[Pages S2366-S2371]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. LEVIN (for himself and Mr. McCain):
S. 454. A bill to improve the organization and procedures of the
Department of Defense for the acquisition of major weapon systems, and
for other purposes; to the Committee on Armed Services.
Mr. LEVIN. Mr. President, I am pleased to introduce the Weapon
Systems Acquisition Reform Act of 2009, with Senator McCain as an
original cosponsor. The Department of Defense faces huge problems in
its acquisition system today. Every year, the Government Accountability
Office publishes a report assessing DOD's purchases of major weapon
systems, and every year, the picture seems to get worse.
Since the beginning of 2006, nearly half of DOD's largest acquisition
programs have exceeded the so-called ``Nunn-McCurdy'' cost growth
standards established by Congress to identify seriously troubled
programs. As Secretary Gates pointed out in his testimony before the
Armed Services Committee last month, ``The list of big-ticket weapons
systems that have experienced contract or program performance problems
spans the services: the Air Force tanker, CSAR-X, VH-71, Osprey, Future
Combat Systems, Armed Reconnaissance Helicopter, Littoral Combat Ship,
Joint Strike Fighter, and so on.''
Overall, DOD's 95 major defense acquisition programs (known as
``MDAPs'') have exceeded their research and development budgets by an
average of 40 percent, seen their acquisition costs grow by an average
of 26 percent, and experienced an average schedule delay of almost two
years. Last summer, GAO reported that cost overruns on DOD's MDAPs now
total $295 billion over the original program estimates, even though we
have cut unit quantities and reduced performance expectations on many
programs in an effort to hold costs down.
These cost overruns happen because of fundamental flaws that are
endemic to our acquisition system. We even know what these flaws are:
DOD acquisition programs fail because the Department continues to rely
on unreasonable cost and schedule estimates, establish unrealistic
performance expectations, insist on the use of immature technologies,
and adopt costly changes to program requirements, production quantities
and funding levels in the middle of ongoing programs.
Particularly at this time, when the federal budget is under immense
strain as a result of the economic crisis we simply cannot afford this
kind of continued waste and inefficiency. That is why I am introducing
this bill with Senator McCain today and why I have scheduled an
acquisition reform hearing in the Armed Services Committee next week.
The problems in our acquisition system may not be easy to solve, but
they are far too big for us not to take whatever steps may be necessary
to correct them.
The key to successful acquisition programs is getting things right
from the start with sound systems engineering, cost-estimating, and
developmental testing early in the program cycle. Programs that are
built on a weak initial foundation, including immature technologies,
inadequate development and testing, and unrealistic requirements, are
likely to have big problems in the long run.
Unfortunately, a number of previous so-called acquisition ``reforms''
have taken the system in the wrong direction by cutting out people,
organizations, and processes needed to establish a sound initial
foundation for major programs. For example in the mid-1990's, DOD
experimented with assigning ``total system performance responsibility''
to contractors, abdicating its role in overseeing and ensuring program
performance; beginning in the late 1990's, DOD eliminated organizations
and capabilities responsible for providing system engineering and
overseeing developmental testing on major weapon systems; beginning in
2003, DOD revised its key guidance for major acquisition programs to
make the key early phases of an acquisition program optional,
authorizing MDAPs to skip over the concept refinement phase, the
technology development phase, and even the system development and
demonstration phase of the acquisition process, effectively leaping
into production before design considerations were adequately addressed.
The result has been excessive cost growth in weapon systems and
excessive delays in fielding major defense acquisition programs.

Congress has already taken some steps to address problems that come
late in the acquisition process--for example, by establishing
certification requirements to ensure that programs meet minimal
requirements before they enter system development and by tightening the
Nunn-McCurdy requirements that are used to identify underperforming
programs.

