution, shall be furnished either to the holder
(or if unknown, the insurer) of the note, not later
than 60 days after such termination or failure to re-
enroll;
(F) the limitation, suspension, or termination of the
participation in any program under this title of an
eligible institution, or the imposition of a civil
penalty under paragraph (3)(B) whenever the Secretary
has determined, after reasonable notice and opportunity
for hearing, that such institution has violated or
failed to carry out any provision of this title, any
regulation prescribed under this title, or any
applicable special arrangement, agreement, or
limitation, except that no period of suspension under
this section shall exceed 60 days unless the
institution and the Secretary agree to an extension or
unless limitation or termination proceedings are
initiated by the Secretary within that period of time;
(G) an emergency action against an institution, under
which the Secretary shall, effective on the date on
which a notice and statement of the basis of the action
is mailed to the institution (by registered mail,
return receipt requested), withhold funds from the
institution or its students and withdraw the
institution`s authority to obligate funds under any
program under this title, if the Secretary--
(i) receives information, determined by the
Secretary to be reliable, that the institution
is violating any provision of this title, any
regulation prescribed under this title, or any
applicable special arrangement, agreement, or
limitation,
(ii) determines that immediate action is
necessary to prevent misuse of Federal funds,
and
(iii) determines that the likelihood of loss
outweighs the importance of the procedures
prescribed under subparagraph (D) for
limitation, suspension, or termination,
except that an emergency action shall not exceed 30
days unless limitation, suspension, or termination
proceedings are initiated by the Secretary against the
institution within that period of time, and except that
the Secretary shall provide the institution an
opportunity to show cause, if it so requests, that the
emergency action is unwarranted;
(H) the limitation, suspension, or termination of the
eligibility of a third party servicer to contract with
any institution to administer any aspect of an
institution`s student assistance program under this
title, or the imposition of a civil penalty under
paragraph (3)(B), whenever the Secretary has
determined, after reasonable notice and opportunity for
a hearing, that such organization, acting on behalf of
an institution, has violated or failed to carry out any
provision of this title, any regulation prescribed
under this title, or any applicable special
arrangement, agreement, or limitation, except that no
period of suspension under this subparagraph shall
exceed 60 days unless the organization and the
Secretary agree to an extension, or unless limitation
or termination proceedings are initiated by the
Secretary against the individual or organization within
that period of time; and
(I) an emergency action against a third party
servicer that has contracted with an institution to
administer any aspect of the institution`s student
assistance program under this title, under which the
Secretary shall, effective on the date on which a
notice and statement of the basis of the action is
mailed to such individual or organization (by
registered mail, return receipt requested), withhold
funds from the individual or organization and withdraw
the individual or organization`s authority to act on
behalf of an institution under any program under this
title, if the Secretary--
(i) receives information, determined by the
Secretary to be reliable, that the individual
or organization, acting on behalf of an
institution, is violating any provision of this
title, any regulation prescribed under this
title, or any applicable special arrangement,
agreement, or limitation,
(ii) determines that immediate action is
necessary to prevent misuse of Federal funds,
and
(iii) determines that the likelihood of loss
outweighs the importance of the procedures
prescribed under subparagraph (F), for
limitation, suspension, or termination,
except that an emergency action shall not exceed 30
days unless the limitation, suspension, or termination
proceedings are initiated by the Secretary against the
individual or organization within that period of time,
and except that the Secretary shall provide the
individual or organization an opportunity to show
cause, if it so requests, that the emergency action is
unwarranted.
(2) If an individual who, or entity that, exercises
substantial control, as determined by the Secretary in
accordance with the definition of substantial control in
subpart 3 of part H, over one or more institutions
participating in any program under this title, or, for purposes
of paragraphs (1) (H) and (I), over one or more organizations
that contract with an institution to administer any aspect of
the institution`s student assistance program under this title,
is determined to have committed one or more violations of the
requirements of any program under this title, or has been
suspended or debarred in accordance with the regulations of the
Secretary, the Secretary may use such determination,
suspension, or debarment as the basis for imposing an emergency
action on, or limiting, suspending, or terminating, in a single
proceeding, the participation of any or all institutions under
the substantial control of that individual or entity.
(3)(A) Upon determination, after reasonable notice and
opportunity for a hearing, that an eligible institution has
engaged in substantial misrepresentation of the nature of its
educational program, its financial charges, or the
employability of its graduates, the Secretary may suspend or
terminate the eligibility status for any or all programs under
this title of any otherwise eligible institution, in accordance
with procedures specified in paragraph (1)(D) of this
subsection, until the Secretary finds that such practices have
been corrected.
(B)(i) Upon determination, after reasonable notice and
opportunity for a hearing, that an eligible institution--
(I) has violated or failed to carry out any provision
of this title or any regulation prescribed under this
title; or
(II) has engaged in substantial misrepresentation of
the nature of its educational program, its financial
charges, and the employability of its graduates,
the Secretary may impose a civil penalty upon such institution
of not to exceed $25,000 for each violation or
misrepresentation.
(ii) Any civil penalty may be compromised by the Secretary.
In determining the amount of such penalty, or the amount agreed
upon in compromise, the appropriateness of the penalty to the
size of the institution of higher education subject to the
determination, and the gravity of the violation, failure, or
misrepresentation shall be considered. The amount of such
penalty, when finally determined, or the amount agreed upon in
compromise, may be deducted from any sums owing by the United
States to the institution charged.
(4) The Secretary shall publish a list of State agencies
which the Secretary determines to be reliable authority as to
the quality of public postsecondary vocational education in
their respective States for the purpose of determining
eligibility for all Federal student assistance programs.
(5) The Secretary shall make readily available to appropriate
guaranty agencies, eligible lenders, State agencies notifying
the Secretary under subpart 1 of part H, and accrediting
agencies or associations the results of the audits of eligible
institutions conducted pursuant to paragraph (1)(A).
(6) The Secretary is authorized to provide any information
collected as a result of audits conducted under this section,
together with audit information collected by guaranty agencies,
to any Federal or State agency having responsibilities with
respect to student financial assistance, including those
referred to in subsection (a)(15) of this section.
(7) Effective with respect to any audit conducted under this
subsection after December 31, 1988, if, in the course of
conducting any such audit, the personnel of the Department of
Education discover, or are informed of, grants or other
assistance provided by an institution in accordance with this
title for which the institution has not received funds
appropriated under this title (in the amount necessary to
provide such assistance), including funds for which
reimbursement was not requested prior to such discovery or
information, such institution shall be permitted to offset that
amount against any sums determined to be owed by the
institution pursuant to such audit, or to receive reimbursement
for that amount (if the institution does not owe any such
sums).
(d) Implementation of Non-Federal Revenue Requirement.--
(1) Calculation.--In making calculations under
subsection (a)(24), a proprietary institution of higher
education shall--
(A) use the cash basis of accounting, except
in the case of loans described in subparagraph
(D)(i) that are made by the proprietary
institution of higher education;
(B) consider as revenue only those funds
generated by the institution from--
(i) tuition, fees, and other
institutional charges for students
enrolled in programs eligible for
assistance under this title;
(ii) activities conducted by the
institution that are necessary for the
education and training of the
institution`s students, if such
activities are--
(I) conducted on campus or at
a facility under the control of
the institution;
(II) performed under the
supervision of a member of the
institution`s faculty; and
(III) required to be
performed by all students in a
specific educational program at
the institution; and
(iii) funds paid by a student, or on
behalf of a student by a party other
than the institution, for an education
or training program that is not
eligible for funds under this title, if
the program--
(I) is approved or licensed
by the appropriate State
agency;
(II) is accredited by an
accrediting agency recognized
by the Secretary; or
(III) provides an industry-
recognized credential or
certification;
(C) presume that any Federal education
assistance funds that are disbursed or
delivered to or on behalf of a student will be
used to pay the student`s tuition, fees, or
other institutional charges, regardless of
whether the institution credits those funds to
the student`s account or pays those funds
directly to the student, except to the extent
that the student`s tuition, fees, or other
institutional charges are satisfied by--
(i) grant funds provided by non-
Federal public agencies or private
sources independent of the institution;
(ii) funds provided under a
contractual arrangement with a Federal,
State, or local government agency for
the purpose of providing job training
to low-income individuals who are in
need of that training;
(iii) funds used by a student from
savings plans for educational expenses
established by or on behalf of the
student and which qualify for special
tax treatment under the Internal
Revenue Code of 1986; or
(iv) institutional scholarships
described in subparagraph (D)(iii);
(D) include institutional aid as revenue to
the school only as follows:
(i) in the case of loans made by a
proprietary institution of higher
education on or after July 1, 2008 and
prior to July 1, 2012, the net present
value of such loans made by the
institution during the applicable
institutional fiscal year accounted for
on an accrual basis and estimated in
accordance with generally accepted
accounting principles and related
standards and guidance, if the loans--
(I) are bona fide as
evidenced by enforceable
promissory notes;
(II) are issued at intervals
related to the institution`s
enrollment periods; and
(III) are subject to regular
loan repayments and
collections;
(ii) in the case of loans made by a
proprietary institution of higher
education on or after July 1, 2012,
only the amount of loan repayments
received during the applicable
institutional fiscal year, excluding
repayments on loans made and accounted
for as specified in clause (i); and
(iii) in the case of scholarships
provided by a proprietary institution
of higher education, only those
scholarships provided by the
institution in the form of monetary aid
or tuition discounts based upon the
academic achievements or financial need
of students, disbursed during each
fiscal year from an established
restricted account, and only to the
extent that funds in that account
represent designated funds from an
outside source or from income earned on
those funds;
(E) in the case of each student who receives
a loan on or after July 1, 2008, and prior to
July 1, 2011, that is authorized under section
428H or that is a Federal Direct Unsubsidized
Stafford Loan, treat as revenue received by the
institution from sources other than funds
received under this title, the amount by which
the disbursement of such loan received by the
institution exceeds the limit on such loan in
effect on the day before the date of enactment
of the Ensuring Continued Access to Student
Loans Act of 2008; and
(F) exclude from revenues--
(i) the amount of funds the
institution received under part C,
unless the institution used those funds
to pay a student`s institutional
charges;
(ii) the amount of funds the
institution received under subpart 4 of
part A;
(iii) the amount of funds provided by
the institution as matching funds for a
program under this title;
(iv) the amount of funds provided by
the institution for a program under
this title that are required to be
refunded or returned; and
(v) the amount charged for books,
supplies, and equipment, unless the
institution includes that amount as
tuition, fees, or other institutional
charges.
(2) Sanctions.--
(A) Ineligibility.--A proprietary institution
of higher education that fails to meet a
requirement of subsection (a)(24) for two
consecutive institutional fiscal years shall be
ineligible to participate in the programs
authorized by this title for a period of not
less than two institutional fiscal years. To
regain eligibility to participate in the
programs authorized by this title, a
proprietary institution of higher education
shall demonstrate compliance with all
eligibility and certification requirements
under section 498 for a minimum of two
institutional fiscal years after the
institutional fiscal year in which the
institution became ineligible.
(B) Additional enforcement.--In addition to
such other means of enforcing the requirements
of this title as may be available to the
Secretary, if a proprietary institution of
higher education fails to meet a requirement of
subsection (a)(24) for any institutional fiscal
year, then the institution`s eligibility to
participate in the programs authorized by this
title becomes provisional for the two
institutional fiscal years after the
institutional fiscal year in which the
institution failed to meet the requirement of
subsection (a)(24), except that such
provisional eligibility shall terminate--
(i) on the expiration date of the
institution`s program participation
agreement under this subsection that is
in effect on the date the Secretary
determines that the institution failed
to meet the requirement of subsection
(a)(24); or
(ii) in the case that the Secretary
determines that the institution failed
to meet a requirement of subsection
(a)(24) for two consecutive
institutional fiscal years, on the date
the institution is determined
ineligible in accordance with
subparagraph (A).
(3) Publication on college navigator website.--The
Secretary shall publicly disclose on the College
Navigator website--
(A) the identity of any proprietary
institution of higher education that fails to
meet a requirement of subsection (a)(24); and
(B) the extent to which the institution
failed to meet such requirement.
(4) Report to congress.--Not later than July 1, 2009,
and July 1 of each succeeding year, the Secretary shall
submit to the authorizing committees a report that
contains, for each proprietary institution of higher
education that receives assistance under this title, as
provided in the audited financial statements submitted
to the Secretary by each institution pursuant to the
requirements of subsection (a)(24)--
(A) the amount and percentage of such
institution`s revenues received from sources
under this title; and
(B) the amount and percentage of such
institution`s revenues received from other
sources.
(e) Code of Conduct Requirements.--An institution of higher
education`s code of conduct, as required under subsection
(a)(25), shall include the following requirements:
(1) Ban on revenue-sharing arrangements.--
(A) Prohibition.--The institution shall not
enter into any revenue-sharing arrangement with
any lender.
(B) Definition.--For purposes of this
paragraph, the term ``revenue-sharing
arrangement'' means an arrangement between an
institution and a lender under which--
(i) a lender provides or issues a
loan that is made, insured, or
guaranteed under this title to students
attending the institution or to the
families of such students; and
(ii) the institution recommends the
lender or the loan products of the
lender and in exchange, the lender pays
a fee or provides other material
benefits, including revenue or profit
sharing, to the institution, an officer
or employee of the institution, or an
agent.
(2) Gift ban.--
(A) Prohibition.--No officer or employee of
the institution who is employed in the
financial aid office of the institution or who
otherwise has responsibilities with respect to
education loans, or agent who has
responsibilities with respect to education
loans, shall solicit or accept any gift from a
lender, guarantor, or servicer of education
loans.
(B) Definition of gift.--
(i) In general.--In this paragraph,
the term ``gift'' means any gratuity,
favor, discount, entertainment,
hospitality, loan, or other item having
a monetary value of more than a de
minimus amount. The term includes a
gift of services, transportation,
lodging, or meals, whether provided in
kind, by purchase of a ticket, payment
in advance, or reimbursement after the
expense has been incurred.
