[Pages S1003-S1008]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. HARKIN (for himself, Mr. Murphy, and Ms. Ayotte):
S. 2036. A bill to protect all school children against harmful and
life-threatening seclusion and restraint practices; to the Committee on
Health, Education, Labor, and Pensions.
Mr. HARKIN. Mr. President, I come to the floor today to introduce a
bill to support teachers, paraprofessionals and especially students,
students with challenging behaviors.
Last week I released a report titled ``Dangerous Use of Seclusion and
Restraints in Schools Remains Widespread and Difficult To Remedy: Ten
Case Studies.'' This report is the product of a 6-month investigation
by my HELP Committee staff
The report highlights the continued use of seclusion and restraints
in schools, the lack of information families have about these
practices, and the inability, in many cases, of families to stop the
use of them on their children.
We found that in many cases, families may not know their children are
being secluded and restrained. In some cases children are being
secluded and restrained for months at a time, multiple times a day,
sometimes for many hours, all without the knowledge of their families.
We also found that families do not have the tools to stop these
practices. Provisions of some of our education laws, such as the
Individuals with Disabilities Education Act, prohibit families from
seeking redress and relief from the use of seclusion and restraints
with their children unless they exhaust their due process options,
which can take months or even years. This often leaves families with no
choice but to remove their children from school in order to protect
them.
Finally, the report found it is almost impossible for families to
gather the information they need to prove harm and to stop the use of
seclusion and restraints. The lack of access to information causes
families to give up on their schools and there are many cases where
families move to a new city or even out of state.
These events are not isolated incidents, as some claim. In March
2011, the U.S. Department of Education published the ``Civil Rights
Data Collection Report'' that showed there were over 66,000 occurrences
of seclusion and restraints during the 2009-2010 school year. In other
words, there were 66,000 times when children were put at risk of
injury, psychological trauma and death.
These incidents occur everywhere, even in my own state of Iowa. Last
year, in a public residential school, at least three young women were
secluded for up to 23 hours a day--in one case, for as long as nine
months. If it were not for the good work of my state's Protection and
Advocacy agency, Disability Rights Iowa, that practice might have
continued indefinitely.
These practices aren't just ineffective, they can cause harm. Take
for example 8-year-old Isabel Loeffler, who

[[Page S1004]]