[[Page S2367]]

The bill that we are introducing today is designed to identify and
address major problems much earlier in program development--before a
Nunn-McCurdy threshold is breached, before a program is formally
initiated, and before the program's trajectory has been established.
For example, our bill would require the Department of Defense to
address problems with unreasonable performance requirements by
requiring DOD to reestablish systems engineering organizations and
developmental testing capabilities; make trade-offs between cost,
schedule and performance early in the program cycle; and conduct
preliminary design reviews before giving approval to new acquisition
programs; address problems with unreasonable cost and schedule
estimates by establishing a new, independent director of cost
assessment to ensure that unbiased data is available for senior DOD
managers; address problems with the use of immature technologies by
requiring the Director of Defense Research and Engineering (DDR&E) to
periodically review and assess the maturity of critical technologies
and by directing the Department to make greater use of prototypes,
including competitive prototypes, to prove that new technologies work
before trying to produce them; and address problems with costly changes
in the middle of a program by tightening the so-called ``Nunn-McCurdy''
requirements for underperforming programs to provide for the
termination of any such program that cannot be justified after
undergoing a complete reexamination and revalidation.
Taken together, these provisions will require the Department of
Defense to take the steps needed to put major defense acquisition
programs on a sound footing from the outset. If they are successfully
implemented, they should help these programs avoid future cost
overruns, schedule delays, and performance problems.
I look forward to working with Senator McCain and our colleagues to
enact these important reforms into law.
Mr. President, I ask unanimous consent that a bill summary be printed
in the Record.
There being no objection, the material was ordered to be placed in
the Record, as follows:

Summary of the Weapon Systems Acquisition Reform Act of 2009

Report after report has indicated that the key to
successful acquisition programs is getting things right from
the start with sound systems engineering, cost-estimating,
and developmental testing early in the program cycle. Over
the last twenty years, however, DOD has eliminated
acquisition organizations and cut the workforce responsible
for taking these actions, and has tried to ``reform'' the
acquisition process by taking shortcuts around early program
phases in which these actions should be taken. The result has
been excessive cost growth in weapon systems and excessive
delays in fielding those systems.

title 1: acquisition organization

Section 101. Systems Engineering Capabilities. The Defense
Science Board Task Force on Developmental Test and Evaluation
reported in May 2008 that ``the single most important step
necessary'' to address high rates of failure on defense
acquisition programs is ``a viable systems engineering
strategy from the beginning.'' The Government Accountability
Office has reached similar conclusions. Unfortunately, the
Committee on Pre-Milestone A and Early-Phase Systems
Engineering of Air Force Studies Board of the National
Research Council reported in February 2008 that the Air Force
has systematically dismantled its systems engineering
organizations and capabilities over the last twenty years.
The other services have done the same. Section 101 would
address this problem by requiring DOD to: (1) assess the
extent to which the Department has in place the systems
engineering capabilities needed to ensure that key
acquisition decisions are supported by a rigorous systems
analysis and systems engineering process; and (2) establish
organizations and develop skilled employees needed to fill
any gaps in such capabilities.
Section 102. Developmental Testing. Many weapon systems
fail operational testing because of problems that should have
been identified and corrected during developmental testing
much earlier in the acquisition process. The Defense Science
Board Task Force on Developmental Test and Evaluation
reported in May 2008 that this problem is due, in significant
part, to drastic reductions in organizations responsible for
developmental testing. According to the Task Force, the Army
has essentially eliminated its developmental testing
component, while the Navy and the Air Force cut their testing
workforce by up to 60 percent in some organizations. Section
102 would address this problem by: (1) requiring DOD to
reestablish the position of Director of Developmental Test
and Evaluation; and (2) requiring the military departments to
assess their developmental testing organizations and
personnel, and address any shortcomings in such organizations
and personnel.
Section 103. Technological Maturity Assessments. For years
now, the Government Accountability Office (GAO) has reported
that successful commercial firms use a ``knowledge-based''
product development process to introduce new products.
Although DOD acquisition policy embraces this concept,
requiring that technologies be demonstrated in a relevant
environment prior to program initiation, the Department
continues to fall short of this goal. Last Spring, GAO
reviewed 72 of DOD's 95 major defense acquisition programs
(MDAPs) and reported that 64 of the 72 fell short of the
required level of product knowledge. According to GAO, 164 of
the 356 critical technologies on these programs failed to
meet even the minimum requirements for technological
maturity. Section 103 would address this problem by making it
the responsibility of the Director of Defense Research and
Engineering (DDR&E) to periodically review and assess the
technological maturity of critical technologies used in
MDAPs. The DDR&E's determinations would serve as a basis for
determining whether a program is ready to enter the
acquisition process.
Section 104. Independent Cost Assessment. In a July 2008
report, the Government Accountability Office (GAO) reported
that ``DOD's inability to allocate funding effectively to
programs is largely driven by the acceptance of unrealistic
cost estimates and a failure to balance needs based on
available resources.'' According to GAO, ``Development costs
for major acquisition programs are often underestimated at
program initiation--30 to 40 percent in some cases--in large
part because the estimates are based on limited knowledge and
optimistic assumptions about system requirements and critical
technologies.'' Section 104 would address this problem by
establishing a Director of Independent Cost Assessment to
ensure that cost estimates for major defense acquisition
programs are fair, reliable, and unbiased.
Section 105. Role of Combatant Commanders. In a February
2009 report, the Government Accountability Office (GAO)
recommended that the acquisition process be modified to allow
combatant commanders (COCOMs) more influence and ensure that
their long-term needs are met. The GAO report states: ``a
COCOM-focused requirements process could improve joint war-
fighting capabilities by ensuring that the combatant
commander--the customer--is provided the appropriate level of
input regarding the capabilities needed to execute their
missions rather than relying on the military services--the
suppliers--to drive requirements.'' Section 105 would address
this problem by requiring the Joint Requirements Oversight
Council (JROC) to seek and consider input from the
commanders of the combatant commands in identifying joint
military requirements.