(ii) Exceptions.--The term ``gift''
shall not include any of the following:
(I) Standard material,
activities, or programs on
issues related to a loan,
default aversion, default
prevention, or financial
literacy, such as a brochure, a
workshop, or training.
(II) Food, refreshments,
training, or informational
material furnished to an
officer or employee of an
institution, or to an agent, as
an integral part of a training
session that is designed to
improve the service of a
lender, guarantor, or servicer
of education loans to the
institution, if such training
contributes to the professional
development of the officer,
employee, or agent.
(III) Favorable terms,
conditions, and borrower
benefits on an education loan
provided to a student employed
by the institution if such
terms, conditions, or benefits
are comparable to those
provided to all students of the
institution.
(IV) Entrance and exit
counseling services provided to
borrowers to meet the
institution`s responsibilities
for entrance and exit
counseling as required by
subsections (b) and (l) of
section 485, as long as--
(aa) the
institution`s staff are
in control of the
counseling, (whether in
person or via
electronic
capabilities); and
(bb) such counseling
does not promote the
products or services of
any specific lender.
(V) Philanthropic
contributions to an institution
from a lender, servicer, or
guarantor of education loans
that are unrelated to education
loans or any contribution from
any lender, guarantor, or
servicer that is not made in
exchange for any advantage
related to education loans.
(VI) State education grants,
scholarships, or financial aid
funds administered by or on
behalf of a State.
(iii) Rule for gifts to family
members.--For purposes of this
paragraph, a gift to a family member of
an officer or employee of an
institution, to a family member of an
agent, or to any other individual based
on that individual`s relationship with
the officer, employee, or agent, shall
be considered a gift to the officer,
employee, or agent if--
(I) the gift is given with
the knowledge and acquiescence
of the officer, employee, or
agent; and
(II) the officer, employee,
or agent has reason to believe
the gift was given because of
the official position of the
officer, employee, or agent.
(3) Contracting arrangements prohibited.--
(A) Prohibition.--An officer or employee who
is employed in the financial aid office of the
institution or who otherwise has
responsibilities with respect to education
loans, or an agent who has responsibilities
with respect to education loans, shall not
accept from any lender or affiliate of any
lender any fee, payment, or other financial
benefit (including the opportunity to purchase
stock) as compensation for any type of
consulting arrangement or other contract to
provide services to a lender or on behalf of a
lender relating to education loans.
(B) Exceptions.--Nothing in this subsection
shall be construed as prohibiting--
(i) an officer or employee of an
institution who is not employed in the
institution`s financial aid office and
who does not otherwise have
responsibilities with respect to
education loans, or an agent who does
not have responsibilities with respect
to education loans, from performing
paid or unpaid service on a board of
directors of a lender, guarantor, or
servicer of education loans;
(ii) an officer or employee of the
institution who is not employed in the
institution`s financial aid office but
who has responsibility with respect to
education loans as a result of a
position held at the institution, or an
agent who has responsibility with
respect to education loans, from
performing paid or unpaid service on a
board of directors of a lender,
guarantor, or servicer of education
loans, if the institution has a written
conflict of interest policy that
clearly sets forth that officers,
employees, or agents must recuse
themselves from participating in any
decision of the board regarding
education loans at the institution; or
(iii) an officer, employee, or
contractor of a lender, guarantor, or
servicer of education loans from
serving on a board of directors, or
serving as a trustee, of an
institution, if the institution has a
written conflict of interest policy
that the board member or trustee must
recuse themselves from any decision
regarding education loans at the
institution.
(4) Interaction with borrowers.--The institution
shall not--
(A) for any first-time borrower, assign,
through award packaging or other methods, the
borrower`s loan to a particular lender; or
(B) refuse to certify, or delay certification
of, any loan based on the borrower`s selection
of a particular lender or guaranty agency.
(5) Prohibition on offers of funds for private
loans.--
(A) Prohibition.--The institution shall not
request or accept from any lender any offer of
funds to be used for private education loans
(as defined in section 140 of the Truth in
Lending Act), including funds for an
opportunity pool loan, to students in exchange
for the institution providing concessions or
promises regarding providing the lender with--
(i) a specified number of loans made,
insured, or guaranteed under this
title;
(ii) a specified loan volume of such
loans; or
(iii) a preferred lender arrangement
for such loans.
(B) Definition of opportunity pool loan.--In
this paragraph, the term ``opportunity pool
loan'' means a private education loan made by a
lender to a student attending the institution
or the family member of such a student that
involves a payment, directly or indirectly, by
such institution of points, premiums,
additional interest, or financial support to
such lender for the purpose of such lender
extending credit to the student or the family.
(6) Ban on staffing assistance.--
(A) Prohibition.--The institution shall not
request or accept from any lender any
assistance with call center staffing or
financial aid office staffing.
(B) Certain assistance permitted.--Nothing in
paragraph (1) shall be construed to prohibit
the institution from requesting or accepting
assistance from a lender related to--
(i) professional development training
for financial aid administrators;
(ii) providing educational counseling
materials, financial literacy
materials, or debt management materials
to borrowers, provided that such
materials disclose to borrowers the
identification of any lender that
assisted in preparing or providing such
materials; or
(iii) staffing services on a short-
term, nonrecurring basis to assist the
institution with financial aid-related
functions during emergencies, including
State-declared or federally declared
natural disasters, federally declared
national disasters, and other localized
disasters and emergencies identified by
the Secretary.
(7) Advisory board compensation.--Any employee who is
employed in the financial aid office of the
institution, or who otherwise has responsibilities with
respect to education loans or other student financial
aid of the institution, and who serves on an advisory
board, commission, or group established by a lender,
guarantor, or group of lenders or guarantors, shall be
prohibited from receiving anything of value from the
lender, guarantor, or group of lenders or guarantors,
except that the employee may be reimbursed for
reasonable expenses incurred in serving on such
advisory board, commission, or group.
(f) Institutional Requirements for Teach-Outs.--
(1) In general.--In the event the Secretary initiates
the limitation, suspension, or termination of the
participation of an institution of higher education in
any program under this title under the authority of
subsection (c)(1)(F) or initiates an emergency action
under the authority of subsection (c)(1)(G) and its
prescribed regulations, the Secretary shall require
that institution to prepare a teach-out plan for
submission to the institution`s accrediting agency or
association in compliance with section 496(c)(3), the
Secretary`s regulations on teach-out plans, and the
standards of the institution`s accrediting agency or
association.
(2) Teach-out plan defined.--In this subsection, the
term ``teach-out plan'' means a written plan that
provides for the equitable treatment of students if an
institution of higher education ceases to operate
before all students have completed their program of
study, and may include, if required by the
institution`s accrediting agency or association, an
agreement between institutions for such a teach-out
plan.
(g) Inspector General Report on Gift Ban Violations.--The
Inspector General of the Department shall--
(1) submit an annual report to the authorizing
committees identifying all violations of an
institution`s code of conduct that the Inspector
General has substantiated during the preceding year
relating to the gift ban provisions described in
subsection (e)(2); and
(2) make the report available to the public through
the Department`s website.
(h) Preferred Lender List Requirements.--
(1) In general.--In compiling, maintaining, and
making available a preferred lender list as required
under subsection (a)(27), the institution will--
(A) clearly and fully disclose on such
preferred lender list--
(i) not less than the information
required to be disclosed under section
153(a)(2)(A);
(ii) why the institution has entered
into a preferred lender arrangement
with each lender on the preferred
lender list, particularly with respect
to terms and conditions or provisions
favorable to the borrower; and
(iii) that the students attending the
institution, or the families of such
students, do not have to borrow from a
lender on the preferred lender list;
(B) ensure, through the use of the list of
lender affiliates provided by the Secretary
under paragraph (2), that--
(i) there are not less than three
lenders of loans made under part B that
are not affiliates of each other
included on the preferred lender list
and, if the institution recommends,
promotes, or endorses private education
loans, there are not less than two
lenders of private education loans that
are not affiliates of each other
included on the preferred lender list;
and
(ii) the preferred lender list under
this paragraph--
(I) specifically indicates,
for each listed lender, whether
the lender is or is not an
affiliate of each other lender
on the preferred lender list;
and
(II) if a lender is an
affiliate of another lender on
the preferred lender list,
describes the details of such
affiliation;
(C) prominently disclose the method and
criteria used by the institution in selecting
lenders with which to enter into preferred
lender arrangements to ensure that such lenders
are selected on the basis of the best interests
of the borrowers, including--
(i) payment of origination or other
fees on behalf of the borrower;
(ii) highly competitive interest
rates, or other terms and conditions or
provisions of loans under this title or
private education loans;
(iii) high-quality servicing for such
loans; or
(iv) additional benefits beyond the
standard terms and conditions or
provisions for such loans;
(D) exercise a duty of care and a duty of
loyalty to compile the preferred lender list
under this paragraph without prejudice and for
the sole benefit of the students attending the
institution, or the families of such students;
(E) not deny or otherwise impede the
borrower`s choice of a lender or cause
unnecessary delay in loan certification under
this title for those borrowers who choose a
lender that is not included on the preferred
lender list; and
(F) comply with such other requirements as
the Secretary may prescribe by regulation.
(2) Lender affiliates list.--
(A) In general.--The Secretary shall maintain
and regularly update a list of lender
affiliates of all eligible lenders, and shall
provide such list to institutions for use in
carrying out paragraph (1)(B).
(B) Use of most recent list.--An institution
shall use the most recent list of lender
affiliates provided by the Secretary under
subparagraph (A) in carrying out paragraph
(1)(B).
(i) Definitions.--For the purpose of this section:
(1) Agent.--The term ``agent'' has the meaning given
the term in section 151.
(2) Affiliate.--The term ``affiliate'' means a person
that controls, is controlled by, or is under common
control with another person. A person controls, is
controlled by, or is under common control with another
person if--
(A) the person directly or indirectly, or
acting through one or more others, owns,
controls, or has the power to vote five percent
or more of any class of voting securities of
such other person;
(B) the person controls, in any manner, the
election of a majority of the directors or
trustees of such other person; or
(C) the Secretary determines (after notice
and opportunity for a hearing) that the person
directly or indirectly exercises a controlling
interest over the management or policies of
such other person`s education loans.
(3) Education loan.--The term ``education loan'' has
the meaning given the term in section 151.
(4) Eligible institution.--The term ``eligible
institution'' means any such institution described in
section 102 of this Act.
(5) Officer.--The term ``officer'' has the meaning
given the term in section 151.
(6) Preferred lender arrangement.--The term
``preferred lender arrangement'' has the meaning given
the term in section 151.
(j) Construction.--Nothing in the amendments made by the
Higher Education Amendments of 1992 shall be construed to
prohibit an institution from recording, at the cost of the
institution, a hearing referred to in subsection (b)(2),
subsection (c)(1)(D), or subparagraph (A) or (B)(i) of
subsection (c)(2), of this section to create a record of the
hearing, except the unavailability of a recording shall not
serve to delay the completion of the proceeding. The Secretary
shall allow the institution to use any reasonable means,
including stenographers, of recording the hearing.
* * * * * * *
TITLE VII--GRADUATE AND POSTSECONDARY IMPROVEMENT PROGRAMS
* * * * * * *
PART D--PROGRAMS TO PROVIDE STUDENTS WITH DISABILITIES WITH A QUALITY
HIGHER EDUCATION
* * * * * * *
Subpart 4--National Technical Assistance Center; Coordinating Center
* * * * * * *
SEC. 777. NATIONAL TECHNICAL ASSISTANCE CENTER; COORDINATING CENTER.
(a) National Center.--
(1) In general.--[From amounts appropriated under
section 778,] From amounts appropriated under paragraph
(5), the Secretary shall award a grant to, or enter
into a contract or cooperative agreement with, an
eligible entity to provide for the establishment and
support of a National Center for Information and
Technical Support for Postsecondary Students with
Disabilities (in this subsection referred to as the
``National Center''). The National Center shall carry
out the duties set forth in paragraph (4).
(2) Administration.--The program under this section
shall be administered by the office in the Department
that administers other postsecondary education
programs.
(3) Eligible entity.--In this subpart, the term
``eligible entity'' means an institution of higher
education, a nonprofit organization, or partnership of
two or more such institutions or organizations, with
demonstrated expertise in--
(A) supporting students with disabilities in
postsecondary education;
(B) technical knowledge necessary for the
dissemination of information in accessible
formats;
(C) working with diverse types of
institutions of higher education, including
community colleges; and
(D) the subjects supported by the grants,
contracts, or cooperative agreements authorized
in subparts 1, 2, and 3.
(4) Duties.--The duties of the National Center shall
include the following:
(A) Assistance to students and families.--The
National Center shall provide information and
technical assistance to students with
disabilities and the families of students with
disabilities to support students across the
broad spectrum of disabilities, including--
(i) information to assist individuals
with disabilities who are prospective
students of an institution of higher
education in planning for postsecondary
education while the students are in
secondary school;
(ii) information and technical
assistance provided to individualized
education program teams (as defined in
section 614(d)(1) of the Individuals
with Disabilities Education Act) for
secondary school students with
disabilities, and to early outreach and
student services programs, including
programs authorized under subparts 2,
4, and 5 of part A of title IV, to
support students across a broad
spectrum of disabilities with the
successful transition to postsecondary
education;
(iii) research-based supports,
services, and accommodations which are
available in postsecondary settings,
including services provided by other
agencies such as vocational
rehabilitation;
(iv) information on student mentoring
and networking opportunities for
students with disabilities; and
(v) effective recruitment and
transition programs at postsecondary
educational institutions.
(B) Assistance to institutions of higher
education.--The National Center shall provide
information and technical assistance to
faculty, staff, and administrators of
institutions of higher education to improve the
services provided to, the accommodations for,
the retention rates of, and the completion
rates of, students with disabilities in higher
education settings, which may include--
(i) collection and dissemination of
best and promising practices and
materials for accommodating and
supporting students with disabilities,
including practices and materials
supported by the grants, contracts, or
cooperative agreements authorized under
subparts 1, 2, and 3;
(ii) development and provision of
training modules for higher education
faculty on exemplary practices for
accommodating and supporting
postsecondary students with
disabilities across a range of academic
fields, which may include universal
design for learning and practices
supported by the grants, contracts, or
cooperative agreements authorized under
subparts 1, 2, and 3; and
(iii) development of technology-based
tutorials for higher education faculty
and staff, including new faculty and
graduate students, on best and
promising practices related to support
and retention of students with
disabilities in postsecondary
education.