was subjected to restraint and seclusion when she was living in Iowa.
Isabel was locked in a seclusion room for up to three hours at a time
on over 100 different occasions. She was held from behind and forced to
draw with crayons, sometimes with four staff members holding her. When
Isabel failed a task, she was secluded or restrained. The use of these
practices made her behaviors worse, not better, so her parents withdrew
her from school.
Injuries, both physical and psychological, are horrible enough, but
at times the use of seclusion and restraints results in death. Jonathan
King was secluded in an 8-by-8-foot concrete room in his Georgia school
from the time he was a kindergartener. During one school year Jonathan
was placed in a seclusion room, unobserved, 19 times over the course of
29 days for over an hour and a half.
His parents did not know this was happening to him.
On the day he died, his teacher had given him a rope to hold up his
pants before she secluded him. Jonathan, who hated wearing a belt, had
threatened to kill himself before. While he was in seclusion that day
he hung himself with that rope. Jonathan was just 13-years-old.
It is time to put a stop to these abuses. We need make sure schools
have access to the practices to serve our children well. The data show
that too many teachers do not have the tools they need to help children
with challenging behaviors. Too many parents do not know how their
children are being treated at school. And too many children are being
mentally and physically scarred because of the use of these harmful
practices and the lack of knowledge about positive alternatives.
So I have come to the floor, today, to urge my colleagues to join
with me in stopping these unconscionable practices. I come to ask that
we work to provide teachers and administrators with the knowledge and
skills they need to teach children in safe, supportive environments and
to stop these violations of basic human rights. It is time to stop the
systematic use of restraint and seclusion in our schools.
In the United States, we have regulations to protect people in
hospitals, in nursing homes, and in psychological facilities from
restraint and seclusion. But not in our schools. The last frontier for
prohibiting seclusion and allowing restraint only in emergency
situations is our classrooms.
This is why, today, I am introducing the Keeping All Students Safe
Act. This bill prohibits the use of seclusion as well as mechanical and
chemical restraints in schools. Period. Complete prohibition of these
practices that have no educational or therapeutic benefits for
children.
My bill also places strict limits on when, how, and by whom physical
restraints may be used. Physical restraints could only be used in
emergency situations. Not for so-called treatment. Not as discipline.
Not as negative reinforcement. For emergencies only.
My bill would also create greater transparency so parents will know
when an emergency situation happens and when a restraint has been used.
It requires that schools meet with parents to explain the emergency and
to plan for how to avoid emergencies in the future.
In addition, the bill allows families to file a civil action even if
they have not exhausted their due process rights under IDEA. This will
give families more power to stop the use of seclusion and restraints
with their children.
There has been a lot of debate on whether it is right to implement a
complete ban on seclusion in schools. I answer with an unequivocal yes.
Putting a child in a locked room without supervision is absolutely
wrong. Because when children are locked up, they frequently hurt
themselves in frustration. Sometimes they hit their bodies against the
wall until they are bruised and bloodied. Sometimes they vomit.
Sometimes, as in the case of Jonathan King, they die.
Something is seriously wrong when a child suffers post-traumatic
stress disorder after attending school. To lock a child up with no
supervision is dangerous and, in many instances, can amount to acute
psychological torture.
Proponents of the use of seclusion and restraints call them
``effective practices'' or ``useful techniques.'' But they are not. A
child does not learn how to hold herself still, to listen more
attentively, or to do her work by having her teacher lock her up, strap
her down, or sit on her. Using euphemisms and politically correct terms
to describe these practices does not disguise their barbarity and
harmfulness. By no stretch of the imagination can sitting on a child be
about educating.
There are alternatives. We know that school-wide, preventive
practices can reduce and eliminate the use of seclusion and restraints.
Ten years ago, at the Centennial School in Lehigh, PA, a school that
serves children with the most challenging behaviors, the use of
restraints was pervasive; over 1,000 occurrences per school year. Now,
through the leadership of Dr. Michael George and the systematic use of
preventive strategies, restraints are used less than 5 times a year and
only in the most severe of emergency situations, only by trained
personnel, and never as punishment or behavior management.
The Keeping All Students Safe Act will make positive behavioral
interventions more widely available for educators. It will provide
supports to schools to improve the school climate and culture through
evidence-based practices and data-driven decision-making. The bill
calls for better data collection on the use of seclusion and restraints
in order to document their occurrence and efforts to eliminate them.
The bill calls for mandatory reporting so that parents will know why,
when, and how physical restraints are used on their children.
We know that teachers want to teach and to keep all their students
safe. Let us give them the skills and knowledge to prevent challenging
behaviors, and when they occur, to respond to them in the most
effective ways possible.
If Isabel's teachers had the support, knowledge and training that the
Keeping All Students Safe Act will make available, they could have
identified the interventions she needed to be successful. They could
have known what reinforcements worked for her. And they could have
known what triggers would make her behavior worse. Instead of locking
her in a closet, where she wet herself and hit herself in the head,
Isabel's teachers could have fundamentally improved her educational
experience, helping her to reach her potential.
All children have the right to be safe. Parents entrust schools to
protect their children and help them to flourish. Let us make good on
that trust by prohibiting seclusion and making the use of restraint so
uncommon that it is only used in emergency situations. I urge my
colleagues to join with me to protect all students, and to ensure that
all educators have the tools they need to keep all of students safe.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 2036

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 ``Keeping All Students Safe
Act''.

SEC. 2. DEFINITIONS.

In this Act:
(1) Applicable program.--The term ``applicable program''
has the meaning given the term in section 400(c)(1) of the
General Education Provisions Act (20 U.S.C. 1221(c)(1)).
(2) Chemical restraint.--The term ``chemical restraint''
means a drug or medication used on a student to control
behavior or restrict freedom of movement that is not--
(A) prescribed by a licensed physician, or other qualified
health professional acting under the scope of the
professional's authority under State law, for the standard
treatment of a student's medical or psychiatric condition;
and
(B) administered as prescribed by the licensed physician or
other qualified health professional acting under the scope of
the professional's authority under State law.
(3) ESEA definitions.--The terms--
(A) ``Department'', ``educational service agency'',
``elementary school'', ``local educational agency'',
``parent'', ``secondary school'', ``State'', and ``State
educational agency'' have the meanings given such terms in
section 9101 of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 7801); and
(B) ``school resource officer'' and ``school personnel''
have the meanings given such terms in section 4151 of such
Act (20 U.S.C. 7161).
(4) Federal financial assistance.--The term ``Federal
financial assistance'' means