title 2: acquisition policy

Section 201. Trade-offs of Cost, Schedule and Performance.
The January 2006 report of the Defense Acquisition
Performance Assessment Project (DAPA) concluded that ``the
budget, acquisition and requirements processes [of the
Department of Defense] are not connected organizationally at
any level below the Deputy Secretary of Defense.'' As a
result, DOD officials often fail to consider the impact of
requirements decisions on the acquisition and budget
processes, or to make needed trade-offs between cost,
schedule and requirements on major defense acquisition
programs. Section 201 would address this problem by requiring
consultation between the budget, requirements and acquisition
stovepipes--including consultation in the joint requirements
process--to ensure the consideration of trade-offs between
cost, schedule, and performance early in the process of
developing major weapon systems.
Section 202. Preliminary Design Review (PDR). The
Government Accountability Office (GAO) has reported on
numerous occasions that a knowledge-based approach is
critical to the successful development of major weapon
systems. In January 2006, the Defense Acquisition Performance
Assessment Project (DAPA) endorsed this view, and recommended
that Milestone B decisions be delayed to occur after PDR, to
ensure a sufficient knowledge base to ensure the
technological maturity and avoid ``a long cycle of
instability, budget and requirements changes, costly delays
and repeated re-baselining.'' Section 202 would address this
problem by requiring the completion of a PDR and a formal
post-PDR assessment before a major defense acquisition
program receives Milestone B approval.
Section 203. Life-Cycle Competition. The Defense Science
Board Task Force on Defense Industrial Structure for
Transformation reported in July 2008 that consolidation in
the defense industry has substantially reduced innovation in
the defense industry and created incentives for major
contractors to maximize profitability on established programs
rather than seeking to improve performance. The Task Force
recommended the adoption of measures--such as competitive
prototyping, dual-sourcing, funding of a second source for
next generation technology, utilization of open architectures
to ensure competition for upgrades,

[[Page S2368]]