(C) Information collection and
dissemination.--The National Center shall be
responsible for building, maintaining, and
updating a database of disability support
services information with respect to
institutions of higher education, or for
expanding and updating an existing database of
disabilities support services information with
respect to institutions of higher education.
Such database shall be available to the general
public through a website built to high
technical standards of accessibility
practicable for the broad spectrum of
individuals with disabilities. Such database
and website shall include available information
on--
(i) disability documentation
requirements;
(ii) support services available;
(iii) links to financial aid;
(iv) accommodations policies;
(v) accessible instructional
materials;
(vi) other topics relevant to
students with disabilities; and
(vii) the information in the report
described in subparagraph (E).
(D) Disability support services.--The
National Center shall work with organizations
and individuals with proven expertise related
to disability support services for
postsecondary students with disabilities to
evaluate, improve, and disseminate information
related to the delivery of high quality
disability support services at institutions of
higher education.
(E) Review and report.--Not later than three
years after the establishment of the National
Center, and every two years thereafter, the
National Center shall prepare and disseminate a
report to the Secretary and the authorizing
committees analyzing the condition of
postsecondary success for students with
disabilities. Such report shall include--
(i) a review of the activities and
the effectiveness of the programs
authorized under this part;
(ii) annual enrollment and graduation
rates of students with disabilities in
institutions of higher education from
publicly reported data;
(iii) recommendations for effective
postsecondary supports and services for
students with disabilities, and how
such supports and services may be
widely implemented at institutions of
higher education;
(iv) recommendations on reducing
barriers to full participation for
students with disabilities in higher
education; and
(v) a description of strategies with
a demonstrated record of effectiveness
in improving the success of such
students in postsecondary education.
(F) Staffing of the center.--In hiring
employees of the National Center, the National
Center shall consider the expertise and
experience of prospective employees in
providing training and technical assistance to
practitioners.
(5) Authorization of appropriations.--There is
authorized to be appropriated to carry out this
subsection $2,000,000 for each of fiscal years 2023
through 2027.
(b) Coordinating Center.--
(1) Definition of eligible entity.--In this
subsection, the term ``eligible entity'' means an
entity, or a partnership of entities, that has
demonstrated expertise in the fields of--
(A) higher education;
(B) the education of students with
intellectual disabilities;
(C) the development of comprehensive
transition and postsecondary programs for
students with intellectual disabilities; and
(D) evaluation and technical assistance.
(2) In general.--From amounts appropriated under
section 778, the Secretary shall enter into a
cooperative agreement, on a competitive basis, with an
eligible entity for the purpose of establishing a
coordinating center for institutions of higher
education that offer inclusive comprehensive transition
and postsecondary programs for students with
intellectual disabilities, including institutions
participating in grants authorized under subpart 2, to
provide--
(A) recommendations related to the
development of standards for such programs;
(B) technical assistance for such programs;
and
(C) evaluations for such programs.
(3) Administration.--The program under this
subsection shall be administered by the office in the
Department that administers other postsecondary
education programs.
(4) Duration.--The Secretary shall enter into a
cooperative agreement under this subsection for a
period of five years.
(5) Requirements of cooperative agreement.--The
eligible entity entering into a cooperative agreement
under this subsection shall establish and maintain a
coordinating center that shall--
(A) serve as the technical assistance entity
for all comprehensive transition and
postsecondary programs for students with
intellectual disabilities;
(B) provide technical assistance regarding
the development, evaluation, and continuous
improvement of such programs;
(C) develop an evaluation protocol for such
programs that includes qualitative and
quantitative methodologies for measuring
student outcomes and program strengths in the
areas of academic enrichment, socialization,
independent living, and competitive or
supported employment;
(D) assist recipients of grants under subpart
2 in efforts to award a meaningful credential
to students with intellectual disabilities upon
the completion of such programs, which
credential shall take into consideration unique
State factors;
(E) develop recommendations for the necessary
components of such programs, such as--
(i) academic, vocational, social, and
independent living skills;
(ii) evaluation of student progress;
(iii) program administration and
evaluation;
(iv) student eligibility; and
(v) issues regarding the equivalency
of a student`s participation in such
programs to semester, trimester,
quarter, credit, or clock hours at an
institution of higher education, as the
case may be;
(F) analyze possible funding streams for such
programs and provide recommendations regarding
the funding streams;
(G) develop model memoranda of agreement for
use between or among institutions of higher
education and State and local agencies
providing funding for such programs;
(H) develop mechanisms for regular
communication, outreach and dissemination of
information about comprehensive transition and
postsecondary programs for students with
intellectual disabilities under subpart 2
between or among such programs and to families
and prospective students;
(I) host a meeting of all recipients of
grants under subpart 2 not less often than once
each year; and
(J) convene a workgroup to develop and
recommend model criteria, standards, and
components of such programs as described in
subparagraph (E), that are appropriate for the
development of accreditation standards, which
workgroup shall include--
(i) an expert in higher education;
(ii) an expert in special education;
(iii) a disability organization that
represents students with intellectual
disabilities;
(iv) a representative from the
National Advisory Committee on
Institutional Quality and Integrity;
and
(v) a representative of a regional or
national accreditation agency or
association.
(6) Report.--Not later than five years after the date
of the establishment of the coordinating center under
this subsection, the coordinating center shall report
to the Secretary, the authorizing committees, and the
National Advisory Committee on Institutional Quality
and Integrity on the recommendations of the workgroup
described in paragraph (5)(J).
* * * * * * *
----------
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974
* * * * * * *
TITLE I--PROTECTION OF EMPLOYEE BENEFIT RIGHTS
* * * * * * *
Subtitle B--Regulatory Provisions
* * * * * * *
Part 4--Fiduciary Responsibility
* * * * * * *
ESTABLISHMENT OF PLAN
Sec. 402. (a)(1) Every employee benefit plan shall be
established and maintained pursuant to a written instrument.
Such instrument shall provide for one or more named fiduciaries
who jointly or severally shall have authority to control and
manage the operation and administration of the plan.
(2) For purposes of this title, the term ``named fiduciary''
means a fiduciary who is named in the plan instrument, or who,
pursuant to a procedure specified in the plan, is identified as
a fiduciary (A) by a person who is an employer or employee
organization with respect to the plan or (B) by such an
employer and such an employee organization acting jointly.
(b) Every employee benefit plan shall--
(1) provide a procedure for establishing and carrying
out a funding policy and method consistent with the
objectives of the plan and the requirements of this
title,
(2) describe any procedure under the plan for the
allocation of responsibilities for the operation and
administration of the plan (including any procedure
described in section 405(c)(1)),
(3) provide a procedure for amending such plan, and
for identifying the persons who have authority to amend
the plan, and
(4) specify the basis on which payments are made to
and from the plan.
(c) Any employee benefit plan may provide--
(1) that any person or group of persons may serve in
more than one fiduciary capacity with respect to the
plan (including service both as trustee and
administrator);
(2) that a named fiduciary, or a fiduciary designated
by a named fiduciary pursuant to a plan procedure
described in section 405(c)(1), may employ one or more
persons to render advice with regard to any
responsibility such fiduciary has under the plan; or
(3) that a person who is a named fiduciary with
respect to control or management of the assets of the
plan may appoint an investment manager or managers to
manage (including the power to acquire and dispose of)
any assets of a plan.
(d)(1) No covered person may--
(A) require participants or beneficiaries to agree to
a predispute arbitration provision as a condition for
participation in, or receipt of benefits under, a plan;
(B) agree to a postdispute arbitration provision with
a participant or beneficiary with respect to a plan or
plan benefit unless the conditions of clauses (i)
through (iv) of section 502(n)(1)(B) are satisfied with
respect to such provision; or
(C) agree to any other covered provision with respect
to a plan or plan benefit under any circumstances under
which such provision would not be valid and enforceable
under subparagraphs (C) through (E) section 502(n)(1).
(2) In this subsection--
(A) the term ``covered person'' means--
(i) a plan;
(ii) a plan sponsor;
(iii) an employer; or
(iv) a person engaged by a plan for purposes
of administering or operating the plan; and
(B) the terms ``covered provision'', ``predispute
arbitration provision'' and ``postdispute arbitration
provision'' have the meanings given such terms in
section 502(n)(2).
* * * * * * *
Part 5--Administration and Enforcement
* * * * * * *
civil enforcement
Sec. 502. (a) A civil action may be brought--
(1) by a participant or beneficiary--
(A) for the relief provided for in subsection
(c) of this section, or
(B) to recover benefits due to him under the
terms of his plan, to enforce his rights under
the terms of the plan, or to clarify his rights
to future benefits under the terms of the plan;
(2) by the Secretary, or by a participant,
beneficiary or fiduciary for appropriate relief under
section 409;
(3) by a participant, beneficiary, or fiduciary (A)
to enjoin any act or practice which violates any
provision of this title or the terms of the plan, [or
(B)] (B) to obtain other appropriate equitable relief
(i) to redress such violations or (ii) to enforce any
provisions of this title or the terms of the plan, or
(C) to require re-adjudication and payment of benefits
to remedy violations of this title notwithstanding the
availability of relief under other provisions of this
title;
(4) by the Secretary, or by a participant, or
beneficiary for appropriate relief in the case of a
violation of 105(c);
(5) except as otherwise provided in subsection (b),
by the Secretary (A) to enjoin any act or practice
which violates any provision of this title, [or (B)]
(B) to obtain other appropriate equitable relief (i) to
redress such violation or (ii) to enforce any provision
of this title, or (C) to require re-adjudication and
payment of benefits to remedy violations of this title
notwithstanding the availability of relief under other
provisions of this title;
(6) by the Secretary to collect any civil penalty
under paragraph (2), (4), (5), (6), (7), (8), or (9) of
subsection (c) or under subsection (i) or (l);
(7) by a State to enforce compliance with a qualified
medical child support order (as defined in section
609(a)(2)(A));
(8) by the Secretary, or by an employer or other
person referred to in section 101(f)(1), (A) to enjoin
any act or practice which violates subsection (f) of
section 101, or (B) to obtain appropriate equitable
relief (i) to redress such violation or (ii) to enforce
such subsection;
(9) in the event that the purchase of an insurance
contract or insurance annuity in connection with
termination of an individual`s status as a participant
covered under a pension plan with respect to all or any
portion of the participant`s pension benefit under such
plan constitutes a violation of part 4 of this title or
the terms of the plan, by the Secretary, by any
individual who was a participant or beneficiary at the
time of the alleged violation, or by a fiduciary, to
obtain appropriate relief, including the posting of
security if necessary, to assure receipt by the
participant or beneficiary of the amounts provided or
to be provided by such insurance contract or annuity,
plus reasonable prejudgment interest on such amounts;
(10) in the case of a multiemployer plan that has
been certified by the actuary to be in endangered or
critical status under section 305, if the plan
sponsor--
(A) has not adopted a funding improvement or
rehabilitation plan under that section by the
deadline established in such section, or
(B) fails to update or comply with the terms
of the funding improvement or rehabilitation
plan in accordance with the requirements of
such section,
by an employer that has an obligation to contribute
with respect to the multiemployer plan or an employee
organization that represents active participants in the
multiemployer plan, for an order compelling the plan
sponsor to adopt a funding improvement or
rehabilitation plan or to update or comply with the
terms of the funding improvement or rehabilitation plan
in accordance with the requirements of such section and
the funding improvement or rehabilitation plan; [or]
(11) in the case of a multiemployer plan, by an
employee representative, or any employer that has an
obligation to contribute to the plan, (A) to enjoin any
act or practice which violates subsection (k) of
section 101 (or, in the case of an employer, subsection
(l) of such section), or (B) to obtain appropriate
equitable relief (i) to redress such violation or (ii)
to enforce such subsection[.]; or
(12) in any case relating to the provision of mental
health benefits and substance use disorder benefits
under a group health plan or under group health
insurance coverage offered by a health insurance issuer
in connection with a group health plan (as such terms
are defined in section 733), by the Secretary, or by a
participant, beneficiary, or fiduciary, to enforce any
provision of this title or the terms of the plan or
coverage relating to such benefits against a group
health plan, a health insurance issuer, a fiduciary of
a plan, or any other person that contracts with a group
health plan to provide group health insurance coverage
or assistance in the administration of a group health
plan (including a third party administrator, managed
behavioral health organization, and a pharmacy benefit
manager), if such person participates in or conceals a
violation of any requirement of part 7 relating to such
benefits or a wrongful denial of a claim for mental
health benefits or substance use disorder benefits
under the terms of the plan or coverage, to obtain
appropriate relief, in addition to any other relief
otherwise available under this section, including--
(A) to recover all losses to participants and
beneficiaries;
(B) to reform impermissible plan or coverage
terms and policies (as written or in operation)
in accordance with the requirements of this
title and its implementing regulations; or
(C) to ensure the readjudication of claims
and payment of benefits in accordance with the
plan or coverage terms without any
impermissible limitation, plan or coverage
term, or policy.
(b)(1) In the case of a plan which is qualified under section
401(a), 403(a), or 405(a) of the Internal Revenue Code of 1986
(or with respect to which an application to so qualify has been
filed and has not been finally determined) the Secretary may
exercise his authority under subsection (a)(5) with respect to
a violation of, or the enforcement of, parts 2 and 3 of this
subtitle (relating to participation, vesting, and funding),
only if--
(A) requested by the Secretary of the Treasury, or
(B) one or more participants, beneficiaries, or
fiduciaries, of such plan request in writing (in such
manner as the Secretary shall prescribe by regulation)
that he exercise such authority on their behalf. In the
case of such a request under this paragraph he may
exercise such authority only if he determines that such
violation affects, or such enforcement is necessary to
protect, claims of participants or beneficiaries to
benefits under the plan.