[[Page S1005]]

any grant, loan, contract (other than a procurement contract
or a contract of insurance or guaranty), or any other
arrangement by which the Department provides or otherwise
makes available assistance in the form of--
(A) funds;
(B) services of Federal personnel; or
(C) real and personal property or any interest in or use of
such property, including--
(i) transfers or leases of such property for less than fair
market value or for reduced consideration; and
(ii) proceeds from a subsequent transfer or lease of such
property if the Federal share of its fair market value is not
returned to the Federal Government.
(5) Free appropriate public education.--For those students
eligible for special education and related services under the
Individuals with Disabilities Education Act (20 U.S.C. 1400
et seq.), the term ``free appropriate public education'' has
the meaning given the term in section 602 of such Act (20
U.S.C. 1401).
(6) Mechanical restraint.--The term ``mechanical
restraint''--
(A) has the meaning given the term in section 595(d)(1) of
the Public Health Service Act (42 U.S.C. 290jj(d)(1)), except
that the meaning shall be applied by substituting
``student's'' for ``resident's''; and
(B) does not mean devices used by trained school personnel,
or used by a student, for the specific and approved
therapeutic or safety purposes for which such devices were
designed and, if applicable, prescribed, including--
(i) restraints for medical immobilization;
(ii) adaptive devices or mechanical supports used to allow
greater freedom of mobility than would be possible without
the use of such devices or mechanical supports; or
(iii) vehicle safety restraints when used as intended
during the transport of a student in a moving vehicle.
(7) Physical escort.--The term ``physical escort'' means
the temporary touching or holding of the hand, wrist, arm,
shoulder, waist, hip, or back for the purpose of inducing a
student to move to a safe location.
(8) Physical restraint.--The term ``physical restraint''
means a personal restriction that immobilizes or reduces the
ability of an individual to move the individual's arms, legs,
body, or head freely. Such term does not include a physical
escort, mechanical restraint, or chemical restraint.
(9) Positive behavioral interventions and supports.--The
term ``positive behavioral interventions and supports''
(A) means a school-wide systematic approach to embed
evidence-based practices and data-driven decisionmaking to
improve school climate and culture in order to achieve
improved academic and social outcomes, and increase learning
for all students, including those with the most complex and
intensive behavioral needs; and
(B) encompasses a range of systemic and individualized
positive strategies to reinforce desired behaviors, diminish
reoccurrence of challenging behaviors, and teach appropriate
behaviors to students.
(10) Protection and advocacy system.--The term ``protection
and advocacy system'' means a protection and advocacy system
established under subtitle C of title I of the Developmental
Disabilities Assistance and Bill of Rights Act of 2000 (42
U.S.C. 15041 et seq.).
(11) Seclusion.--The term ``seclusion''--
(A) means the isolation of a student in a room, enclosure,
or space that is--
(i) locked; or
(ii) unlocked and the student is prevented from leaving;
and
(B) does not include a time out.
(12) Secretary.--The term ``Secretary'' means the Secretary
of Education, and, where appropriate, the Secretary of the
Interior and the Secretary of Defense.
(13) State-approved crisis intervention training program.--
The term ``State-approved crisis intervention training
program'' means a training program proposed by a local
educational agency and approved by a State that, at a
minimum, provides training in evidence-based practices shown
to be effective--
(A) in the prevention of the use of physical restraint;
(B) in keeping both school personnel and students safe in
imposing physical restraint in a manner consistent with this
Act;
(C) in the use of data-based decisionmaking and evidence-
based positive behavioral interventions and supports, safe
physical escort, conflict prevention, behavioral antecedents,
functional behavioral assessments, de-escalation of
challenging behaviors, and conflict management;
(D) in first aid, including the signs of medical distress,
and cardiopulmonary resuscitation; and
(E) certification for school personnel in the practices and
skills described in subparagraphs (A) through (D), which
shall be required to be renewed on a periodic basis.
(14) Student.--The term ``student'' means a student who--
(A) is enrolled in a public school;
(B) is enrolled in a private school and is receiving a free
appropriate public education at the school under subparagraph
(B) or (C) of section 612(a)(10) of the Individuals with
Disabilities Education Act (20 U.S.C. 1412(a)(10)(B), (C));
(C) is enrolled in a Head Start or Early Head Start program
supported under the Head Start Act (42 U.S.C. 9831); or
(D) receives services under section 619 or part C of the
Individuals with Disabilities Education Act (20 U.S.C. 1419,
1431 et seq.).
(15) Time out.--The term ``time out'' means a behavior
management technique that may involve the separation of the
student from the group, in a non-locked setting, for the
purpose of calming. Time out is not seclusion.