periodic competitions for subsystem upgrades, licensing of
additional suppliers, government oversight of make-or-buy
decisions--to maximize competition throughout the life of a
program, periodic program reviews, and requirement of added
competition at the subcontract level. Section 203 would
require the Department of Defense to implement this
recommendation.
Section 204. Nunn-McCurdy Breaches. Since the beginning of
2006, nearly half of DOD's 95 Major Defense Acquisition
Programs (MDAPs) have experienced critical cost growth, as
defined in the Nunn-McCurdy provision, as amended. Overall,
these 95 MDAPs have exceeded their research and development
budgets by an average of 40 percent, seen their acquisition
costs grow by an average of 26 percent, and experienced an
average schedule delay of almost two years. Such cost growth
has become so pervasive that it may come to be viewed as an
expected and acceptable occurrence in the life of a weapons
program. Section 204 would address this problem and enhance
the use of Nunn-McCurdy as a management tool by requiring
MDAPs that experience critical cost growth: (1) be terminated
unless the Secretary certifies (with reasons and supporting
documentation) that continuing the program is essential to
the national security and the program can be modified to
proceed in a cost-effective manner; and (2) receive a new
Milestone Approval (and associated certification) prior to
the award of any new contract or contract modification
extending the scope of the program. In accordance with
section 104, a certification as to the reasonableness of
costs would have to be supported by an independent cost
estimate and a stated confidence level for that estimate.
Section 205. Organizational Conflicts of Interest. Defense
Science Board Task Force on Defense Industrial Structure for
Transformation reported in July 2008 that ``many of the
systems engineering firms which previously provided
independent assessment [of major defense acquisition
programs] have been acquired by the large prime
contractors.'' As a result, the Task Force reported,
``different business units of the same firm can end up with
both the service and product side in the same program or
market area.'' This structural conflict of interest may
result in ``bias [and] impaired objectivity,'' which cannot
be resolved through firewalls or other traditional mitigation
mechanisms. Section 205 would address this problem, as
recommended by the Task Force, by: (1) prohibiting systems
engineering contractors from participating in the development
or construction of the major weapon systems on which they are
advising the Department of Defense; and (2) requiring
tightened oversight of organizational conflicts of interests
by contractors in the acquisition of major weapon systems.
Section 206. Acquisition Excellence. The Department of
Defense will need an infusion of highly skilled and capable
acquisition specialists to carry out the requirements of this
bill and address the problems in the defense acquisition
system. The Committee has already established an acquisition
workforce development fund to provide the resources needed to
hire and retain new workers. However, positive motivation is
needed as much as money. Section 206 would address this issue
by establishing an annual awards program--modeled on the
Department's successful environmental awards program--to
recognize individuals and teams who make significant
contributions to the improved cost, schedule, and performance
of defense acquisition programs.

Mr. McCAIN. Mr. President, over the last few years, Senate Armed
Services Committee Chairman Levin and I have developed a number of
initiatives that reform various aspects of the defense procurement
process. Our hope is that, in the aggregate, those initiatives,
including those that help control the proliferation of non-essential
requirements; have the Department of Defense move towards more fixed
price-type contracts while incentivizing performance; and subject major
systems to a more evolutionary, knowledge-based procurement process,
will have a beneficial effect on the process--as a system. I am under
no delusion that a single ``silver bullet'' will remedy a fundamentally
broken defense acquisition system.
The Weapon System Acquisition Reform Act of 2009, which I am pleased
to introduce with Chairman Levin today, is an important next step in
efforts to reform the system.
Consensus has emerged that a key to defense acquisition programs'
performing successfully is getting things right from the start--with
sound systems engineering, cost-estimating, and developmental testing
early in the program cycle. Doing so helps the DoD understand and mete
out costly technology-and integration-risk out of programs early--
before the DoD makes important go/no-go decisions on the program that
effectively out it ``on rails''.
We have learned this lesson the hard way--at great cost to the
taxpayer. Typically, major weapons have been procured with insufficient
systems engineering knowledge about critical technologies. But, with
those weapons programs having, by a certain point, acquired often
overwhelming political momentum, Nunn-McCurdy, basically only a
reporting requirement, has done very little to bring costs associated
with those originally underappreciated risks under control.
We now know that when a program is predictable, that is, when
decision milestones are being met; estimated costs are actual costs;
and performance to contract specifications and key performance
parameters are achieved, the acquisition process can be relied on as
providing the joint warfighter with optimal capability at the most
reasonable cost to the taxpayer.
The bill that I am introducing with Chairman Levin today appreciates
that fact--by focusing on starting programs right. It does so by
emphasizing systems engineering; more effective upfront planning and
management of technology risk; and growing the acquisition workforce to
meet program objectives.
A particularly important feature of the bill includes a provision
that puts Nunn-McCurdy ``on dynamite.'' That provision requires, among
other things, that programs currently underway, post-Milestone B,
experiencing ``critical'' cost growth either be terminated or enter the
new defense acquisition system, which the DoD recently and
fundamentally restructured to help it manage technology and integration
risk. In so doing, Chairman Levin and I hope to transform Nunn-McCurdy
from a mere reporting requirement into a tool that can help the DoD
manage out-of-control cost growth.
While I am pleased to be introducing this legislation with Chairman
Levin, we certainly must, and will, do more. That having been said, the
primary responsibility to reform the process falls on the DoD itself.
No amount of legislation can substitute for a true commitment to
acquisition reform within the Pentagon. I look forward to seeing the
White House convey that commitment--through deeds--going forward.
______