(2) The Secretary shall not initiate an action to enforce
section 515.
(3) Except as provided in subsections (c)(9) and (a)(6) (with
respect to collecting civil penalties under subsection (c)(9)),
and except with respect to enforcement by the Secretary of
section 712 or any other provision of part 7 in any case
relating to mental health benefits and substance use disorder
benefits, the Secretary is not authorized to enforce under this
part any requirement of part 7 against a health insurance
issuer offering health insurance coverage in connection with a
group health plan (as defined in section [706(a)(1)]
733(a)(1)). Nothing in this paragraph shall affect the
authority of the Secretary to issue regulations to carry out
such part.
(c)(1) Any administrator (A) who fails to meet the
requirements of paragraph (1) or (4) of section 606, section
101(e)(1), section 101(f), or section 105(a) with respect to a
participant or beneficiary, or (B) who fails or refuses to
comply with a request for any information which such
administrator is required by this title to furnish to a
participant or beneficiary (unless such failure or refusal
results from matters reasonably beyond the control of the
administrator) by mailing the material requested to the last
known address of the requesting participant or beneficiary
within 30 days after such request may in the court`s discretion
be personally liable to such participant or beneficiary in the
amount of up to $100 a day from the date of such failure or
refusal, and the court may in its discretion order such other
relief as it deems proper. For purposes of this paragraph, each
violation described in subparagraph (A) with respect to any
single participant, and each violation described in
subparagraph (B) with respect to any single participant or
beneficiary, shall be treated as a separate violation.
(2) The Secretary may assess a civil penalty against any plan
administrator of up to $1,000 a day from the date of such plan
administrator`s failure or refusal to file the annual report
required to be filed with the Secretary under section
101(b)(1). For purposes of this paragraph, an annual report
that has been rejected under section 104(a)(4) for failure to
provide material information shall not be treated as having
been filed with the Secretary.
(3) Any employer maintaining a plan who fails to meet the
notice requirement of section 101(d) with respect to any
participant or beneficiary or who fails to meet the
requirements of section 101(e)(2) with respect to any person or
who fails to meet the requirements of section 302(d)(12)(E)
with respect to any person may in the court`s discretion be
liable to such participant or beneficiary or to such person in
the amount of up to $100 a day from the date of such failure,
and the court may in its discretion order such other relief as
it deems proper.
(4) The Secretary may assess a civil penalty of not more than
$1,000 a day for each violation by any person of subsection
(j), (k), or (l) of section 101 or section 514(e)(3).
(5) The Secretary may assess a civil penalty against any
person of up to $1,000 a day from the date of the person`s
failure or refusal to file the information required to be filed
by such person with the Secretary under regulations prescribed
pursuant to section 101(g).
(6) If, within 30 days of a request by the Secretary to a
plan administrator for documents under section 104(a)(6), the
plan administrator fails to furnish the material requested to
the Secretary, the Secretary may assess a civil penalty against
the plan administrator of up to $100 a day from the date of
such failure (but in no event in excess of $1,000 per request).
No penalty shall be imposed under this paragraph for any
failure resulting from matters reasonably beyond the control of
the plan administrator.
(7) The Secretary may assess a civil penalty against a plan
administrator of up to $100 a day from the date of the plan
administrator`s failure or refusal to provide notice to
participants and beneficiaries in accordance with subsection
(i) or (m) of section 101. For purposes of this paragraph, each
violation with respect to any single participant or beneficiary
shall be treated as a separate violation.
(8) The Secretary may assess against any plan sponsor
of a multiemployer plan a civil penalty of not more
than $1,100 per day--
(A) for each violation by such sponsor of the
requirement under section 305 to adopt by the
deadline established in that section a funding
improvement plan or rehabilitation plan with
respect to a multiemployer plan which is in
endangered or critical status, or
(B) in the case of a plan in endangered
status which is not in seriously endangered
status, for failure by the plan to meet the
applicable benchmarks under section 305 by the
end of the funding improvement period with
respect to the plan.
(9)(A) The Secretary may assess a civil penalty against any
employer of up to $100 a day from the date of the employer`s
failure to meet the notice requirement of section
701(f)(3)(B)(i)(I). For purposes of this subparagraph, each
violation with respect to any single employee shall be treated
as a separate violation.
(B) The Secretary may assess a civil penalty against any plan
administrator of up to $100 a day from the date of the plan
administrator`s failure to timely provide to any State the
information required to be disclosed under section
701(f)(3)(B)(ii). For purposes of this subparagraph, each
violation with respect to any single participant or beneficiary
shall be treated as a separate violation.
(10) Secretarial enforcement authority relating to
use of genetic information.--
(A) General rule.--The Secretary may impose a
penalty against any plan sponsor of a group
health plan, or any health insurance issuer
offering health insurance coverage in
connection with the plan, for any failure by
such sponsor or issuer to meet the requirements
of subsection (a)(1)(F), (b)(3), (c), or (d) of
section 702 or section 701 or 702(b)(1) with
respect to genetic information, in connection
with the plan.
(B) Amount.--
(i) In general.--The amount of the
penalty imposed by subparagraph (A)
shall be $100 for each day in the
noncompliance period with respect to
each participant or beneficiary to whom
such failure relates.
(ii) Noncompliance period.--For
purposes of this paragraph, the term
``noncompliance period'' means, with
respect to any failure, the period--
(I) beginning on the date
such failure first occurs; and
(II) ending on the date the
failure is corrected.
(C) Minimum penalties where failure
discovered.--Notwithstanding clauses (i) and
(ii) of subparagraph (D):
(i) In general.--In the case of 1 or
more failures with respect to a
participant or beneficiary--
(I) which are not corrected
before the date on which the
plan receives a notice from the
Secretary of such violation;
and
(II) which occurred or
continued during the period
involved;
the amount of penalty imposed by
subparagraph (A) by reason of such
failures with respect to such
participant or beneficiary shall not be
less than $2,500.
(ii) Higher minimum penalty where
violations are more than de minimis.--
To the extent violations for which any
person is liable under this paragraph
for any year are more than de minimis,
clause (i) shall be applied by
substituting ``$15,000'' for ``$2,500''
with respect to such person.
(D) Limitations.--
(i) Penalty not to apply where
failure not discovered exercising
reasonable diligence.--No penalty shall
be imposed by subparagraph (A) on any
failure during any period for which it
is established to the satisfaction of
the Secretary that the person otherwise
liable for such penalty did not know,
and exercising reasonable diligence
would not have known, that such failure
existed.
(ii) Penalty not to apply to failures
corrected within certain periods.--No
penalty shall be imposed by
subparagraph (A) on any failure if--
(I) such failure was due to
reasonable cause and not to
willful neglect; and
(II) such failure is
corrected during the 30-day
period beginning on the first
date the person otherwise
liable for such penalty knew,
or exercising reasonable
diligence would have known,
that such failure existed.
(iii) Overall limitation for
unintentional failures.--In the case of
failures which are due to reasonable
cause and not to willful neglect, the
penalty imposed by subparagraph (A) for
failures shall not exceed the amount
equal to the lesser of--
(I) 10 percent of the
aggregate amount paid or
incurred by the plan sponsor
(or predecessor plan sponsor)
during the preceding taxable
year for group health plans; or
(II) $500,000.
(E) Waiver by secretary.--In the case of a
failure which is due to reasonable cause and
not to willful neglect, the Secretary may waive
part or all of the penalty imposed by
subparagraph (A) to the extent that the payment
of such penalty would be excessive relative to
the failure involved.
(F) Definitions.--Terms used in this
paragraph which are defined in section 733
shall have the meanings provided such terms in
such section.
(11) The Secretary and the Secretary of Health and Human
Services shall maintain such ongoing consultation as may be
necessary and appropriate to coordinate enforcement under this
subsection with enforcement under section 1144(c)(8) of the
Social Security Act.
(12) The Secretary may assess a civil penalty against
any sponsor of a CSEC plan of up to $100 a day from the
date of the plan sponsor`s failure to comply with the
requirements of section 306(j)(3) to establish or
update a funding restoration plan.
(d)(1) An employee benefit plan may sue or be sued under this
title as an entity. Service of summons, subpena, or other legal
process of a court upon a trustee or an administrator of an
employee benefit plan in his capacity as such shall constitute
service upon the employee benefit plan. In a case where a plan
has not designated in the summary plan description of the plan
an individual as agent for the service of legal process,
service upon the Secretary shall constitute such service. The
Secretary, not later than 15 days after receipt of service
under the preceding sentence, shall notify the administrator or
any trustee of the plan of receipt of such service.
(2) Any money judgment under this title against an employee
benefit plan shall be enforceable only against the plan as an
entity and shall not be enforceable against any other person
unless liability against such person is established in his
individual capacity under this title.
(e)(1) Except for actions under subsection (a)(1)(B) of this
section, the district courts of the United States shall have
exclusive jurisdiction of civil actions under this title
brought by the Secretary or by a participant, beneficiary,
fiduciary, or any person referred to in section 101(f)(1).
State courts of competent jurisdiction and district courts of
the United States shall have concurrent jurisdiction of actions
under paragraphs (1)(B) and (7) of subsection (a) of this
section.
(2) Where an action under this title is brought in a district
court of the United States, it may be brought in the district
where the plan is administered, where the breach took place, or
where a defendant resides or may be found, and process may be
served in any other district where a defendant resides or may
be found.
(f) The district courts of the United States shall have
jurisdiction, without respect to the amount in controversy or
the citizenship of the parties, to grant the relief provided
for in subsection (a) of this section in any action.
(g)(1) In any action under this title (other than an action
described in paragraph (2)) by a participant, beneficiary, or
fiduciary, the court in its discretion may allow a reasonable
attorney`s fee and costs of action to either party.
(2) In any action under this title by a fiduciary for or on
behalf of a plan to enforce section 515 in which a judgment in
favor of the plan is awarded, the court shall award the plan--
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of--
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under
the plan in an amount not in excess of 20
percent (or such higher percentage as may be
permitted under Federal or State law) of the
amount determined by the court under
subparagraph (A),
(D) reasonable attorney`s fees and costs of the
action, to be paid by the defendant, and
(E) such other legal or equitable relief as the court
deems appropriate.
For purposes of this paragraph, interest on unpaid
contributions shall be determined by using the rate provided
under the plan, or, if none, the rate prescribed under section
6621 of the Internal Revenue Code of 1986.
(h) A copy of the complaint in any action under this title by
a participant, beneficiary, or fiduciary (other than an action
brought by one or more participants or beneficiaries under
subsection (a)(1)(B) which is solely for the purpose of
recovering benefits due such participants under the terms of
the plan) shall be served upon the Secretary and the Secretary
of the Treasury by certified mail. Either Secretary shall have
the right in his discretion to intervene in any action, except
that the Secretary of the Treasury may not intervene in any
action under part 4 of this subtitle. If the Secretary brings
an action under subsection (a) on behalf of a participant or
beneficiary, he shall notify the Secretary of the Treasury.
(i) In the case of a transaction prohibited by section 406 by
a party in interest with respect to a plan to which this part
applies, the Secretary may assess a civil penalty against such
party in interest. The amount of such penalty may not exceed 5
percent of the amount involved in each such transaction (as
defined in section 4975(f)(4) of the Internal Revenue Code of
1986) for each year or part thereof during which the prohibited
transaction continues, except that, if the transaction is not
corrected (in such manner as the Secretary shall prescribe in
regulations which shall be consistent with section 4975(f)(5)
of such Code) within 90 days after notice from the Secretary
(or such longer period as the Secretary may permit), such
penalty may be in an amount not more than 100 percent of the
amount involved. This subsection shall not apply to a
transaction with respect to a plan described in section
4975(e)(1) of such Code.
(j) In all civil actions under this title, attorneys
appointed by the Secretary may represent the Secretary (except
as provided in section 518(a) of title 28, United States Code),
but all such litigation shall be subject to the direction and
control of the Attorney General.
(k) Suits by an administrator, fiduciary, participant, or
beneficiary of an employee benefit plan to review a final order
of the Secretary, to restrain the Secretary from taking any
action contrary to the provisions of this Act, or to compel him
to take action required under this title, may be brought in the
district court of the United States for the district where the
plan has its principal office, or in the United States District
Court for the District of Columbia.
(l)(1) In the case of--
(A) any breach of fiduciary responsibility under (or
other violation of) part 4 by a fiduciary, or
(B) any knowing participation in such a breach or
violation by any other person,
the Secretary shall assess a civil penalty against such
fiduciary or other person in an amount equal to 20 percent of
the applicable recovery amount.
(2) For purposes of paragraph (1), the term ``applicable
recovery amount'' means any amount which is recovered from a
fiduciary or other person with respect to a breach or violation
described in paragraph (1)--
(A) pursuant to any settlement agreement with the
Secretary, or
(B) ordered by a court to be paid by such fiduciary
or other person to a plan or its participants and
beneficiaries in a judicial proceeding instituted by
the Secretary under subsection (a)(2) or (a)(5).
(3) The Secretary may, in the Secretary`s sole discretion,
waive or reduce the penalty under paragraph (1) if the
Secretary determines in writing that--
(A) the fiduciary or other person acted reasonably
and in good faith, or
(B) it is reasonable to expect that the fiduciary or
other person will not be able to restore all losses to
the plan (or to provide the relief ordered pursuant to
subsection (a)(9)) without severe financial hardship
unless such waiver or reduction is granted.
(4) The penalty imposed on a fiduciary or other person under
this subsection with respect to any transaction shall be
reduced by the amount of any penalty or tax imposed on such
fiduciary or other person with respect to such transaction
under subsection (i) of this section and section 4975 of the
Internal Revenue Code of 1986.
(m) In the case of a distribution to a pension plan
participant or beneficiary in violation of section 206(e) by a
plan fiduciary, the Secretary shall assess a penalty against
such fiduciary in an amount equal to the value of the
distribution. Such penalty shall not exceed $10,000 for each
such distribution.