SEC. 3. PURPOSE.

The purposes of this Act are--
(1) to promote the development of effective intervention
and prevention practices that do not use restraints and
seclusion;
(2) to protect all students from physical or mental abuse,
aversive behavioral interventions that compromise health and
safety, and any restraint imposed for purposes of coercion,
discipline or convenience, or as a substitute for appropriate
educational or positive behavioral interventions and
supports;
(3) to ensure that staff are safe from the harm that can
occur from inexpertly using restraints; and
(4) to ensure the safety of all students and school
personnel and promote positive school culture and climate.

SEC. 4. MINIMUM STANDARDS; RULE OF CONSTRUCTION.

Each State and local educational agency receiving Federal
financial assistance shall have in place policies that are
consistent with the following:
(1) Prohibition of certain action.--School personnel,
contractors, and resource officers are prohibited from
imposing on any student--
(A) seclusion;
(B) mechanical restraint;
(C) chemical restraint;
(D) aversive behavioral interventions that compromise
health and safety;
(E) physical restraint that is life-threatening, including
physical restraint that restricts breathing; and
(F) physical restraint if contraindicated based on the
student's disability, health care needs, or medical or
psychiatric condition, as documented in a health care
directive or medical management plan, a behavior intervention
plan, an individualized education program or an
individualized family service plan (as defined in section 602
of the Individuals with Disabilities Education Act (20 U.S.C.
1401)), or plan developed pursuant to section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794), or other relevant
record made available to the State or local educational
agency.
(2) Physical restraint.--
(A) In general.--Physical restraint may only be implemented
if--
(i) the student's behavior poses immediate danger of
serious physical harm to self or others;
(ii) the physical restraint does not interfere with the
student's ability to communicate in the student's primary
language or mode of communication; and
(iii) less restrictive interventions have been ineffective
in stopping the immediate danger of serious physical harm to
the student or others, except in a case of a rare and clearly
unavoidable emergency circumstance posing immediate danger of
serious physical harm.
(B) Least amount of force necessary.--When implementing a
physical restraint, staff shall use only the amount of force
necessary to protect the student or others from the
threatened injury.
(C) End of physical restraint.--The use of physical
restraint shall end when--
(i) a medical condition occurs putting the student at risk
of harm;
(ii) the student's behavior no longer poses immediate
danger of serious physical harm to the student or others; or
(iii) less restrictive interventions would be effective in
stopping such immediate danger of serious physical harm.
(D) Qualifications of individuals engaging in physical
restraint.--School personnel imposing physical restraint in
accordance with this subsection shall--
(i) be trained and certified by a State-approved crisis
intervention training program, except in the case of rare and
clearly unavoidable emergency circumstances when school
personnel trained and certified are not immediately available
due to the unforeseeable nature of the emergency
circumstance;
(ii) engage in continuous face-to-face monitoring of the
student; and
(iii) be trained in State and school policies and
procedures regarding restraint and seclusion.
(E) Prohibition on use of physical restraint as planned
intervention.--
(i) In general.--Except as provided in clause (ii), the use
of physical restraints as a planned intervention shall not be
written into a student's education plan, individual safety
plan, plan developed pursuant to section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794), individualized
education program or individualized family service plan (as
defined in section 602 of the Individuals with Disabilities
Education Act (20 U.S.C. 1401)), or any other planning
document for an individual student.
(ii) Exception.--The use of physical restraints as a
planned intervention may be written into a student's
individualized education program, individual safety plan, or
plan developed pursuant to section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. 794) if State law allows for the use
of physical restraint as part of such program or plan, as
agreed upon by school personnel, the family

[[Page S1006]]

of the student, and the individualized education program
committee if such individuals--

(I) have considered less restrictive means to address
behavioral concerns that would meet the emergency standard
described in subparagraph (A) and, when using such physical
restraints in an emergency, meet the conditions described in
subparagraphs (B), (C), and (D); and
(II) have conducted a researched based, individualized
functional behavioral analysis and implemented a
corresponding positive intervention plan based on such
functional behavioral analysis that--

