The House is scheduled to consider H.R. 4247 on Wednesday, March 3, 2010, under a structured rule.  The rule makes in order two amendments, including one Republican amendment.  The rule also grants suspension authority through Thursday, March 4, 2010.  H.R. 4247 was introduced on December 9, 2009, by Rep. George Miller (D-CA) and referred to the Committee on Education and Labor, which held a markup and ordered the bill to be reported, as amended, by a vote of 34-10 on February 4, 2010.

H.R. 4247 would require the Secretary of Education to issue regulations regarding "seclusion and restraint" practices for students in both public and private schools that receive federal funding.  While numerous States already have some standards and regulations in place, this legislation would require States to meet minimum standards. 

Minimum Standards Required:  The bill would require the Secretary to promulgate regulations establishing minimum standards on the use of seclusion and restraint practices.  The minimum standards would include the following:

• Prohibiting school personnel from imposing on any student mechanical restraints, chemical restraints, physical restraint or physical situation that restricts breathing, or aversive behavioral interventions that compromise health and safety.
• Prohibiting school personnel from imposing physical restraint or seclusion on a student unless: (1) the student's behavior poses an imminent danger of physical injury to the student or others; (2) if less restrictive interventions would be ineffective in stopping physical injury; (3) if physical restraint or seclusion is imposed by an aide who is familiar with the student (someone who "continuously monitors the student face-to-face"); and (4) if such physical restraint or seclusion is imposed by trained and State-certified school personnel, or other school personnel in the case of an emergency. 
• Ensuring a sufficient number of State-certified trained personnel to meet the needs of the specific student population in each school.
• Prohibiting the inclusion of restraint or seclusion as a planned intervention in a student's individualized education plan (IEP), but allowing local education agencies (LEAs) or schools to establish policies for use of physical restraint or seclusion in school safety or crisis plans, provided that they are not specific to any individual student.
• Requirement for reporting after an incident to the parent of the student involved with an immediate verbal or electronic communication, and written notification within 24-hours of the incident.

H.R. 4247 prohibits the minimum standards from including any restriction on practices such as "time out," use of adaptive devices or mechanical supports that the child uses to achieve proper body position, vehicle safety restraints used during transit, and handcuffs by school resource officers when the student's behavior poses an imminent danger or in exercise of lawful law enforcement duties. 

The bill applies these minimum standards, as well as the rest of the legislation, to Native American schools funded by the Department of the Interior, as well as all those (including private schools) receiving funds from the Department of Education or serving students who receive services through the Department of Education.    

State Plan and Report Requirements:  The bill would require each State to report to the Secretary within two years of enactment illustrating how they are meeting the minimum standards, including the standards with respect to State-approved crisis intervention training programs.  The State must also report that they have developed a mechanism to effectively monitor and enforce the minimum standards. 

The bill requires that the report from the State include a description of the policies and procedures, and a description of the State's plans to ensure that school personnel and parents are aware of the State policies and procedures.  Specifically, the report would need to include the total number of incidents in which physical restraint was used, and the total number of incidents in which seclusion was used.  The bill requires that a further breakdown of the totals be made to determine how many of those incidents resulted in injury, death, or occurred at the behest of a non-trained/certified member of school personnel.  Further disaggregation of the data would identify the age of the students involved, their disability status, and the total number of incidents per individual. 

If a State fails to comply with the reporting requirements, the bill gives the Secretary the authority to withhold federal funding for education programs until compliance.  For a State that has not complied, a corrective plan of action would be required within one year of their failure to comply.  H.R. 4247 would also give the Secretary the authority to issue a complaint to compel compliance of the State educational agency through a cease and desist order, similar to the authority granted to the Secretary in the General Education Provisions Act.  The bill requires that after demonstrating implementation of the minimum standards, the Secretary should resume federal funding to the State educational agency. 

New Grants:   The bill authorizes such sums for grants to State educational agencies to assist in establishing, implementing, and enforcing the policies and procedures to meet the minimum standards; improving State and local capacity to collect and analyze data related to physical restraint and seclusion; and improving school climate and culture by implementing school-wide positive behavior support approaches. 