(n)(1) In any civil action brought by, or on behalf of, a
participant or beneficiary pursuant to this section or with
respect to a common law claim involving a plan or plan benefit,
notwithstanding any other provision of law--
(A) no predispute arbitration provision shall be
valid or enforceable if it requires arbitration of a
matter related to a claim brought under this section;
(B) no postdispute arbitration provision shall be
valid or enforceable unless--
(i) the provision was not required by any
person, obtained by coercion or threat of
adverse action, or made a condition of
participating in a plan, receiving benefits
under a plan, or receiving any other
employment, work, or any employment-related or
work-related privilege or benefit;
(ii) each participant or beneficiary agreeing
to the provision was informed, through a paper
notice, in a manner reasonably calculated to be
understood by the average plan participant, of
the right of the participant or beneficiary
under subparagraph (C) to refuse to agree to
the provision without retaliation or threat of
retaliation;
(iii) each participant or beneficiary
agreeing to the provision so agreed after a
waiting period of not fewer than 45 days,
beginning on the date on which the participant
or beneficiary was provided both the final text
of the provision and the disclosures required
under clause (ii); and
(iv) each participant or beneficiary agreeing
to the provision affirmatively consented to the
provision in writing;
(C) no covered provision shall be valid or
enforceable, if prior to a dispute to which the covered
provision applies, a participant or beneficiary
undertakes or promises not to pursue, bring, join,
litigate, or support any kind of individual, joint,
class, representative, or collective claim available
under this section in any forum that, but for such
covered provision, is of competent jurisdiction;
(D) no covered provision shall be valid or
enforceable, if after a dispute to which the covered
provision applies arises, a participant or beneficiary
undertakes or promises not to pursue, bring, join,
litigate, or support any kind of individual, joint,
class, representative, or collective claim under this
section in any forum that, but for such covered
provision, is of competent jurisdiction, unless the
covered provision meets the requirements of
subparagraph (B); and
(E) no covered provision related to a plan other than
a multiemployer plan shall be valid or enforceable that
purports to confer discretionary authority to any
person with respect to benefit determinations or
interpretation of plan language, or to provide a
standard of review of such determinations or
interpretation by a reviewing court in an action
brought under this section that would require anything
other than de novo review of such determinations or
interpretation.
(2) In this subsection--
(A) the term ``covered provision'' means any
document, instrument, or agreement related to a plan or
plan benefit, regardless of whether such provision
appears in a plan document or in a separate agreement;
(B) the term ``predispute arbitration provision''
means a covered provision that requires a participant
or beneficiary to arbitrate a dispute related to the
plan or an amendment to the plan that had not yet
arisen at the time such provision took effect;
(C) the term ``postdispute arbitration provision''
means a covered provision that requires a participant
or beneficiary to arbitrate a dispute related to the
plan or an amendment to the plan that arose before the
time such provision took effect; and
(D) the term ``retaliation'' means any action in
violation of section 510.
(3)(A) Any dispute as to whether a covered provision that
requires a participant or beneficiary to arbitrate a dispute
related to a plan is valid and enforceable shall be determined
by a court, rather than an arbitrator, regardless of whether
any contractual provision purports to delegate such
determinations to the arbitrator and irrespective of whether
the party resisting arbitration challenges the arbitration
agreement specifically or in conjunction with other terms of
the contract containing such agreement.
(B) For purposes of this subsection, a dispute shall be
considered to arise only when a plaintiff has actual knowledge
(within the meaning of such term in section 413) of a breach or
violation giving rise to a claim under this section.
* * * * * * *
Part 7--Group Health Plan Requirements
* * * * * * *
Subpart B--Other Requirements
* * * * * * *
SEC. 712. PARITY IN MENTAL HEALTH AND SUBSTANCE USE DISORDER BENEFITS.
(a) In General.--
(1) Aggregate lifetime limits.--In the case of a
group health plan (or health insurance coverage offered
in connection with such a plan) that provides both
medical and surgical benefits and mental health or
substance use disorder benefits--
(A) No lifetime limit.--If the plan or
coverage does not include an aggregate lifetime
limit on substantially all medical and surgical
benefits, the plan or coverage may not impose
any aggregate lifetime limit on mental health
or substance use disorder benefits.
(B) Lifetime limit.--If the plan or coverage
includes an aggregate lifetime limit on
substantially all medical and surgical benefits
(in this paragraph referred to as the
``applicable lifetime limit''), the plan or
coverage shall either--
(i) apply the applicable lifetime
limit both to the medical and surgical
benefits to which it otherwise would
apply and to mental health and
substance use disorder benefits and not
distinguish in the application of such
limit between such medical and surgical
benefits and mental health and
substance use disorder benefits; or
(ii) not include any aggregate
lifetime limit on mental health or
substance use disorder benefits that is
less than the applicable lifetime
limit.
(C) Rule in case of different limits.--In the
case of a plan or coverage that is not
described in subparagraph (A) or (B) and that
includes no or different aggregate lifetime
limits on different categories of medical and
surgical benefits, the Secretary shall
establish rules under which subparagraph (B) is
applied to such plan or coverage with respect
to mental health and substance use disorder
benefits by substituting for the applicable
lifetime limit an average aggregate lifetime
limit that is computed taking into account the
weighted average of the aggregate lifetime
limits applicable to such categories.
(2) Annual limits.--In the case of a group health
plan (or health insurance coverage offered in
connection with such a plan) that provides both medical
and surgical benefits and mental health or substance
use disorder benefits--
(A) No annual limit.--If the plan or coverage
does not include an annual limit on
substantially all medical and surgical
benefits, the plan or coverage may not impose
any annual limit on mental health or substance
use disorder benefits.
(B) Annual limit.--If the plan or coverage
includes an annual limit on substantially all
medical and surgical benefits (in this
paragraph referred to as the ``applicable
annual limit''), the plan or coverage shall
either--
(i) apply the applicable annual limit
both to medical and surgical benefits
to which it otherwise would apply and
to mental health and substance use
disorder benefits and not distinguish
in the application of such limit
between such medical and surgical
benefits and mental health and
substance use disorder benefits; or
(ii) not include any annual limit on
mental health or substance use disorder
benefits that is less than the
applicable annual limit.
(C) Rule in case of different limits.--In the
case of a plan or coverage that is not
described in subparagraph (A) or (B) and that
includes no or different annual limits on
different categories of medical and surgical
benefits, the Secretary shall establish rules
under which subparagraph (B) is applied to such
plan or coverage with respect to mental health
and substance use disorder benefits by
substituting for the applicable annual limit an
average annual limit that is computed taking
into account the weighted average of the annual
limits applicable to such categories.
(3) Financial requirements and treatment
limitations.--
(A) In general.--In the case of a group
health plan (or health insurance coverage
offered in connection with such a plan) that
provides both medical and surgical benefits and
mental health or substance use disorder
benefits, such plan or coverage shall ensure
that--
(i) the financial requirements
applicable to such mental health or
substance use disorder benefits are no
more restrictive than the predominant
financial requirements applied to
substantially all medical and surgical
benefits covered by the plan (or
coverage), and there are no separate
cost sharing requirements that are
applicable only with respect to mental
health or substance use disorder
benefits; and
(ii) the treatment limitations
applicable to such mental health or
substance use disorder benefits are no
more restrictive than the predominant
treatment limitations applied to
substantially all medical and surgical
benefits covered by the plan (or
coverage) and there are no separate
treatment limitations that are
applicable only with respect to mental
health or substance use disorder
benefits.
(B) Definitions.--In this paragraph:
(i) Financial requirement.--The term
``financial requirement'' includes
deductibles, copayments, coinsurance,
and out-of-pocket expenses, but
excludes an aggregate lifetime limit
and an annual limit subject to
paragraphs (1) and (2),
(ii) Predominant.--A financial
requirement or treatment limit is
considered to be predominant if it is
the most common or frequent of such
type of limit or requirement.
(iii) Treatment limitation.--The term
``treatment limitation'' includes
limits on the frequency of treatment,
number of visits, days of coverage, or
other similar limits on the scope or
duration of treatment.
(4) Availability of plan information.--The criteria
for medical necessity determinations made under the
plan with respect to mental health or substance use
disorder benefits (or the health insurance coverage
offered in connection with the plan with respect to
such benefits) shall be made available by the plan
administrator (or the health insurance issuer offering
such coverage) in accordance with regulations to any
current or potential participant, beneficiary, or
contracting provider upon request. The reason for any
denial under the plan (or coverage) of reimbursement or
payment for services with respect to mental health or
substance use disorder benefits in the case of any
participant or beneficiary shall, on request or as
otherwise required, be made available by the plan
administrator (or the health insurance issuer offering
such coverage) to the participant or beneficiary in
accordance with regulations.
(5) Out-of-network providers.--In the case of a plan
or coverage that provides both medical and surgical
benefits and mental health or substance use disorder
benefits, if the plan or coverage provides coverage for
medical or surgical benefits provided by out-of-network
providers, the plan or coverage shall provide coverage
for mental health or substance use disorder benefits
provided by out-of-network providers in a manner that
is consistent with the requirements of this section.
(6) Compliance program guidance document.--
(A) In general.--The Secretary, the Secretary
of Health and Human Services, and the Secretary
of the Treasury, in consultation with the
Inspector General of the Department of Health
and Human Services, the Inspector General of
the Department of Labor, and the Inspector
General of the Department of the Treasury,
shall issue a compliance program guidance
document to help improve compliance with this
section, section 2726 of the Public Health
Service Act, and section 9812 of the Internal
Revenue Code of 1986, as applicable. In
carrying out this paragraph, the Secretaries
may take into consideration the 2016
publication of the Department of Health and
Human Services and the Department of Labor,
entitled ``Warning Signs - Plan or Policy Non-
Quantitative Treatment Limitations (NQTLs) that
Require Additional Analysis to Determine Mental
Health Parity Compliance''.
(B) Examples illustrating compliance and
noncompliance.--
(i) In general.--The compliance
program guidance document required
under this paragraph shall provide
illustrative, de-identified examples
(that do not disclose any protected
health information or individually
identifiable information) of previous
findings of compliance and
noncompliance with this section,
section 2726 of the Public Health
Service Act, or section 9812 of the
Internal Revenue Code of 1986, as
applicable, based on investigations of
violations of such sections,
including--
(I) examples illustrating
requirements for information
disclosures and nonquantitative
treatment limitations; and
(II) descriptions of the
violations uncovered during the
course of such investigations.
(ii) Nonquantitative treatment
limitations.--To the extent that any
example described in clause (i)
involves a finding of compliance or
noncompliance with regard to any
requirement for nonquantitative
treatment limitations, the example
shall provide sufficient detail to
fully explain such finding, including a
full description of the criteria
involved for approving medical and
surgical benefits and the criteria
involved for approving mental health
and substance use disorder benefits.
(iii) Access to additional
information regarding compliance.--In
developing and issuing the compliance
program guidance document required
under this paragraph, the Secretaries
specified in subparagraph (A)--
(I) shall enter into
interagency agreements with the
Inspector General of the
Department of Health and Human
Services, the Inspector General
of the Department of Labor, and
the Inspector General of the
Department of the Treasury to
share findings of compliance
and noncompliance with this
section, section 2726 of the
Public Health Service Act, or
section 9812 of the Internal
Revenue Code of 1986, as
applicable; and
(II) shall seek to enter into
an agreement with a State to
share information on findings
of compliance and noncompliance
with this section, section 2726
of the Public Health Service
Act, or section 9812 of the
Internal Revenue Code of 1986,
as applicable.
(C) Recommendations.--The compliance program
guidance document shall include recommendations
to advance compliance with this section,
section 2726 of the Public Health Service Act,
or section 9812 of the Internal Revenue Code of
1986, as applicable, and encourage the
development and use of internal controls to
monitor adherence to applicable statutes,
regulations, and program requirements. Such
internal controls may include illustrative
examples of nonquantitative treatment
limitations on mental health and substance use
disorder benefits, which may fail to comply
with this section, section 2726 of the Public
Health Service Act, or section 9812 of the
Internal Revenue Code of 1986, as applicable,
in relation to nonquantitative treatment
limitations on medical and surgical benefits.
(D) Updating the compliance program guidance
document.--The Secretary, the Secretary of
Health and Human Services, and the Secretary of
the Treasury, in consultation with the
Inspector General of the Department of Health
and Human Services, the Inspector General of
the Department of Labor, and the Inspector
General of the Department of the Treasury,
shall update the compliance program guidance
document every 2 years to include illustrative,
de-identified examples (that do not disclose
any protected health information or
individually identifiable information) of
previous findings of compliance and
noncompliance with this section, section 2726
of the Public Health Service Act, or section
9812 of the Internal Revenue Code of 1986, as
applicable.
(7) Additional guidance.--
(A) In general.--The Secretary, the Secretary
of Health and Human Services, and the Secretary
of the Treasury shall issue guidance to group
health plans and health insurance issuers
offering group health insurance coverage to
assist such plans and issuers in satisfying the
requirements of this section, section 2726 of
the Public Health Service Act, or section 9812
of the Internal Revenue Code of 1986, as
applicable.
(B) Disclosure.--
(i) Guidance for plans and issuers.--
The guidance issued under this
paragraph shall include clarifying
information and illustrative examples
of methods that group health plans and
health insurance issuers offering group
or individual health insurance coverage
may use for disclosing information to
ensure compliance with the requirements
under this section, section 2726 of the
Public Health Service Act, or section
9812 of the Internal Revenue Code of
1986, as applicable, (and any
regulations promulgated pursuant to
such sections, as applicable).