(aa) addresses preventative measures used to reduce or
prevent emergencies; and
(bb) is written into the student's individualized education
program, individual safety plan, or plan developed pursuant
to section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794).
(3) Other policies.--
(A) In general.--The State or local educational agency, and
each school and educational program served by the State or
local educational agency shall--
(i) establish policies and procedures that ensure school
personnel and parents, including private school personnel and
parents, are aware of the State, local educational agency,
and school's policies and procedures regarding seclusion and
restraint;
(ii) establish policies and procedures to keep all
students, including students with the most complex and
intensive behavioral needs, and school personnel safe;
(iii) establish policies and procedures for planning for
the appropriate use of restraint in crisis situations in
accordance with this Act by a team of professionals trained
in accordance with a State-approved crisis intervention
training program; and
(iv) establish policies and procedures to be followed after
each incident involving the imposition of physical restraint
upon a student, including--

(I) procedures to provide to the parent of the student,
with respect to each such incident--

(aa) a verbal or electronic communication on the same day
as each such incident; and
(bb) within 24 hours of each such incident, written
notification; and

(II) after the imposition of physical restraint upon a
student, procedures to ensure that--

(aa) the person who imposed the restraint, the immediate
adult witnesses, a representative of the administration, a
school mental health profession, and at least 1 family member
of the student participate in a debriefing session; and
(bb) the student who was restrained is given the
opportunity to discuss the student's perspective about the
event with a trusted adult who will communicate to the
debriefing session group.
(B) Debriefing session.--
(i) In general.--

(I) Timing.--The debriefing session described in
subparagraph (A)(iv)(II) shall occur as soon as practicable,
but not later than 5 school days following the imposition of
physical restraint unless it is delayed by written mutual
agreement of the parent and school.
(II) Observations by school personnel.--Each adult witness
in the proximity of the student immediately before and during
the time of the of the physical restraint but not directly
involved shall submit the witness's observations in writing
for the debriefing session.
(III) Parental legal rights.--Parents shall retain their
full legal rights for children under the age of majority
concerning participation in the debriefing or other matters.

(ii) Content of session.--The debriefing session described
in subparagraph (A)(iv)(II) shall include--

(I) identification of antecedents to the physical
restraint;
(II) consideration of relevant information in the student's
records, and such information from teachers, other
professionals, the parent, and student;
(III) planning to prevent and reduce reoccurrence of the
use of physical restraint, including consideration of the
results of any functional behavioral assessments, whether
positive behavior plans were implemented with fidelity,
recommendations of appropriate positive behavioral
interventions and supports to assist personnel responsible
for the student's educational plan, the individualized
education program for the student, if applicable, and plans
providing for reasonable accommodations under section 504 of
the Rehabilitation Act of 1973 (29 U.S.C. 794);
(IV) a plan to have a functional behavioral assessment
conducted, reviewed, or revised by qualified professionals,
the parent, and the student; and
(V) for any student not identified as eligible to receive
accommodations under section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 794) or services under the Individuals with
Disabilities Education Act (20 U.S.C. 1400 et seq.), evidence
of such a referral or documentation of the basis for
declining to refer the student.

(iii) Communication by the student.--When a student attends
a debriefing session described in subparagraph (A)(iv)(II),
information communicated by the student may not be used
against the student in any disciplinary, criminal, or civil
investigation or proceeding.
(4) Notification in writing on death or bodily injury.--In
a case in which bodily injury or death of a student occurs in
conjunction with the use of physical restraint or any
intervention used to control behavior, there are procedures
to notify, in writing, within 24 hours after such injury or
death occurs--
(A) the State educational agency and local educational
agency;
(B) local law enforcement; and
(C) a protection and advocacy system, in the case of a
student who is eligible for services from the protection and
advocacy system.
(5) Prohibition against retaliation.--The State or local
educational agency, each school and educational program
served by the State or local educational agency, and school
personnel of such school or program shall not retaliate
against any person for having--
(A) reported a violation of this section or Federal or
State regulations or policies promulgated to carry out this
section; or
(B) provided information regarding a violation of this
section or Federal or State regulations or policies
promulgated to carry out this section.

SEC. 5. INTERACTIONS; RULES OF CONSTRUCTION.