H.R. 4247 would allow a State education agency receiving a grant to award sub-grants competitively to LEAs.  If awarded a grant, the bill requires that the LEA ensure that private school personnel can participate, on an equitable basis, in activities supported by grant funds (though there would be public control of the funds). 

A State educational agency or LEA may use their grant funding for:

• Research, development, implementation, and evaluation strategies, policies, and procedures to prevent and reduce physical restraint and seclusion in schools;
• Provide professional development, training, and certification for school personnel to meet standards;
• Carry out the reporting requirements made under the bill;

In addition to these activities, grantees may use their grant funding for one or more of the following:

• "Developing and implementing high-quality professional development and training programs to implement evidence-based systematic approaches to school-wide positive behavior supports, including improving coaching, facilitation, and training capacity for administrations, teachers, specialized instructional support personnel, and other staff;
• "Providing technical assistance to develop and implement evidence-based systematic approaches to school-wide positive behavior supports, including technical assistance for data-driven decision making related to behavioral supports and interventions in the classroom;
• "Researching, evaluating, and disseminating high-quality evidence-based programs and activities that implement school-wide positive behavior supports with fidelity;
• "Supporting other local positive behavior support implementation activities."

The bill requires that each grantee submit to the Secretary a report on their progress, including their progress on the prevention and reduction of physical restraint and seclusion in schools. 

National Assessment:  H.R. 4247 would require a national assessment to determine the effectiveness of the federally mandated minimum standards required by the bill, including an analysis of the effectiveness of federal, State, and local efforts to prevent and reduce the number of physical restraint and seclusion incidents.  The assessment would need to identify the types of programs and services that demonstrated the most effectiveness in preventing incidents of seclusion and restraint, and the evidence-based personnel training models that demonstrated success in preventing and reducing the number of incidents. 

The bill would require the Secretary to submit an interim report to the House Committee on Education and Labor summarizing the preliminary findings of the national assessment, and a final report on the findings of the national assessment no later than five years after enactment. 

Protection and Advocacy Systems:  H.R. 4247 would expand the authority of Protection and Advocacy systems (P&A) by granting them the authority to investigate, monitor, and enforce the provisions of this Act.  P&A systems are federally funded programs designed to help State governments, local communities, and private sector organizations provide persons with developmental disabilities with health care services, education, employment training and recreational or leisure opportunities.  Currently, under the Developmental Disabilities Assistance and Bill of Rights Act of 2000, P&A systems are granted the authority to investigate, monitor, and pursue legal methods to defend the legal and human rights of individuals with developmental disabilities.  H.R. 4247 would expand their involvement by granting them enforcement authority.  For more information on how Protection and Advocacy systems operate, see this CRS report. 

Head Start Programs:  The bill would require the Secretary to make regulations with respect to Head State program running agencies similar to those made for State educational agencies and LEAs.  Furthermore, the bill provides eligibility for grant funding to Head Start programs to establish and implement policies that procedures to meet the Secretary's regulations. 

Limitation of Authority:  H.R. 4247 states that nothing in the bill would restrict or limit any rights or remedies available to students or parents under federal or State law or regulation.  The bill exempts private schools that do not receive federal funding or that do not serve students who receive federal funding.  Instead, the regulations required by the bill would only apply to private schools that receive federal funding, including federal funding directed to the school for students who receive federal assistance for their education (i.e. students who receive assistance under the Individuals with Disabilities Education Act). 

H.R. 4247 specifically exempts home school parents and students from being required to follow the regulations prescribed by the Secretary.

Seclusion and restraint techniques are used to control students with behavioral problems, and sometimes, students with disabilities.  Seclusion can include being locked in a room alone for hours, and restraint techniques can vary from holding a child in a seat to various positions which may restrict a child's breathing and movement. 