By Mr. DODD (for himself, Mr. Alexander, Mr. Whitehouse, Mr.
Lautenberg, and Mr. Kerry):
S. 456. A bill to direct the Secretary of Health and Human Services,
in consultation with the Secretary of Education, to develop guidelines
to be used on a voluntary basis to develop plans to manage the risk of
food allergy and anaphylaxis in schools and early childhood education
programs, to establish school-based food allergy management grants, and
for other purposes; to the Committee on Health, Education, Labor, and
Pensions.
Mr. DODD. Mr. President, I rise today to introduce the Food Allergy
and Anaphylaxis Management Act of 2009. I want to thank Senators
Alexander, Whitehouse, Lautenberg, and Kerry for joining me for this
introduction.
Food allergies are an increasing food safety and public health
concern in this country, especially among young children. I know first-
hand just how frightening food allergies can be in a young person's
life. My own family has been personally touched by this troubling
condition and we continue to struggle with it each and every day.
Sadly, there is no cure for food allergies.
The number of Americans with food allergies is on the rise. From 1997
to 2007 the prevalence of food allergies among children increased by 18
percent. Today, 3 million children in the United States have a food
allergy. While food allergies were at one time considered relatively
infrequent, they now rank third among common chronic diseases in
children under 18 years of age. Peanuts are among several allergenic
foods that can produce life-threatening allergic reactions in
susceptible children. Peanut allergies doubled among school-age
children from 1997-2002.
Clearly, food allergies are of great concern for school-age children
nationwide, and yet, there are no federal guidelines concerning the
management of life-threatening food allergies in our nation's schools.
I have heard from parents, teachers and school administrators that
students with severe food allergies often face inconsistent food
allergy management approaches when they change

[[Page S2369]]

schools. Too often, families are not aware of the food allergy policy
at their children's school, or the policy is vastly different from the
one they knew at their previous school, and they are left wondering
whether their child is safe.
In 2006, Connecticut became the first State to enact school-based
guidelines concerning food allergies and the prevention of life-
threatening incidents in schools. I am very proud of these efforts, and
I know that the parents of children who suffer from food allergies in
Connecticut have confidence that their children are safe throughout the
school day. I had the opportunity to visit with students and parents at
Washington Elementary School in West Haven, CT, last May who shared
with me their schools' comprehensive plan for its students with food
allergies.
Nine other States, including Massachusetts, Tennessee, Vermont, New
Jersey, Arizona, Michigan, New York, Washington, and Maryland have
enacted statewide guidelines. But too many States across the country
have food allergy management guidelines that are inconsistent from one
school district to the next. The result is a patchwork of guidelines
that not only may vary from State to State, but also from school
district to school district.
In my view, this lack of consistency underscores the need for
enactment of uniform, federal guidelines that school districts can
choose to adopt and implement. For this reason, my colleague Senator
Alexander and I are introducing the Food Allergy and Anaphylaxis
Management Act of 2009 today to address the growing need for uniform
and consistent school-based food allergy management policy. I thank
Senator Alexander for his hard work and commitment to this important
legislation.
Mr. President, the bill we are introducing today closely mirrors
legislation I introduced last Congress which was cosponsored by 41 of
my colleagues. Last May, I, along with Senator Alexander, chaired a
hearing in our Children and Families Subcommittee exploring the current
state of food allergies and the challenges parents of children with
food allergies face.
Since that hearing, Senator Alexander and I have been working with
members on both sides of the aisle to address any concerns they had
with the legislation. As a result, the legislation we are introducing
today reflects many excellent suggestions and changes offered by my
colleagues. It is my sincere hope that the Senate will move quickly on
this bipartisan legislation this year.
The legislation does two things. First, it directs the Secretary of
Health and Human Services, in consultation with the Secretary of
Education, to develop and make available voluntary food allergy
management guidelines for preventing exposure to food allergens and
assuring a prompt response when a student suffers a potentially fatal
anaphylactic reaction. The guidelines developed by the Secretary are
voluntary, not mandatory. Under the legislation, each school district
or early childhood education program across the country can voluntarily
choose to implement these guidelines. The intent of the legislation is
not to mandate individual school policy, but rather to provide for
consistency of policies relating to school-based food allergy
management by providing schools with consistent guidelines at the
federal level.
Second, the bill provides for incentive grants to school districts to
assist them with adoption and implementation of the federal
government's allergy management guidelines in all K-12 public schools.
I would like to recognize the leadership of Congresswoman Nita Lowey
who is introducing companion legislation today in the House of
Representatives. She has been a longstanding champion for children and
for awareness of the devastating impact of food allergies. I also wish
to acknowledge and offer my sincere appreciation to the members of the
Food Allergy and Anaphylaxis Network for their commitment to this
legislation and for raising public awareness, providing advocacy, and
advancing research on behalf of all individuals who suffer from food
allergies.
This legislation is supported by the Food Allergy and Anaphylaxis
Network, the American Academy of Allergy, Asthma, and Immunology, and
many others.
Mr. President, I ask unanimous consent that the text of the bill and
a letter of support be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 456