(a) Rules of Construction.--
(1) Rights and remedies of students and parents.--Nothing
in this Act shall be construed to restrict or limit, or allow
the Secretary to restrict or limit, any other rights or
remedies otherwise available to students or parents under
Federal or State law (including regulations) or to restrict
or limit stronger restrictions on the use of restraint,
seclusion, or aversives in Federal or State law (including
regulations) or in State policies.
(2) Restrictions on secretarial prohibitions.--Nothing in
this Act shall be construed to authorize the Secretary to
promulgate regulations prohibiting the use of--
(A) time outs; or
(B) devices implemented by trained school personnel, or
utilized by a student, for the specific and approved
therapeutic or safety purposes for which such devices were
designed and, if applicable, prescribed, including--
(i) restraints for medical immobilization;
(ii) adaptive devices or mechanical supports used to
achieve proper body position, balance, or alignment to allow
greater freedom of mobility than would be possible without
the use of such devices or mechanical supports; or
(iii) vehicle safety restraints when used as intended
during the transport of a students in a moving vehicle.
(b) Denial of a Free Appropriate Public Education.--Failure
to meet the minimum standards of this Act as applied to an
individual child eligible for accommodations developed
pursuant to section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794) or for education or related services under the
Individuals with Disabilities Education Act (20 U.S.C. 1400
et seq.) shall constitute a denial of a free appropriate
public education.
(c) Exhaustion of Due Process.--
(1) In general.--A student may file a civil action under
the Constitution, the Americans with Disabilities Act of 1990
(42 U.S.C. 12101 et seq.), title V of the Rehabilitation Act
of 1973 (29 U.S.C. 791 et seq.), or other applicable Federal
law in the case of the use of seclusion or restraint in
violation of this Act seeking relief from the use of
seclusion or restraint with respect of such student.
(2) Nonapplicability.--Section 615(l) of the Individuals
with Disabilities Education Act (20 U.S.C. 1415(l)) shall not
apply to an action filed pursuant to paragraph (1).

SEC. 6. REPORT REQUIREMENTS.

(a) In General.--Each State educational agency shall (in
compliance with the requirements of section 444 of the
General Education Provisions Act (commonly known as the
``Family Educational Rights and Privacy Act of 1974'') (20
U.S.C. 1232g)) prepare and submit to the Secretary, and make
available to the public, a report with respect to each local
educational agency, and each school not under the
jurisdiction of a local educational agency, located in the
same State as such State educational agency that includes the
following information:
(1) The total number of incidents in which physical
restraint was imposed upon a student in the preceding full
academic year.
(2) The information described in paragraph (1) shall be
disaggregated--
(A) by the total number of incidents in which physical
restraint was imposed upon a student--
(i) that resulted in injury to students or school
personnel, or both;
(ii) that resulted in death; and
(iii) in which the school personnel imposing physical
restraint were not trained and certified as described in
section 4(2)(D)(i); and
(B) by the demographic characteristics of all students upon
whom physical restraint was imposed, including--
(i) the subcategories identified in section
1111(h)(1)(C)(i) of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 6311(h)(1)(C)(i));
(ii) age; and
(iii) disability category.
(b) Unduplicated Count; Exception.--The disaggregation
required under subsection (a) shall--
(1) be carried out in a manner to ensure an unduplicated
count of the total number of incidents in the preceding full
academic year

[[Page S1007]]

in which physical restraint was imposed upon a student; and
(2) not be required in a case in which the number of
students in a category would reveal personally identifiable
information about an individual student.

SEC. 7. GRANT AUTHORITY.