(ii) Documents for participants,
beneficiaries, contracting providers,
or authorized representatives.--The
guidance issued under this paragraph
shall include clarifying information
and illustrative examples of methods
that group health plans and health
insurance issuers offering group health
insurance coverage may use to provide
any participant, beneficiary,
contracting provider, or authorized
representative, as applicable, with
documents containing information that
the health plans or issuers are
required to disclose to participants,
beneficiaries, contracting providers,
or authorized representatives to ensure
compliance with this section, section
2726 of the Public Health Service Act,
or section 9812 of the Internal Revenue
Code of 1986, as applicable, compliance
with any regulation issued pursuant to
such respective section, or compliance
with any other applicable law or
regulation. Such guidance shall include
information that is comparative in
nature with respect to--
(I) nonquantitative treatment
limitations for both medical
and surgical benefits and
mental health and substance use
disorder benefits;
(II) the processes,
strategies, evidentiary
standards, and other factors
used to apply the limitations
described in subclause (I); and
(III) the application of the
limitations described in
subclause (I) to ensure that
such limitations are applied in
parity with respect to both
medical and surgical benefits
and mental health and substance
use disorder benefits.
(C) Nonquantitative treatment limitations.--
The guidance issued under this paragraph shall
include clarifying information and illustrative
examples of methods, processes, strategies,
evidentiary standards, and other factors that
group health plans and health insurance issuers
offering group health insurance coverage may
use regarding the development and application
of nonquantitative treatment limitations to
ensure compliance with this section, section
2726 of the Public Health Service Act, or
section 9812 of the Internal Revenue Code of
1986, as applicable, (and any regulations
promulgated pursuant to such respective
section), including--
(i) examples of methods of
determining appropriate types of
nonquantitative treatment limitations
with respect to both medical and
surgical benefits and mental health and
substance use disorder benefits,
including nonquantitative treatment
limitations pertaining to--
(I) medical management
standards based on medical
necessity or appropriateness,
or whether a treatment is
experimental or investigative;
(II) limitations with respect
to prescription drug formulary
design; and
(III) use of fail-first or
step therapy protocols;
(ii) examples of methods of
determining--
(I) network admission
standards (such as
credentialing); and
(II) factors used in provider
reimbursement methodologies
(such as service type,
geographic market, demand for
services, and provider supply,
practice size, training,
experience, and licensure) as
such factors apply to network
adequacy;
(iii) examples of sources of
information that may serve as
evidentiary standards for the purposes
of making determinations regarding the
development and application of
nonquantitative treatment limitations;
(iv) examples of specific factors,
and the evidentiary standards used to
evaluate such factors, used by such
plans or issuers in performing a
nonquantitative treatment limitation
analysis;
(v) examples of how specific
evidentiary standards may be used to
determine whether treatments are
considered experimental or
investigative;
(vi) examples of how specific
evidentiary standards may be applied to
each service category or classification
of benefits;
(vii) examples of methods of reaching
appropriate coverage determinations for
new mental health or substance use
disorder treatments, such as evidence-
based early intervention programs for
individuals with a serious mental
illness and types of medical management
techniques;
(viii) examples of methods of
reaching appropriate coverage
determinations for which there is an
indirect relationship between the
covered mental health or substance use
disorder benefit and a traditional
covered medical and surgical benefit,
such as residential treatment or
hospitalizations involving voluntary or
involuntary commitment; and
(ix) additional illustrative examples
of methods, processes, strategies,
evidentiary standards, and other
factors for which the Secretary
determines that additional guidance is
necessary to improve compliance with
this section, section 2726 of the
Public Health Service Act, or section
9812 of the Internal Revenue Code of
1986, as applicable.
(D) Public comment.--Prior to issuing any
final guidance under this paragraph, the
Secretary shall provide a public comment period
of not less than 60 days during which any
member of the public may provide comments on a
draft of the guidance.
(8) Compliance requirements.--
(A) Nonquantitative treatment limitation
(nqtl) requirements.--In the case of a group
health plan or a health insurance issuer
offering group health insurance coverage that
provides both medical and surgical benefits and
mental health or substance use disorder
benefits and that imposes nonquantitative
treatment limitations (referred to in this
section as ``NQTLs'') on mental health or
substance use disorder benefits, such plan or
issuer shall perform and document comparative
analyses of the design and application of NQTLs
and, beginning 45 days after the date of
enactment of the Consolidated Appropriations
Act, 2021, make available to the Secretary,
upon request, the comparative analyses and the
following information:
(i) The specific plan or coverage
terms or other relevant terms regarding
the NQTLs, that applies to such plan or
coverage, and a description of all
mental health or substance use disorder
and medical or surgical benefits to
which each such term applies in each
respective benefits classification.
(ii) The factors used to determine
that the NQTLs will apply to mental
health or substance use disorder
benefits and medical or surgical
benefits.
(iii) The evidentiary standards used
for the factors identified in clause
(ii), when applicable, provided that
every factor shall be defined, and any
other source or evidence relied upon to
design and apply the NQTLs to mental
health or substance use disorder
benefits and medical or surgical
benefits.
(iv) The comparative analyses
demonstrating that the processes,
strategies, evidentiary standards, and
other factors used to apply the NQTLs
to mental health or substance use
disorder benefits, as written and in
operation, are comparable to, and are
applied no more stringently than, the
processes, strategies, evidentiary
standards, and other factors used to
apply the NQTLs to medical or surgical
benefits in the benefits
classification.
(v) The specific findings and
conclusions reached by the group health
plan or health insurance issuer with
respect to the health insurance
coverage, including any results of the
analyses described in this subparagraph
that indicate that the plan or coverage
is or is not in compliance with this
section.
(B) Secretary request process.--
(i) Submission upon request.--The
Secretary shall request that a group
health plan or a health insurance
issuer offering group health insurance
coverage submit the comparative
analyses described in subparagraph (A)
for plans that involve potential
violations of this section or
complaints regarding noncompliance with
this section that concern NQTLs and any
other instances in which the Secretary
determines appropriate. The Secretary
shall request not fewer than 20 such
analyses per year.
(ii) Additional information.--In
instances in which the Secretary has
concluded that the group health plan or
health insurance issuer with respect to
group health insurance coverage has not
submitted sufficient information for
the Secretary to review the comparative
analyses described in subparagraph (A),
as requested under clause (i), the
Secretary shall specify to the plan or
issuer the information the plan or
issuer must submit to be responsive to
the request under clause (i) for the
Secretary to review the comparative
analyses described in subparagraph (A)
for compliance with this section.
Nothing in this paragraph shall require
the Secretary to conclude that a group
health plan or health insurance issuer
is in compliance with this section
solely based upon the inspection of the
comparative analyses described in
subparagraph (A), as requested under
clause (i).
(iii) Required action.--
(I) In general.--In instances
in which the Secretary has
reviewed the comparative
analyses described in
subparagraph (A), as requested
under clause (i), and
determined that the group
health plan or health insurance
issuer is not in compliance
with this section, the plan or
issuer--
(aa) shall specify to
the Secretary the
actions the plan or
issuer will take to be
in compliance with this
section and provide to
the Secretary
additional comparative
analyses described in
subparagraph (A) that
demonstrate compliance
with this section not
later than 45 days
after the initial
determination by the
Secretary that the plan
or issuer is not in
compliance; and
(bb) following the
45-day corrective
action period under
item (aa), if the
Secretary makes a final
determination that the
plan or issuer still is
not in compliance with
this section, not later
than 7 days after such
determination, shall
notify all individuals
enrolled in the plan or
applicable health
insurance coverage
offered by the issuer
that the plan or
issuer, with respect to
such coverage, has been
determined to be not in
compliance with this
section.
(II) Exemption from
disclosure.--Documents or
communications produced in
connection with the Secretary`s
recommendations to a group
health plan or health insurance
issuer shall not be subject to
disclosure pursuant to section
552 of title 5, United States
Code.
(iv) Report.--Not later than 1 year
after the date of enactment of this
paragraph, and not later than October 1
of each year thereafter, the Secretary
shall submit to Congress, and make
publicly available, a report that
contains--
(I) a summary of the
comparative analyses requested
under clause (i), including the
identity of each group health
plan or health insurance
issuer, with respect to certain
health insurance coverage that
is determined to be not in
compliance after the final
determination by the Secretary
described in clause
(iii)(I)(bb);
(II) the Secretary`s
conclusions as to whether each
group health plan or health
insurance issuer submitted
sufficient information for the
Secretary to review the
comparative analyses requested
under clause (i) for compliance
with this section;
(III) for each group health
plan or health insurance issuer
that did submit sufficient
information for the Secretary
to review the comparative
analyses requested under clause
(i), the Secretary`s
conclusions as to whether and
why the plan or issuer is in
compliance with the disclosure
requirements under this
section;
(IV) the Secretary`s
specifications described in
clause (ii) for each group
health plan or health insurance
issuer that the Secretary
determined did not submit
sufficient information for the
Secretary to review the
comparative analyses requested
under clause (i) for compliance
with this section; and
(V) the Secretary`s
specifications described in
clause (iii) of the actions
each group health plan or
health insurance issuer that
the Secretary determined is not
in compliance with this section
must take to be in compliance
with this section, including
the reason why the Secretary
determined the plan or issuer
is not in compliance.
(C) Compliance program guidance document
update process.--
(i) In general.--The Secretary shall
include instances of noncompliance that
the Secretary discovers upon reviewing
the comparative analyses requested
under subparagraph (B)(i) in the
compliance program guidance document
described in paragraph (6), as it is
updated every 2 years, except that such
instances shall not disclose any
protected health information or
individually identifiable information.
(ii) Guidance and regulations.--Not
later than 18 months after the date of
enactment of this paragraph, the
Secretary shall finalize any draft or
interim guidance and regulations
relating to mental health parity under
this section. Such draft guidance shall
include guidance to clarify the process
and timeline for current and potential
participants and beneficiaries (and
authorized representatives and health
care providers of such participants and
beneficiaries) with respect to plans to
file complaints of such plans or
issuers being in violation of this
section, including guidance, by plan
type, on the relevant State, regional,
or national office with which such
complaints should be filed.
(iii) State.--The Secretary shall
share information on findings of
compliance and noncompliance discovered
upon reviewing the comparative analyses
requested under subparagraph (B)(i)
shall be shared with the State where
the group health plan is located or the
State where the health insurance issuer
is licensed to do business for coverage
offered by a health insurance issuer in
the group market, in accordance with
paragraph (6)(B)(iii)(II).
(b) Construction.--Nothing in this section shall be
construed--
(1) as requiring a group health plan (or health
insurance coverage offered in connection with such a
plan) to provide any mental health or substance use
disorder benefits; or
(2) in the case of a group health plan (or health
insurance coverage offered in connection with such a
plan) that provides mental health or substance use
disorder benefits, as affecting the terms and
conditions of the plan or coverage relating to such
benefits under the plan or coverage, except as provided
in subsection (a).
(c) Exemptions.--
(1) Small employer exemption.--
(A) In general.--This section shall not apply
to any group health plan (and group health
insurance coverage offered in connection with a
group health plan) for any plan year of a small
employer.
(B) Small employer.--For purposes of
subparagraph (A), the term ``small employer''
means, in connection with a group health plan
with respect to a calendar year and a plan
year, an employer who employed an average of at
least 2 (or 1 in the case of an employer
residing in a State that permits small groups
to include a single individual) but not more
than 50 employees on business days during the
preceding calendar year.
(C) Application of certain rules in
determination of employer size.--For purposes
of this paragraph--
(i) Application of aggregation rule
for employers.--Rules similar to the
rules under subsections (b), (c), (m),
and (o) of section 414 of the Internal
Revenue Code of 1986 shall apply for
purposes of treating persons as a
single employer.
(ii) Employers not in existence in
preceding year.--In the case of an
employer which was not in existence
throughout the preceding calendar year,
the determination of whether such
employer is a small employer shall be
based on the average number of
employees that it is reasonably
expected such employer will employ on
business days in the current calendar
year.
(iii) Predecessors.--Any reference in
this paragraph to an employer shall
include a reference to any predecessor
of such employer.
(2) Cost exemption.--
(A) In general.--With respect to a group
health plan (or health insurance coverage
offered in connection with such a plan), if the
application of this section to such plan (or
coverage) results in an increase for the plan
year involved of the actual total costs of
coverage with respect to medical and surgical
benefits and mental health and substance use
disorder benefits under the plan (as determined
and certified under subparagraph (C)) by an
amount that exceeds the applicable percentage
described in subparagraph (B) of the actual
total plan costs, the provisions of this
section shall not apply to such plan (or
coverage) during the following plan year, and
such exemption shall apply to the plan (or
coverage) for 1 plan year. An employer may
elect to continue to apply mental health and
substance use disorder parity pursuant to this
section with respect to the group health plan
(or coverage) involved regardless of any
increase in total costs.
(B) Applicable percentage.--With respect to a
plan (or coverage), the applicable percentage
described in this subparagraph shall be--
(i) 2 percent in the case of the
first plan year in which this section
is applied; and
(ii) 1 percent in the case of each
subsequent plan year.
(C) Determinations by actuaries.--
Determinations as to increases in actual costs
under a plan (or coverage) for purposes of this
section shall be made and certified by a
qualified and licensed actuary who is a member
in good standing of the American Academy of
Actuaries. All such determinations shall be in
a written report prepared by the actuary. The
report, and all underlying documentation relied
upon by the actuary, shall be maintained by the
group health plan or health insurance issuer
for a period of 6 years following the
notification made under subparagraph (E).
(D) 6-month determinations.--If a group
health plan (or a health insurance issuer
offering coverage in connection with a group
health plan) seeks an exemption under this
paragraph, determinations under subparagraph
(A) shall be made after such plan (or coverage)
has complied with this section for the first 6
months of the plan year involved.
(E) Notification.--
(i) In general.--A group health plan
(or a health insurance issuer offering
coverage in connection with a group
health plan) that, based upon a
certification described under
subparagraph (C), qualifies for an
exemption under this paragraph, and
elects to implement the exemption,
shall promptly notify the Secretary,
the appropriate State agencies, and
participants and beneficiaries in the
plan of such election.
(ii) Requirement.--A notification to
the Secretary under clause (i) shall
include--
(I) a description of the
number of covered lives under
the plan (or coverage) involved
at the time of the
notification, and as
applicable, at the time of any
prior election of the cost-
exemption under this paragraph
by such plan (or coverage);
(II) for both the plan year
upon which a cost exemption is
sought and the year prior, a
description of the actual total
costs of coverage with respect
to medical and surgical
benefits and mental health and
substance use disorder benefits
under the plan; and
(III) for both the plan year
upon which a cost exemption is
sought and the year prior, the
actual total costs of coverage
with respect to mental health
and substance use disorder
benefits under the plan.