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Food Allergy and Anaphylaxis
Management Act of 2009''.

SEC. 2. DEFINITIONS.

In this Act:
(1) 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.);
(B) a State licensed or regulated child care program or
school; or
(C) a State prekindergarten program that serves children
from birth through kindergarten.
(2) ESEA definitions.--The terms ``local educational
agency'', ``secondary school'', ``elementary school'', and
``parent'' have the meanings given the terms in section 9101
of the Elementary and Secondary Education Act of 1965 (20
U.S.C. 7801).
(3) School.--The term ``school'' includes public--
(A) kindergartens;
(B) elementary schools; and
(C) secondary schools.
(4) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.

SEC. 3. ESTABLISHMENT OF VOLUNTARY FOOD ALLERGY AND
ANAPHYLAXIS MANAGEMENT GUIDELINES.

(a) Establishment.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Secretary, in consultation with
the Secretary of Education, shall--
(A) develop guidelines to be used on a voluntary basis to
develop plans for individuals to manage the risk of food
allergy and anaphylaxis in schools and early childhood
education programs; and
(B) make such guidelines available to local educational
agencies, schools, early childhood education programs, and
other interested entities and individuals to be implemented
on a voluntary basis only.
(2) Applicability of ferpa.--Each plan described in
paragraph (1) that is developed for an individual shall be
considered an education record for the purpose of the Family
Educational Rights and Privacy Act of 1974 (20 U.S.C. 1232g).
(b) Contents.--The voluntary guidelines developed by the
Secretary under subsection (a) shall address each of the
following, and may be updated as the Secretary determines
necessary:
(1) Parental obligation to provide the school or early
childhood education program, prior to the start of every
school year, with--
(A) documentation from their child's physician or nurse--
(i) supporting a diagnosis of food allergy, and any risk of
anaphylaxis, if applicable;
(ii) identifying any food to which the child is allergic;
(iii) describing, if appropriate, any prior history of
anaphylaxis;
(iv) listing any medication prescribed for the child for
the treatment of anaphylaxis;
(v) detailing emergency treatment procedures in the event
of a reaction;
(vi) listing the signs and symptoms of a reaction; and
(vii) assessing the child's readiness for self-
administration of prescription medication; and
(B) a list of substitute meals that may be offered to the
child by school or early childhood education program food
service personnel.
(2) The creation and maintenance of an individual plan for
food allergy management, in consultation with the parent,
tailored to the needs of each child with a documented risk
for anaphylaxis, including any procedures for the self-
administration of medication by such children in instances
where--
(A) the children are capable of self-administering
medication; and
(B) such administration is not prohibited by State law.
(3) Communication strategies between individual schools or
early childhood education programs and providers of emergency
medical services, including appropriate instructions for
emergency medical response.
(4) Strategies to reduce the risk of exposure to
anaphylactic causative agents in classrooms and common school
or early childhood education program areas such as
cafeterias.
(5) The dissemination of general information on life-
threatening food allergies to school or early childhood
education program staff, parents, and children.
(6) Food allergy management training of school or early
childhood education program personnel who regularly come into
contact with children with life-threatening food allergies.