(a) In General.--From the amount appropriated under section
10, the Secretary may award grants to State educational
agencies to assist in--
(1) establishing, implementing, and enforcing the policies
and procedures to meet the minimum standards described in
this Act;
(2) improving State and local capacity to collect and
analyze data related to physical restraint; and
(3) improving school climate and culture by implementing
school-wide positive behavioral interventions and supports.
(b) Duration of Grant.--A grant under this section shall be
awarded to a State educational agency for a 3-year period.
(c) Application.--Each State educational agency desiring a
grant under this section shall submit an application to the
Secretary at such time, in such manner, and accompanied by
such information as the Secretary may require, including
information on how the State educational agency will target
resources to schools and local educational agencies in need
of assistance related to preventing and reducing physical
restraint.
(d) Authority to Make Subgrants.--
(1) In general.--A State educational agency receiving a
grant under this section may use such grant funds to award
subgrants, on a competitive basis, to local educational
agencies.
(2) Application.--A local educational agency desiring to
receive a subgrant under this section shall submit an
application to the applicable State educational agency at
such time, in such manner, and containing such information as
the State educational agency may require.
(e) Private School Participation.--
(1) In general.--A State educational agency receiving grant
funds under this section shall, after timely and meaningful
consultation with appropriate private school officials,
ensure that private school personnel can participate, on an
equitable basis, in activities supported by grant or subgrant
funds.
(2) Public control of funds.--The control of funds provided
under this section, and title to materials, equipment, and
property with such funds, shall be in a public agency and a
public agency shall administer such funds, materials,
equipment, and property.
(f) Required Activities.--A State educational agency
receiving a grant, or a local educational agency receiving a
subgrant, under this section shall use such grant or subgrant
funds to carry out the following:
(1) Researching, developing, implementing, and evaluating
evidence-based strategies, policies, and procedures to reduce
and prevent physical restraint in schools, consistent with
the minimum standards described in this Act.
(2) Providing professional development, training, and
certification for school personnel to meet such standards.
(g) Additional Authorized Activities.--In addition to the
required activities described in subsection (f), a State
educational agency receiving a grant, or a local educational
agency receiving a subgrant, under this section may use such
grant or subgrant funds for 1 or more of the following:
(1) Developing and implementing a high-quality professional
development and training program to implement evidence-based
systematic approaches to school-wide positive behavioral
interventions and supports, including improving coaching,
facilitation, and training capacity for administrators,
teachers, specialized instructional support personnel, and
other staff.
(2) Providing technical assistance to develop and implement
evidence-based systematic approaches to school-wide positive
behavioral interventions and supports, including technical
assistance for data-driven decisionmaking related to positive
behavioral interventions and supports in the classroom.
(3) Researching, evaluating, and disseminating high-quality
evidence-based programs and activities that implement school-
wide positive behavioral interventions and supports with
fidelity.
(4) Supporting other local positive behavioral
interventions and supports implementation activities
consistent with this subsection.
(h) Evaluation and Report.--Each State educational agency
receiving a grant under this section shall, at the end of the
3-year grant period for such grant--
(1) evaluate the State's progress toward the prevention and
reduction of physical restraint in the schools located in the
State, consistent with the minimum standards; and
(2) submit to the Secretary a report on such progress.

SEC. 8. ENFORCEMENT.

(a) Use of Remedies.--If a State educational agency fails
to comply with the requirements under this Act, the Secretary
shall--
(1) withhold, in whole or in part, further payments under
an applicable program in accordance with section 455 of the
General Education Provisions Act (20 U.S.C. 1234d);
(2) require a State or local educational agency to submit,
and implement, within 1 year of such failure to comply, a
corrective plan of action, which may include redirection of
funds received under an applicable program;
(3) issue a complaint to compel compliance of the State or
local educational agency through a cease and desist order, in
the same manner the Secretary is authorized to take such
action under section 456 of the General Education Provisions
Act (20 U.S.C. 1234e); or
(4) refer the State to the Department of Justice or
Department of Education Office of Civil Rights for an
investigation.
(b) Cessation of Withholding of Funds.--Whenever the
Secretary determines (whether by certification or other
appropriate evidence) that a State or local educational
agency that is subject to the withholding of payments under
subsection (a)(1) has cured the failure providing the basis
for the withholding of payments, the Secretary shall cease
the withholding of payments with respect to the State
educational agency under such subsection.

SEC. 9. APPLICABILITY.

(a) Private Schools.--Nothing in this Act shall be
construed to affect any private school that does not receive,
or does not serve students who receive, support in any form
from any program supported, in whole or in part, with funds
provided by the Department of Education.
(b) Home Schools.--Nothing in this Act shall be construed
to--
(1) affect a home school, whether or not a home school is
treated as a private school or home school under State law;
or
(2) consider a parent who is schooling a child at home as
school personnel.

SEC. 10. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated such sums as may be
necessary to carry out this Act for fiscal year 2015 and each
of the 4 succeeding fiscal years.
______