The use of seclusion and restraint techniques, including how such techniques are defined, is primarily regulated at the State level.  Currently, thirty-one States have laws and regulations in place that govern the use of seclusion and restraint techniques in schools.  According to the Committee of Education and Labor Republican staff, the regulations differ greatly State-to-State.  Seven states place some restrictions of the use of restraints, but do not regulate seclusions.[1]  Seventeen States require that staff receive training before being permitted to restrain children.[2]  Thirteen States require schools to obtain consent prior to using foreseeable or non-emergency physical restraints,[3] while nineteen require parents to be notified after restraints have been used.[4]  Two States require annual reporting on the use of restraints.[5]  Eight States prohibit the use of prone restraints or restraints that impede a child's ability to breathe.[6]  Nineteen States have no laws or regulations related to the use of seclusions or restraints in schools.[7]  In addition, school districts may also have their own guidelines governing the use of such practices in the classroom.  In a report released this week by the Department of Education, 15 of the 19 States without laws stated that they intend to have protections in place this year or in the near future.    

During a hearing in 2009, the Government Accountability Office (GAO) testified that:

• Over the last two decades, there have been hundreds of allegations of child abuse made by attorneys, parents, advocacy groups, and the media over the use of seclusion rooms and restraint techniques in public schools.  
• They had confirmed that there have been several cases over the last few years in which children with disabilities, ranging in age from 4 to 14 years old, were abused as a result of the use of seclusion or restraints.  
• They examined 10 cases and determined that a number of them had resulted in the death of the student, which led to a criminal conviction, civil or administrative liability, or a large financial settlement.  
• They discovered that most of the teachers in these situations, including those in which the student died, were not trained in how to properly address discipline problems and were still in the teaching profession even after the incident.  

The report from GAO documented several cases where teachers and aides used tactics to seclude and restrain students with disabilities.  It revealed that in Texas and California alone, a combined 33,095 students were secluded or restrained in the school year leading up to the report's issuance.  During the hearing, local school administrators discussed the need for training in positive behavior interventions to help teachers and school officials avoid the need for seclusions and restraints.

In addition to the GAO report and the recent Department of Education report, other reports have documented cases of injury and death due to improper use of seclusion and restrain techniques.  The Council of Parent Attorneys and Advocates, Inc. (COPAA) published a report in May of 2009 documenting 155 cases where children were subjected to adverse intervention techniques.  Similarly, the National Disability Rights Network (NDRN) issued a report in January of 2010 documenting the inadequacies of State regulations and how incidents have occurred in the absence of federal guidelines.  P&A systems in both Texas and California have published their own studies as well. 

While there are no current federal regulations regarding seclusion and restraint in public and private schools, both terms are defined in the Children's Health Act of 2000.  In a similar vein to H.R. 4247, the Children's Health Act of 2000 grants the Secretary of Health and Human Services the authority to issue guidelines on the safety of children and youth in public and private health facilities.  The Children's Health Act restricts the use of seclusion and restraint in health care facilities that receive federal funds and in non-medical, community-based facilities for children and youth.  The only exceptions to these regulations are those for emergencies, if the individual is putting themselves-or others-in immediate danger, or if other less restrictive methods would be ineffective.

[1] Alaska, Colorado, Hawaii, Michigan, Ohio, Utah, and Virginia.

[2] California, Colorado, Connecticut, Illinois, Iowa , Maine, Maryland, Massachusetts, Nevada, New Hampshire, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Texas, and Virginia.

[3] Colorado, Delaware, Maryland, Massachusetts, Montana, New Hampshire, New York, North Carolina, Oregon, Pennsylvania, Tennessee, Virginia, and Washington.

[4] California, Colorado, Connecticut, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, and Virginia.

[5] California and Connecticut.

[6] Colorado, Connecticut, Iowa, Massachusetts, Pennsylvania, Rhode Island, Tennessee, and Washington.

[7] Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, New Jersey, North Dakota, Oklahoma, South Carolina, South Dakota, Vermont, Wisconsin, and Wyoming.

According to CBO, implementing H.R. 4247 would increase discretionary spending by about $250 million over the 2011-2015 period (subject to appropriations).  Enacting the bill would not affect direct spending or revenues.

Department of Education report on seclusion and restraint statutes, regulations, policies, and guidance in a State-by-State format can be found at http://www2.ed.gov/policy/seclusion/seclusion-state-summary.html#or.

During Committee markup of the bill, Republican Members of the Committee did not reach a consensus on the implications and consequences of the legislation.  Conference Vice-Chair McMorris Rogers, as the original Republican co-sponsor of the bill, supported the legislation while Ranking Member Kline opposed the bill in Committee.