(iii) Confidentiality.--A
notification to the Secretary under
clause (i) shall be confidential. The
Secretary shall make available, upon
request and on not more than an annual
basis, an anonymous itemization of such
notifications, that includes--
(I) a breakdown of States by
the size and type of employers
submitting such notification;
and
(II) a summary of the data
received under clause (ii).
(F) Audits by appropriate agencies.--To
determine compliance with this paragraph, the
Secretary may audit the books and records of a
group health plan or health insurance issuer
relating to an exemption, including any
actuarial reports prepared pursuant to
subparagraph (C), during the 6 year period
following the notification of such exemption
under subparagraph (E). A State agency
receiving a notification under subparagraph (E)
may also conduct such an audit with respect to
an exemption covered by such notification.
(d) Separate Application to Each Option Offered.--In the case
of a group health plan that offers a participant or beneficiary
two or more benefit package options under the plan, the
requirements of this section shall be applied separately with
respect to each such option.
(e) Definitions.--For purposes of this section and section
502(a)(12)--
(1) Aggregate lifetime limit.--The term ``aggregate
lifetime limit'' means, with respect to benefits under
a group health plan or health insurance coverage, a
dollar limitation on the total amount that may be paid
with respect to such benefits under the plan or health
insurance coverage with respect to an individual or
other coverage unit.
(2) Annual limit.--The term ``annual limit'' means,
with respect to benefits under a group health plan or
health insurance coverage, a dollar limitation on the
total amount of
benefits that may be paid with respect to such benefits
in a 12-month period under the plan or health insurance
coverage with respect to an individual or other
coverage unit.
(3) Medical or surgical benefits.--The term ``medical
or surgical benefits'' means benefits with respect to
medical or surgical services, as defined under the
terms of the plan or coverage (as the case may be), but
does not include mental health or substance use
disorder benefits.
(4) Mental health benefits.--The term ``mental health
benefits'' means benefits with respect to services for
mental health conditions, as defined under the terms of
the plan and in accordance with applicable Federal and
State law.
(5) Substance use disorder benefits.--The term
``substance use disorder benefits'' means benefits with
respect to services for substance use disorders, as
defined under the terms of the plan and in accordance
with applicable Federal and State law.
(f) Secretary Report.--The Secretary shall, by January 1,
2012, and every two years thereafter, submit to the appropriate
committees of Congress a report on compliance of group health
plans (and health insurance coverage offered in connection with
such plans) with the requirements of this section. Such report
shall include the results of any surveys or audits on
compliance of group health plans (and health insurance coverage
offered in connection with such plans) with such requirements
and an analysis of the reasons for any failures to comply.
(g) Notice and Assistance.--The Secretary, in cooperation
with the Secretaries of Health and Human Services and Treasury,
as appropriate, shall publish and widely disseminate guidance
and information for group health plans, participants and
beneficiaries, applicable State and local regulatory bodies,
and the National Association of Insurance Commissioners
concerning the requirements of this section and shall provide
assistance concerning such requirements and the continued
operation of applicable State law. Such guidance and
information shall inform participants and beneficiaries of how
they may obtain assistance under this section, including, where
appropriate, assistance from State consumer and insurance
agencies.
* * * * * * *
Subpart C--General Provisions
* * * * * * *
SEC. 733. DEFINITIONS.
(a) Group Health Plan.--For purposes of this part and section
502(a)(12)--
(1) In general.--The term ``group health plan'' means
an employee welfare benefit plan to the extent that the
plan provides medical care (as defined in paragraph (2)
and including items and services paid for as medical
care) to employees or their dependents (as defined
under the terms of the plan) directly or through
insurance, reimbursement, or otherwise. Such term shall
not include any qualified small employer health
reimbursement arrangement (as defined in section
9831(d)(2) of the Internal Revenue Code of 1986).
(2) Medical care.--The term ``medical care'' means
amounts paid for--
(A) the diagnosis, cure, mitigation,
treatment, or prevention of disease, or amounts
paid for the purpose of affecting any structure
or function of the body,
(B) amounts paid for transportation primarily
for and essential to medical care referred to
in subparagraph (A), and
(C) amounts paid for insurance covering
medical care referred to in subparagraphs (A)
and (B).
(b) Definitions Relating to Health Insurance.--For purposes
of this part and section 502(a)(12)--
(1) Health insurance coverage.--The term ``health
insurance coverage'' means benefits consisting of
medical care (provided directly, through insurance or
reimbursement, or otherwise and including items and
services paid for as medical care) under any hospital
or medical service policy or certificate, hospital or
medical service plan contract, or health maintenance
organization contract offered by a health insurance
issuer.
(2) Health insurance issuer.--The term ``health
insurance issuer'' means an insurance company,
insurance service, or insurance organization (including
a health maintenance organization, as defined in
paragraph (3)) which is licensed to engage in the
business of insurance in a State and which is subject
to State law which regulates insurance (within the
meaning of section 514(b)(2)). Such term does not
include a group health plan.
(3) Health maintenance organization.--The term
``health maintenance organization'' means--
(A) a federally qualified health maintenance
organization (as defined in section 1301(a) of
the Public Health Service Act (42 U.S.C.
300e(a))),
(B) an organization recognized under State
law as a health maintenance organization, or
(C) a similar organization regulated under
State law for solvency in the same manner and
to the same extent as such a health maintenance
organization.
(4) Group health insurance coverage.--The term
``group health insurance coverage'' means, in
connection with a group health plan, health insurance
coverage offered in connection with such plan.
(c) Excepted Benefits.--For purposes of this part, the term
``excepted benefits'' means benefits under one or more (or any
combination thereof) of the following:
(1) Benefits not subject to requirements.--
(A) Coverage only for accident, or disability
income insurance, or any combination thereof.
(B) Coverage issued as a supplement to
liability insurance.
(C) Liability insurance, including general
liability insurance and automobile liability
insurance.
(D) Workers` compensation or similar
insurance.
(E) Automobile medical payment insurance.
(F) Credit-only insurance.
(G) Coverage for on-site medical clinics.
(H) Other similar insurance coverage,
specified in regulations, under which benefits
for medical care are secondary or incidental to
other insurance benefits.
(2) Benefits not subject to requirements if offered
separately.--
(A) Limited scope dental or vision benefits.
(B) Benefits for long-term care, nursing home
care, home health care, community-based care,
or any combination thereof.
(C) Such other similar, limited benefits as
are specified in regulations.
(3) Benefits not subject to requirements if offered
as independent, noncoordinated benefits.--
(A) Coverage only for a specified disease or
illness.
(B) Hospital indemnity or other fixed
indemnity insurance.
(4) Benefits not subject to requirements if offered
as separate insurance policy.--Medicare supplemental
health insurance (as defined under section 1882(g)(1)
of the Social Security Act), coverage supplemental to
the coverage provided under chapter 55 of title 10,
United States Code, and similar supplemental coverage
provided to coverage under a group health plan.
(d) Other Definitions.--For purposes of this part--
(1) COBRA continuation provision.--The term ``COBRA
continuation provision'' means any of the following:
(A) Part 6 of this subtitle.
(B) Section 4980B of the Internal Revenue
Code of 1986, other than subsection (f)(1) of
such section insofar as it relates to pediatric
vaccines.
(C) Title XXII of the Public Health Service
Act.
(2) Health status-related factor.--The term ``health
status-related factor'' means any of the factors
described in section 702(a)(1).
(3) Network plan.--The term ``network plan'' means
health insurance coverage offered by a health insurance
issuer under which the financing and delivery of
medical care (including items and services paid for as
medical care) are provided, in whole or in part,
through a defined set of providers under contract with
the issuer.
(4) Placed for adoption.--The term ``placement'', or
being ``placed'', for adoption, has the meaning given
such term in section 609(c)(3)(B).
(5) Family member.--The term ``family member'' means,
with respect to an individual--
(A) a dependent (as such term is used for
purposes of section 701(f)(2)) of such
individual, and
(B) any other individual who is a first-
degree, second-degree, third-degree, or fourth-
degree relative of such individual or of an
individual described in subparagraph (A).
(6) Genetic information.--
(A) In general.--The term ``genetic
information'' means, with respect to any
individual, information about--
(i) such individual`s genetic tests,
(ii) the genetic tests of family
members of such individual, and
(iii) the manifestation of a disease
or disorder in family members of such
individual.
(B) Inclusion of genetic services and
participation in genetic research.--Such term
includes, with respect to any individual, any
request for, or receipt of, genetic services,
or participation in clinical research which
includes genetic services, by such individual
or any family member of such individual.
(C) Exclusions.--The term ``genetic
information'' shall not include information
about the sex or age of any individual.
(7) Genetic test.--
(A) In general.--The term ``genetic test''
means an analysis of human DNA, RNA,
chromosomes, proteins, or metabolites, that
detects genotypes, mutations, or chromosomal
changes.
(B) Exceptions.--The term ``genetic test''
does not mean--
(i) an analysis of proteins or
metabolites that does not detect
genotypes, mutations, or chromosomal
changes; or
(ii) an analysis of proteins or
metabolites that is directly related to
a manifested disease, disorder, or
pathological condition that could
reasonably be detected by a health care
professional with appropriate training
and expertise in the field of medicine
involved.
(8) Genetic services.--The term ``genetic services''
means--
(A) a genetic test;
(B) genetic counseling (including obtaining,
interpreting, or assessing genetic
information); or
(C) genetic education.
(9) Underwriting purposes.--The term ``underwriting
purposes'' means, with respect to any group health
plan, or health insurance coverage offered in
connection with a group health plan--
(A) rules for, or determination of,
eligibility (including enrollment and continued
eligibility) for benefits under the plan or
coverage;
(B) the computation of premium or
contribution amounts under the plan or
coverage;
(C) the application of any pre-existing
condition exclusion under the plan or coverage;
and
(D) other activities related to the creation,
renewal, or replacement of a contract of health
insurance or health benefits.
* * * * * * *
MINORITY VIEWS
Introduction
We continue to see the terrible consequences of students
and young adults suffering from mental health issues. In the
wake of prolonged school closures, Democrats have received a
giant warning: stop playing to the base and start working
across the aisle to save lives.
School closures were particularly damaging for young
people. In 2021, more than one-third of high school students
reported they experienced poor mental health during the COVID-
19 pandemic, and over 40 percent reported persistent feelings
of sadness or hopelessness during the preceding year.\1\
Studies show that the prolonged shutdown of schools exacerbated
students' mental health issues.\2\ The pandemic created a
pervasive sense of fear, economic instability, and forced
physical distancing, which significantly worsened the stresses
young people already faced. School closures caried high social
and economic costs, and the impact was particularly severe for
the most vulnerable students and families.\3\ According to the
Centers for Disease Control and Prevention, fewer than half of
youth reported feeling close to peers and teachers at school
during the pandemic.\4\ Youth who were more disconnected from
school were found to be more likely to have feelings of
hopelessness, serious considerations of suicide, or attempts of
suicide.\5\ Additionally, fifteen percent of youth reported
suffering from at least one major depressive episode in the
preceding year.\6\ Childhood depression is more likely to
persist into adulthood if gone untreated.\7\ Suicide is the
fourth leading cause of death among teens and young adults
globally and the second leading cause of death in youth in the
United States.\8\
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\1\https://www.cdc.gov/media/releases/2022/p0331-youth-mental-
health-covid-19.html.
\2\Student anxiety, depression increasing during school closures,
survey finds | EdSource.
\3\Student anxiety, depression increasing during school closures,
survey finds | EdSource.
\4\https://www.cdc.gov/media/releases/2022/p0331-youth-mental-
health-covid-19.html.
\5\https://www.cdc.gov/mmwr/volumes/69/wr/mm6945a3.htm.
\6\https://www.cdc.gov/mmwr/volumes/69/wr/mm6945a3.htm.
\7\Youth Data 2021 | Mental Health America (mhanational.org).
\8\https://www.nimh.nih.gov/health/statistics/suicide.
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TITLES I-IV
Democrats included two currently funded programs and two
new programs related to education and Head Start programs in
H.R. 7780 as the base for their proposal to address mental
health challenges in schools. While these were a good start to
addressing the mental health needs of students, there are
improvements that could be made to better target this support.
To truly work for the students, these programs should be better
connected to the needs on the ground.
Despite current funding for these efforts being just under
$125 million, H.R. 7780 authorizes over $5 billion in
additional spending, an irresponsible amount with no guarantee
that the Department can award those funds to high-quality
programs.
That is why Republicans took a more practical, reliable,
and responsible approach to help local school and community
leaders address the mental health needs for students. First,
the Republican proposal is funded at $125 million over five
years. This corresponds to the existing funding and, with the
legislative improvements proposed, would be real funds
available for states and school districts to use to address
mental health. In the time since this bill was marked up,
Congress hastily passed other legislation that included these
programs, thus making this bill obsolete before the report was
filed. Unfortunately, that legislation included significant new
funding for these programs without addressing the basic concern
of ensuring these taxpayer funds will be used in an effective
manner to meet its intended purpose: to help students.
Republican Amendment
Beyond addressing funding levels, Republicans streamlined
the existing programs to avoid duplication of effort. By
streamlining funding, eligible entities can spend less time
filling out paperwork and tracking duplicative requirements and
more time meeting the mental health needs of students. Further,
the Republican proposal is structured around actual needs on
the ground. By requiring a need analysis by the state, the
program allows the state to use the funds to address the actual
needs they are facing rather than forcing the state to use
those funds on whatever needs Washington, D.C. has determined
to be significant. There is also a requirement for the local
eligible entity to have a need analysis which can either be a
part of the state analysis or can be conducted by the eligible
entity. The Republican plan makes it clear that these funds are
intended to help all students in need, whether they be
traditional public school students, charter school students, or
private school students. As previously noted, the school
closures had a severe, negative impact on students, increasing
the mental health crisis communities are facing. The Republican
proposal would ensure local school leaders have access to
funding to address the particular needs of their community.