By Mr. ROBERTS (for himself, Mr. Tester, Mr. Inhofe, Mr. Durbin,
Mr. Enzi, Ms. Baldwin, Mr. Moran, Mr. Franken, Mr. Grassley,
Mr. Barrasso, Mrs. Fischer, Ms. Collins, Mr. Johanns, Ms.
Klobuchar, Mr. Hoeven, and Mr. Kirk):
S. 2037. A bill to amend title XVIII of the Social Security Act to
remove the 96-hour physician certification requirement for inpatient
critical access hospital services; to the Committee on Finance.
Mr. ROBERTS. Mr. President, I started my public service career
fighting for rural health. In a State that has many rural hospitals,
the rural health care delivery system is especially important to
Kansas. One of my first speeches was to rural hospitals. Since that
time, I have been beating the drum, so to speak, for our rural areas
about how important it is to focus on rural health.
I have always said that people in rural towns deserve the same access
to care and level of treatment as their urban counterparts. I have made
it my mission to protect our rural health system and patient access to
the best possible care. I am honored to serve as the cochair of the
Senate Rural Health Caucus where I work with my colleagues to fight for
our rural health care system every day.
Unfortunately, these days it feels as though rural health care, and
all of those involved in it, face an uphill battle. Over the past few
years, the rural health system has continued to face even more
challenges.
Funding for rural health care programs has been targeted again and
again. This year the Senate Finance Committee held a markup with
regular order where we considered some of the rural extenders that are
absolutely vital to our rural communities. Regrettably, we have more
work to do. We have to convince and educate our colleagues, this
administration, and everyone else about the importance of rural health
care. We have been successful in protecting some of the ideas I have
championed, especially on the rural extenders side, but we have more
work to do. As this process moves forward, we need to ensure we follow
regular order on the floor of the Senate and for any pay-fors for the
doc fix package. While I was pleased with some of the additions that
addressed rural health care in the package passed out of committee, I
have concerns that these issues were not included or addressed in the
most recent package introduced in the House and in the Senate.
In addition to ensuring rural health is part of any moving
legislation, I wish to ensure it is a package that is offset and paid
for, and this has to be done before I can support it. But the bottom
line is that we, the Senate, need to return to regular order and ensure
that practice does continue.
As will many of my colleagues in the Senate, I will continue to
vigorously fight to rein in Federal spending and to

[[Page S1008]]

reduce the deficit. In order to address this fiscal crisis, I think
Congress must enact basic structural changes to entitlement programs
that will strengthen and preserve these programs for future generations
while protecting current participants. Without real tangible reform and
cuts in Federal spending, we will bankrupt the country. At the same
time, we need to ensure that any of those policies we put in place do
not result in a disproportionate impact on our rural health care system
or restrict patients' access to the care they need. As I started saying
today, this is going to be an uphill battle. But I, for one, am ready
to lead the charge.
As a member of both the Finance and HELP Committees, as well as the
cochair of the Rural Health Caucus, I have tried to be a leader in the
discussion about the need to address the entire health system.
I have made it a point that within our health care system
discussions, we need to talk about the differences between our rural
areas and the care and treatment provided in those rural settings and
their urban counterparts. We need to address common misconceptions
about funding challenges in rural communities before taking a Lizzie
Borden ax to the funding streams.
Throughout my career in public office, I have made it a point to
always fight for Kansas and rural health care providers. This has been
one of my top priorities in Congress. I understand the important role
of rural health in America and continue to advocate for policies that
protect and preserve these benefits.
Most recently, the Centers for Medicare and Medicaid Services--CMS--
have made some changes that will be particularly harmful to rural
health. More specifically, their changes will force doctors into a
guessing game about their patients. The condition of payment changes
CMS is making would require the physician, and no other level provider,
to not only predict at the time of admission to the critical access
hospital that the patient will require hospital care for more than two
midnights, but also that the patient can be cared for and discharged in
less than 96 hours. This is an extremely narrow CMS window for the
physician to make a determination about that patient's future needs--
extremely difficult, if not impossible. A physician may certify that
they expect the patient to be treated and discharged within 96 hours,
but, unfortunately, the patient's situation may change and they may
need to be kept longer. The physician's concern will be that they have
failed to meet the terms of their certification according to CMS. This
is likely to lead to premature discharges and readmissions, both of
which CMS has taken actions to minimize.
A CEO for one of our critical access hospitals in Council Grove, KS,
writes:

This new ``condition of payment'' rule causes potential
conflicts with what is best for the patient, causes issues
for the physician in having to predict outcomes at admission
in complex cases, and may cause increased expense for
medically unnecessary transfers to more costly care centers.

Today I am introducing the Critical Access Hospital Relief Act of
2014. My bipartisan legislation would remove the condition of payment
for critical access hospitals that requires a physician to certify that
each patient will be discharged or transferred in less than 96 hours.
This is another example of having to tell CMS, ``If it isn't broken,
then there is no need to fix it.'' We need to focus on ensuring rural
patients have access to their health system, not coming up with
bureaucratic ways to make it harder for patients in rural areas to get
quality care from their doctors.
I urge my colleagues to cosponsor the Critical Access Hospital Relief
Act of 2014.

____________________