[[Page S2370]]

(7) The authorization and training of school or early
childhood education program personnel to administer
epinephrine when the nurse is not immediately available.
(8) The timely accessibility of epinephrine by school or
early childhood education program personnel when the nurse is
not immediately available.
(9) The creation of a plan contained in each individual
plan for food allergy management that addresses the
appropriate response to an incident of anaphylaxis of a child
while such child is engaged in extracurricular programs of a
school or early childhood education program, such as non-
academic outings and field trips, before- and after-school
programs or before- and after-early child education program
programs, and school-sponsored or early childhood education
program-sponsored programs held on weekends.
(10) Maintenance of information for each administration of
epinephrine to a child at risk for anaphylaxis and prompt
notification to parents.
(11) Other elements the Secretary determines necessary for
the management of food allergies and anaphylaxis in schools
and early childhood education programs.
(c) Relation to State Law.--Nothing in this Act or the
guidelines developed by the Secretary under subsection (a)
shall be construed to preempt State law, including any State
law regarding whether students at risk for anaphylaxis may
self-administer medication.

SEC. 4. SCHOOL-BASED FOOD ALLERGY MANAGEMENT GRANTS.

(a) In General.--The Secretary may award grants to local
educational agencies to assist such agencies with
implementing voluntary food allergy and anaphylaxis
management guidelines described in section 3.
(b) Application.--
(1) In general.--To be eligible to receive a grant under
this section, a local educational agency shall submit an
application to the Secretary at such time, in such manner,
and including such information as the Secretary may
reasonably require.
(2) Contents.--Each application submitted under paragraph
(1) shall include--
(A) an assurance that the local educational agency has
developed plans in accordance with the food allergy and
anaphylaxis management guidelines described in section 3;
(B) a description of the activities to be funded by the
grant in carrying out the food allergy and anaphylaxis
management guidelines, including--
(i) how the guidelines will be carried out at individual
schools served by the local educational agency;
(ii) how the local educational agency will inform parents
and students of the guidelines in place;
(iii) how school nurses, teachers, administrators, and
other school-based staff will be made aware of, and given
training on, when applicable, the guidelines in place; and
(iv) any other activities that the Secretary determines
appropriate;
(C) an itemization of how grant funds received under this
section will be expended;
(D) a description of how adoption of the guidelines and
implementation of grant activities will be monitored; and
(E) an agreement by the local educational agency to report
information required by the Secretary to conduct evaluations
under this section.
(c) Use of Funds.--Each local educational agency that
receives a grant under this section may use the grant funds
for the following:
(1) Purchase of materials and supplies, including limited
medical supplies such as epinephrine and disposable wet
wipes, to support carrying out the food allergy and
anaphylaxis management guidelines described in section 3.
(2) In partnership with local health departments, school
nurse, teacher, and personnel training for food allergy
management.
(3) Programs that educate students as to the presence of,
and policies and procedures in place related to, food
allergies and anaphylactic shock.
(4) Outreach to parents.
(5) Any other activities consistent with the guidelines
described in section 3.
(d) Duration of Awards.--The Secretary may award grants
under this section for a period of not more than 2 years. In
the event the Secretary conducts a program evaluation under
this section, funding in the second year of the grant, where
applicable, shall be contingent on a successful program
evaluation by the Secretary after the first year.
(e) Limitation on Grant Funding.--The Secretary may not
provide grant funding to a local educational agency under
this section after such local educational agency has received
2 years of grant funding under this section.
(f) Maximum Amount of Annual Awards.--A grant awarded under
this section may not be made in an amount that is more than
$50,000 annually.
(g) Priority.--In awarding grants under this section, the
Secretary shall give priority to local educational agencies
with the highest percentages of children who are counted
under section 1124(c) of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 6333(c)).
(h) Matching Funds.--
(1) In general.--The Secretary may not award a grant under
this section unless the local educational agency agrees that,
with respect to the costs to be incurred by such local
educational agency in carrying out the grant activities, the
local educational agency shall make available (directly or
through donations from public or private entities) non-
Federal funds toward such costs in an amount equal to not
less than 25 percent of the amount of the grant.
(2) Determination of amount of non-federal contribution.--
Non-Federal funds required under paragraph (1) may be cash or
in kind, including plant, equipment, or services. Amounts
provided by the Federal Government, and any portion of any
service subsidized by the Federal Government, may not be
included in determining the amount of such non-Federal funds.
(i) Administrative Funds.--A local educational agency that
receives a grant under this section may use not more than 2
percent of the grant amount for administrative costs related
to carrying out this section.
(j) Progress and Evaluations.--At the completion of the
grant period referred to in subsection (d), a local
educational agency shall provide the Secretary with
information on how grant funds were spent and the status of
implementation of the food allergy and anaphylaxis management
guidelines described in section 3.
(k) Supplement, Not Supplant.--Grant funds received under
this section shall be used to supplement, and not supplant,
non-Federal funds and any other Federal funds available to
carry out the activities described in this section.
(l) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this section $30,000,000 for
fiscal year 2010 and such sums as may be necessary for each
of the 4 succeeding fiscal years.