The Republican proposal also recognizes the need for
coordination of programs. Rather than layer program on top of
program like the Democrat proposal does, the Republican plan
provides grants to states which in turn provide grants to local
eligible entities. This ensures the state is aware of the needs
in each community that receives funding and can both better
support those efforts and can avoid wasteful and duplicative
work. Further, the Republican plan provides the state with
funding to support the local grantees through technical
assistance and other support. This protects the taxpayer`s
investment to ensure the funds are well spent. The plan also
includes funding for states to offer statewide programs to
address the mental health needs students face; these programs
must be tied to the need analysis. Finally, by including
statewide activities, Republicans ensure greater support to
students across the state.
Finally, the Republican proposal includes important
accountability metrics and would restrict any funds from going
to states or local entities if they cannot demonstrate adequate
progress toward the stated goals in the application. In other
words, if the state or local grantee is not doing what they
said they would or if what they are doing simply does not work,
the taxpayer would stop funding it. This plan would support
success and cut off failed projects.
TITLE V: RISE ACT
Title V of the Mental Health Matters Act contains the
Respond, Innovate, Succeed, and Empower (RISE) Act. Republicans
support the intent of this language: we agree that students
with disabilities should face fewer hoops to jump through when
documenting their disability to their college or university and
receiving their legally required accommodations. Unfortunately,
the RISE Act has unintended consequences that should be
addressed before this package proceeds. These flaws are the
inevitable result when the majority rushes legislation through
the process without taking the time either to engage with
outside stakeholders or to reach across the aisle to understand
the impact of a bill.
First, this bill could force colleges and universities to
accept long-outdated documentation from students who are
claiming disability status but who do not in fact have a
qualifying disability under federal disability law. Second, the
bill removes almost all discretion from colleges and
universities in determining if a student qualifies as a student
with a disability. The Individuals with Disabilities Education
Act, which imposes a stricter legal framework on elementary and
secondary schools than colleges and universities face under
section 504 of the Rehabilitation Act of 1973 or the Americans
with Disabilities Act, gives elementary and secondary schools
more discretion than this bill provides colleges and
universities. Whether this is an admirable feature of the bill
or a concerning one is debatable--and that is the point: we
should debate it, among ourselves and with outside experts, so
that we can fully understand the consequences of such a
decision before we move forward.
Committee Republicans would happily engage with
stakeholders and our friends across the aisle to come to a
bipartisan resolution on this bill. And perhaps we will be able
to do that in the next Congress in the context of a
comprehensive reform of the Higher Education Act.
Unfortunately, until the majority allows that process to play
out, we must urge opposition to this language.
TITLES VI AND VII OF H.R. 7780
Titles VI and VII of H.R. 7780 include the text of two
bills\9\ introduced less than a week before the markup of H.R.
7780 and that were never discussed at a Committee hearing.
Committee Republicans are dedicated to improving access to
employee benefits and reducing the burdens on employers who
offer such benefits. That is why Committee Republicans worked
with Committee Democrats on a bipartisan basis to pass H.R.
5891, the Retirement Improvement and Savings Enhancement Act
(RISE Act) as part of H.R. 2954, the Securing a Strong
Retirement Act (SSRA). Rather than push partisan legislation
like H.R. 7780, which will threaten access and affordability of
workplace benefits, the Committee should focus on enacting the
bipartisan reforms in the RISE Act and SSRA.
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\9\H.R. 7767, the Strengthening Behavioral Health Benefits Act, was
introduced by Rep. Joe Courtney (D-CT) on May 13, 2022, and H.R. 7740,
the Employee and Retiree Access to Justice Act of 2022, was introduced
by Rep. Mark DeSaulnier (D-CA) on May 12, 2022.
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H.R. 7780 THREATENS AND DELAYS ACCESS TO WORKPLACE BENEFITS
DOL Enforcement Authority
Committee Republicans support mental health parity, which
is why Congress has passed multiple laws to ensure employers
are able to meet mental health parity requirements under the
Mental Health Parity and Addiction Equity Act (MHPAEA).
Unfortunately, Title VI of H.R. 7780 inappropriately expands
DOL's ability to bring civil actions against plans governed by
the Employee Retirement Income Security Act of 1974 (ERISA)
that voluntarily offer mental health benefits. Allowing
recoveries for ``all losses'' is ambiguous and overly broad,
especially given the difficulty of determining what would be
required to make the plan participant whole. Such a change to
ERISA could cause employers to drop mental health and substance
use disorder benefits altogether for fear of excessive
litigation. The Partnership for Employer-Sponsored Coverage
stated as follows:
Two proposals in H.R. 7780 (to encourage individual
and DOL [Department of Labor]/EBSA [Employee Benefits
Security Administration] enforcement of parity
standards; and to ban arbitration and other
discretionary clauses) essentially weaponize the
relationship between employers that sponsor health
coverage and their covered employees as regards to
mental health care and substance abuse disorder and
coverage. Litigation will add to the cost of coverage
for employees and employers without meaningfully
improving coverage.\10\
---------------------------------------------------------------------------
\10\Letter from Partnership for Employer-Sponsored Coverage to
Reps. Bobby Scott and Virginia Foxx (May 17, 2022).
There is great value in providing patients with robust
mental health coverage, which is why many employers voluntarily
include mental health coverage as part of a benefits package.
However, despite receiving explicit direction from Congress
outlining the information DOL must provide plans, the
Department has yet to issue guidance illustrating how plans may
demonstrate compliance with the law. DOL's 2020 MHPAEA report
to Congress stated that 100 percent of plans were out of
compliance with the Department's mental health parity analysis
requirements.\11\ If DOL believes that every plan is out of
compliance, the Department has clearly failed to explain to
plans what is required and to assist them in adhering to those
requirements.
---------------------------------------------------------------------------
\11\2022 MHPAEA Report to Congress, https://www.dol.gov/sites/
dolgov/files/EBSA/laws-and-regulations/laws/mental-health-parity/
report-to-congress-2022-realizing-parity-reducing-stigma-and-raising-
awareness.pdf.
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Discretionary Clauses
Most ERISA benefit plans, including health and retirement
plans, adopt discretionary clauses which grant the plan
administrator discretionary authority to interpret the plan
documents and resolve disputes pursuant to DOL regulations.\12\
This ability to delegate authority to the plan administrator is
born out of ERISA's goal of encouraging employers to sponsor
and implement benefit plans. Further, ERISA`s claims process is
meant to be expedited, and factual determinations need to be
made about the terms of the plan.
---------------------------------------------------------------------------
\12\Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101 (1989).
---------------------------------------------------------------------------
By prohibiting discretionary clauses in ERISA plans under
Title VII of H.R. 7780, any benefit determinations made by the
plan would be far more likely to be challenged in court. Every
time an issue arises where the plan terms are not 100 percent
clear, the plan administrator would be powerless to interpret
the plan, leaving litigation as the only means of resolving the
issue. This outcome will substantially increase the costs and
liability of offering mental health and retirement benefits to
workers and their families. The American Retirement Association
agree with this assessment, stating as follows:
This change will simply result in more retirement
plan administrative costs and litigation that will
benefit the plaintiffs' bar but not everyday working
Americans who are saving for a secure retirement. This
legislation only offers more deterrent to maintaining
retirement plans and should be opposed.\13\
---------------------------------------------------------------------------
\13\Letter from Brian H. Graff, Exec. Dir./CEO, Am. Ret. Ass'n., to
Reps. Bobby Scott and Virginia Foxx (May 17, 2022).
The U.S. Chamber of Commerce shared similar concerns with
---------------------------------------------------------------------------
the Committee:
Contrary to its name, by effectively prohibiting
arbitration in ERISA claims and prohibiting
discretionary clauses, this provision would limit
recovery amounts, increase the costs of claims for
benefits, and increase the time for courts to resolve
claims for benefits, including time sensitive claims
such as disability and severance.\14\
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\14\Letter from Neil L. Bradley, Exec. Dir., Chief Pol'y Off., &
Head of Strategic Advocacy, U.S. Chamber of Com., to Reps. Bobby Scott
and Virginia Foxx (May 18, 2022).
At best, employers sponsoring mental health and retirement
plans will divert cash to pay plaintiffs' attorneys that could
be better spent providing benefits to employees. At worst, plan
sponsors will reduce or eliminate benefits altogether. Either
way, there will be downward pressure on mental health benefits
and retirement savings--at a time when soaring inflation is
eating away both wages and savings.
Arbitration Clauses
Title VII of H.R. 7780 further delays ERISA's benefits
claims process at the expense of plan participants by
prohibiting pre-dispute arbitration and curtailing post-dispute
arbitration. Arbitration clauses are important tools for
protecting participants and benefit plans from the costs of
litigation and the fees paid to plaintiffs' attorneys. Unlike
litigation, which takes years to realize results, arbitration
can facilitate the timely receipt of benefits owed to
participants. The national average time between filing a civil
case and a trial in U.S. district courts is more than two
years; if the court is overworked, the average is often three
or four years.\15\ In comparison, a recent study found that
consumer- and employee-arbitration claimants are more likely to
win, receive higher monetary awards, and spend less time in
arbitration than in litigation.\16\ Given the advantages of
arbitration to plan participants, Title VII of H.R. 7780's
curtailment of arbitration only benefits trial lawyers who reap
attorneys' fees in litigation.
---------------------------------------------------------------------------
\15\The Judicial Conference's Recommendation for More Judgeships:
Hearing Before the S. Comm. on the Judiciary, 116th Cong. (June 30,
2020) (statement of Judge Brian Stacy Miller, D.C. Ark., at 10).
\16\Nam D. Pham & Mary Donavan, NDP Analytics, Fairer, Faster,
Better III: An Empirical Assessment of Consumer and Employment
Arbitration (Mar. 2022), https://instituteforlegalreform.com/wp-
content/uploads/2022/03/FINAL-ndp-Consumer-and-Employment-Arbitration-
Paper-2022.pdf.
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H.R. 7780 NEEDLESSLY SPENDS TAXPAYER DOLLARS
H.R. 7780 needlessly appropriates an additional $275
million in new mandatory funding over 10 years to EBSA for
mental health parity enforcement. To put this into perspective,
EBSA's Fiscal Year 2022 budget is $181 million. In addition to
annual appropriations, EBSA received $8.6 million in FY 2021
and $23.8 million in FY 2020 to implement the mental health
parity requirements of the Consolidated Appropriations Act,
2020.\17\
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\17\Title VI's large increase in spending reflects the Department
of Labor's FY 2023 budget request for mental health parity enforcement.
The budget request proposes doubling EBSA's full-time employees
auditing plans. FY 2023 Congressional Budget Justification, Emp.
Benefits Security Admin., https://www.dol.gov/sites/dolgov/files/
general/budget/2023/CBJ-2023-V2-01.pdf.
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REPUBLICAN AMENDMENTS
Rep. Rick Allen (R-GA) offered an amendment at the
Committee markup to ensure that DOL assists employers and
health plans to meet mental health parity requirements and to
protect taxpayers from yet more needless government spending.
The amendment makes implementation of Title VI of H.R. 7780
conditional on DOL fulfilling its statutory duty by issuing a
rule that provides clear guidance and compliance assistance to
employers and plans on how to meet its mental health parity
requirements. The amendment also strikes Title VI's $275
million in new mandatory funding for mental health parity
enforcement. Congress should not provide DOL with additional
enforcement authority and taxpayer dollars to create mental
health parity rules through litigation and legal claims. DOL
could more effectively advance mental health if it focused its
efforts on establishing clear guidance and compliance
assistance instead of harassing plans and employers. Democrats
voted against this commonsense amendment.
Rep. Diana Harshbarger (R-TN) offered an amendment
highlighting Democrats' preferential treatment for union-run
benefit plans. The amendment strikes Title VII's exemption of
multiemployer benefit plans from the bill`s prohibition on
discretionary clauses. Prohibiting discretionary clauses is a
drastic and ill-conceived departure from current law that will
only benefit trial lawyers at the expense of workers and
retirees who rely on employee benefit plans. If Democrats
insist on disrupting the administration of employee benefits,
then they should not exempt their friends in Big Labor who run
multiemployer benefit plans. While alarming, this blatant
display of favoritism is not surprising. Last year, Democrats
enacted an irresponsible and uncapped taxpayer-funded bailout
of mismanaged multiemployer pension plans under the guise of
COVID 19 relief in the so-called American Rescue Plan Act.\18\
Rather than apply the law equally to single employer and
multiemployer plans, Democrats rejected this amendment in a
party-line vote.
---------------------------------------------------------------------------
\18\Pub. L. No. 117-2 (2021), 29 U.S.C. Sec. 1432.
---------------------------------------------------------------------------
Rep. Mary Miller (R-IL) offered an amendment to strike the
requirement to provide graduates specific education regarding
how to meet the needs of lesbian, gay, bisexual, transgender,
queer, or questioning, non-binary, or Two-Spirit. This grant is
supposed to be for increasing the number of school-based mental
health professionals serving in high-need school districts and
federal grants should be structured to help local areas address
the various needs they face.
Conclusion
Mental health is a grave issue that impacts families and
children alike. Washington should stop pretending there is one
solution that works for every community. If America is going to
solve this crisis, it will take clearer goals, stronger
support, and more flexibility given to local leaders on how
best to solve the problems faced on the ground. The Republican
alternative does all this in a fiscally responsible manner.
Republicans are ready to work with Democrats once they are drop
their bloated proposals that fail to focus on local needs.
Virginia Foxx,
Ranking Member.
Glenn ``GT'' Thompson.
Tim Walberg.
Glenn Grothman.
Elise M. Stefanik.
Rick W. Allen.
James Comer.
Russ Fulcher.
Fred Keller.
Burgess Owens.
Lisa C. McClain.
Mary E. Miller.
Scott Fitzgerald.
Chris Jacobs.
Brad Finstad.
[all]