Possible Concerns:

H.R. 4247 prescribes a federal one-sizes-fits-all solution to a problem that would otherwise be handled at the State level.  Currently, 46 States have laws in place or have indicated that they will do so in the near future governing the use of restraint and seclusion techniques in public and/or private schools.  Some Members may believe that the bill legislates prematurely.  It is only recently that the U.S. Department of Education began the process of collecting State and local data in order to independently assess the problem of restraint and seclusion techniques in schools.  While there are reports from NDRN and COPAA, some Members may discredit such reports based on perceived bias.  Therefore, some Members may feel that there is not yet a thorough understanding of the problem and that federal efforts without such information would not be prudent. 

The bill would apply any federal minimum standards created by the Secretary to private schools that accept direct federal funding for the education of a student, or any private school that participates in federal education programs.  Members may be concerned that this is a vast expansion of federal authority in private schools, and as a result, some private schools may forfeit the services they offer to avoid new mandates.  Furthermore, some Members may be concerned that by allowing this expansion of authority, Congress will only continue to expand federal authority over private schools through future legislation.  According to a recent U.S. Department of Education study, at least 44 percent of private schools would be affected by this bill based on their participation in Elementary and Secondary Education Act (ESEA) programs.  The report shows that 43 percent of private schools have students who benefit from IDEA, but there is no way of disaggregating between ESEA and IDEA participating schools.  The report also shows that 80 percent of Catholic schools would be affected by H.R. 4247.

Members may be concerned that this legislation creates new opportunities for trial lawyers and expands the role of the Protection and Advocacy system to enforce protections under the bill (current law grants them the authority to pursue legal, administrative, and other remedies to protect and defend the legal and human rights of individuals with developmental disabilities).  Some Members may point to the bill's vague and overly broad language as an open invitation for trial lawyers to sue school districts who will struggle to meet the bill's new requirements.  These Members are concerned that schools will simply stop addressing school safety issues out of fear that they could be sued; resorting to law enforcement to manage physically disruptive or threatening students.  While the legislation does not create a new private right of action, some Members may not be comfortable with the expanded authority given to the Protection and Advocacy system. 

Many school leaders and organizations have objected to H.R. 4247, including the Committee on Catholic Education (U.S. Conference of Catholic Bishops), Council for American Private Education (CAPE), American Association of School Administrators, American Association of Christian Schools, Association of Christian Schools International and the Council of Great City Schools. 

Additional Views:

Some Members may feel that the reporting done by the U.S. Department of Education, the GAO, NDRN, COPAA, and individual State reports illustrate enough of a problem in schools across the country, and where federal dollars are present, to provide federal protection to the children benefiting from that funding.  Members may feel that if the government supplies funding for the education of developmentally disabled children-who are so often innocent and blameless-then they should also ensure their protection.  Some Members may feel that federal regulations that create a minimum standard would only assist States that already have their own regulations and eliminate the variability between State regulations. 

Current law, the Children's Health Act of 2000, provides for protection of children and authorizes the Department of Health and Human Services Secretary to issue guidelines to protect kids in public and private health care facilities that receive federal funding.  Some Members may feel that H.R. 4247 simply expands this authority and brings parity to the Department of Education. 

The bill would also give States flexibility in determining how best to implement these regulations.  For States that currently do not have regulations in place, H.R. 4247 would put in motion a review of current practices and a chance to put in place adequate rules.

Among those in support of this legislation are dozens of organizations that are part of the disability advocate community, as well as the American Academy of Pediatrics, National Association of School Psychologists, National Association of the Deaf, National Autism Association, and National Down Syndrome Society.  This list is not exhaustive.

1. Rep. Miller (D-CA):  The amendment changes the short title of the bill to "Keeping All Students Safe Act," and makes strictly technical changes. 

2.  Rep. Flake (R-AZ):  The amendment states that it is the presumption of the Congress that all grants made under the Act will be awarded using competitive procedures based on merit.  The amendment would require that a report be made to Congress if grants are awarded using procedures other than competitive procedures, explaining why such procedures were used. 

The amendment would prohibit the funds made available by the Act to be used for earmarks.