CONGRESSWOMAN ELISE STEFANIK
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:
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:
In addition to these activities, grantees may use their grant funding for one or more of the following:
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. Seventeen States require that staff receive training before being permitted to restrain children. Thirteen States require schools to obtain consent prior to using foreseeable or non-emergency physical restraints, while nineteen require parents to be notified after restraints have been used. Two States require annual reporting on the use of restraints. Eight States prohibit the use of prone restraints or restraints that impede a child's ability to breathe. Nineteen States have no laws or regulations related to the use of seclusions or restraints in schools. 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:
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.
 Alaska, Colorado, Hawaii, Michigan, Ohio, Utah, and Virginia.
 California, Colorado, Connecticut, Illinois, Iowa , Maine, Maryland, Massachusetts, Nevada, New Hampshire, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Texas, and Virginia.
 Colorado, Delaware, Maryland, Massachusetts, Montana, New Hampshire, New York, North Carolina, Oregon, Pennsylvania, Tennessee, Virginia, and Washington.
 California, Colorado, Connecticut, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, and Virginia.
 California and Connecticut.
 Colorado, Connecticut, Iowa, Massachusetts, Pennsylvania, Rhode Island, Tennessee, and Washington.
 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.
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.
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.