SEC. 5. VOLUNTARY NATURE OF GUIDELINES.

(a) In General.--The food allergy and anaphylaxis
management guidelines developed by the Secretary under
section 3 are voluntary. Nothing in this Act or the
guidelines developed by the Secretary under section 3 shall
be construed to require a local educational agency to
implement such guidelines.
(b) Exception.--Notwithstanding subsection (a), the
Secretary may enforce an agreement by a local educational
agency to implement food allergy and anaphylaxis management
guidelines as a condition of the receipt of a grant under
section 4.
____

Food Allergy and

Anaphylaxis Network,

Washington, DC, February 18, 2009.
Senator Christopher Dodd,
Russell Senate Office Building,
Washington, DC.
Dear Senator Dodd, on behalf of the Food Allergy and
Anaphylaxis Network (FAAN), I write to express strong support
for the Food Allergy and Anaphylaxis Management Act. This
important piece of legislation directs the Department of
Health and Human Services to develop guidelines for schools
to prevent exposure to food allergens and assure a prompt
response when a child suffers a potentially fatal
anaphylactic reaction.
FAAN was established in 1991 to raise public awareness,
provide advocacy and education, and advance research on
behalf of the more than 12 million Americans affected by food
allergies and anaphylaxis. FAAN has nearly 30,000 members
worldwide, including families, dietitians, nurses,
physicians, and school staff as well as representatives of
government agencies and the food and pharmaceutical
industries.
An estimated 2 million school age children suffer from food
allergies, for which there is no cure. Avoiding any and all
products with allergy-causing ingredients is the only way to
prevent potentially life-threatening reactions for our
children. Reactions often occur at school including severe
anaphylaxis, which can kill within minutes unless epinephrine
(adrenaline) is administered. Deaths from anaphylaxis are
usually a result of delayed administration of epinephrine.
Nevertheless, there are no current, standardized guidelines
to help schools safely manage students with the disease.
The Food Allergy and Anaphylaxis Network applauds your
effort to address the seriousness of food allergies and
create a safe learning environment for those children who
deal with these issues on a daily basis. We are pleased to
endorse your legislation.
Sincerely,
Julia E. Bradsher,
Chief Executive Officer.
____

American Academy of Allergy,

Asthma & Immunology,

Washington, DC, February 19, 2009.
Hon. Chris Dodd,
Hon. Lamar Alexander,
U.S. Senate,
Washington, DC.
Dear Senators Dodd and Alexander: I am writing on behalf of
the American Academy of Allergy, Asthma and Immunology
(AAAAI) to express our strong support for your legislation,
the Food Allergy and Anaphylaxis Management Act of 2007,
which would make available to schools appropriate guidelines
for the management of students with food allergy who are at
risk of anaphylactic shock. The AAAAI is the largest
professional medical specialty organization in the United
States representing allergists, asthma specialists, clinical
immunologists, allied health professionals and others
dedicated to improving the treatment of allergic diseases
through research and education.
The number of schoolchildren with food allergies has
increased dramatically in recent years. The policy developed
under your bill

[[Page S2371]]

would assist schools in preventing exposure to food allergens
and assuring a prompt response when a child suffers a
potentially fatal anaphylactic reaction.
Strict avoidance of the offending food is the only way to
prevent an allergic reaction as there is no cure for food
allergy. Fatalities from anaphylaxis often result from
delayed administration of epinephrine. The importance of
managing life-threatening food allergies in the school
setting has been recognized by our own organization as well
as the American Medical Association, the American Academy of
Pediatrics, and the National Association of School Nurses.
The American Academy of Allergy, Asthma and Immunology
applauds your efforts to address the need to assist schools
with the policies and information needed to improve the
management of children with food allergy and avoid life-
threatening reactions. We are pleased to endorse your
legislation.
Sincerely,
Hugh A. Sampson,
President.

____________________