Keeping All Students Safe Act

II 116TH CONGRESS 2D SESSION S. 4924 To prohibit and prevent seclusion, mechanical restraint, chemical restraint, and dangerous restraints that restrict breathing, and to prevent and reduce the use of physical restraint in schools, and for other purposes. IN THE SENATE OF THE UNITED STATES NOVEMBER 30, 2020 Mr. MURPHY (for himself, Mrs. MURRAY, Mr. CASEY, Mr. KAINE, Ms. HAS- SAN, Ms. BALDWIN, Mr. VAN HOLLEN, Ms. DUCKWORTH, Mr. BOOKER, Mr. BROWN, Mr. BLUMENTHAL, Mr. WYDEN, Ms. WARREN, Mr. SAND- ERS, Mr. DURBIN, and Mrs. GILLIBRAND) introduced the following bill; which was read twice and referred to the Committee on Health, Edu- cation, Labor, and Pensions A BILL To prohibit and prevent seclusion, mechanical restraint, chemical restraint, and dangerous restraints that restrict breathing, and to prevent and reduce the use of physical restraint in schools, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Keeping All Students Safe Act’’. 5 VerDate Sep 11 2014 01:06 Dec 03, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4924.IS S4924 kjohnson on DSK79L0C42PROD with BILLS 2 •S 4924 IS (b) TABLE OF CONTENTS.—The table of contents for 1 this Act is as follows: 2 Sec. 1. Short title; table of contents. Sec. 2. Definitions. TITLE I—PROHIBITIONS ON RESTRAINT AND SECLUSION AND ADDITIONAL REQUIREMENTS Sec. 101. Prohibition, additional requirements. TITLE II—STATE PLAN, REPORTING REQUIREMENTS, AND GRANTS FOR STATE EDUCATIONAL AGENCIES Sec. 201. Definitions of school. Sec. 202. State plan. Sec. 203. Grants for State educational agencies. TITLE III—GENERAL PROVISIONS Sec. 301. National assessment. Sec. 302. Protection and advocacy systems. Sec. 303. Schools operated or funded by the Department of the Interior or the Department of Defense. Sec. 304. Rule of construction. Sec. 305. Applicability to private schools and home schools. Sec. 306. Severability. Sec. 307. Authorization of appropriations. SEC. 2. DEFINITIONS. 3 In this Act: 4 (1) CHEMICAL RESTRAINT.—The term ‘‘chem- 5 ical restraint’’ means a drug or medication used on 6 a student to control behavior or restrict freedom of 7 movement that is not— 8 (A) prescribed by a licensed physician, or 9 other qualified health professional acting under 10 the scope of the professional’s authority under 11 State law, for the standard treatment of a stu- 12 dent’s medical or psychiatric condition; and 13 VerDate Sep 11 2014 20:43 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4924.IS S4924 kjohnson on DSK79L0C42PROD with BILLS 3 •S 4924 IS (B) administered as prescribed by the li- 1 censed physician or other qualified health pro- 2 fessional acting under the scope of the profes- 3 sional’s authority under State law. 4 (2) ESEA TERMS.—The terms ‘‘early childhood 5 education program’’, ‘‘educational service agency’’, 6 ‘‘elementary school’’, ‘‘local educational agency’’, 7 ‘‘other staff’’, ‘‘paraprofessional’’, ‘‘parent’’, ‘‘school 8 leader’’, ‘‘secondary school’’, ‘‘specialized instruc- 9 tional support personnel’’, ‘‘State’’, and ‘‘State edu- 10 cational agency’’ have the meanings given the terms 11 in section 8101 of the Elementary and Secondary 12 Education Act of 1965 (20 U.S.C. 7801). 13 (3) MECHANICAL RESTRAINT.—The term ‘‘me- 14 chanical restraint’’ means the use of devices as a 15 means of restricting a student’s freedom of move- 16 ment. 17 (4) PHYSICAL ESCORT.—The term ‘‘physical es- 18 cort’’ means the temporary touching or holding of 19 the hand, wrist, arm, shoulder, or back for the pur- 20 pose of inducing a student who is acting out to walk 21 to a safe location. 22 (5) PHYSICAL RESTRAINT.—The term ‘‘physical 23 restraint’’ means a personal restriction that immo- 24 bilizes or reduces the ability of an individual to move 25 VerDate Sep 11 2014 01:02 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4924.IS S4924 kjohnson on DSK79L0C42PROD with BILLS 4 •S 4924 IS the individual’s arms, legs, torso, or head freely, ex- 1 cept that such term does not include a physical es- 2 cort, mechanical restraint, or chemical restraint. 3 (6) POSITIVE BEHAVIORAL INTERVENTIONS 4 AND SUPPORTS.—The term ‘‘positive behavioral 5 interventions and supports’’— 6 (A) means a schoolwide, systematic ap- 7 proach that embeds evidence-based practices 8 and data-driven decision making to improve 9 school climate and culture in order to achieve 10 improved academic and social outcomes and in- 11 crease learning for all students (including stu- 12 dents with the most complex and intensive be- 13 havioral needs); and 14 (B) encompasses a range of systemic and 15 individualized positive strategies to teach and 16 reinforce school-expected behaviors, while dis- 17 couraging and diminishing undesirable behav- 18 iors. 19 (7) PROGRAM.—The term ‘‘program’’ means— 20 (A) all of the operations of a local edu- 21 cational agency, system of vocational education, 22 or other school system; 23 (B) a program that serves children who re- 24 ceive services for which financial assistance is 25 VerDate Sep 11 2014 01:06 Dec 03, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4924.IS S4924 kjohnson on DSK79L0C42PROD with BILLS 5 •S 4924 IS provided in accordance with the Head Start Act 1 (42 U.S.C. 9831 et seq.); or 2 (C) an elementary school or secondary 3 school that is not a public school that enrolls a 4 student who receives special education and re- 5 lated services under the Individuals with Dis- 6 abilities Education Act (20 U.S.C. 1400 et 7 seq.). 8 (8) PROGRAM PERSONNEL.— 9 (A) IN GENERAL.—Subject to subpara- 10 graph (B), the term ‘‘program personnel’’ 11 means any agent of a program, including an in- 12 dividual who is employed by a program, or who 13 performs services for a program on a contrac- 14 tual basis, including— 15 (i) school leaders; 16 (ii) teachers; 17 (iii) specialized instructional support 18 personnel; 19 (iv) paraprofessionals; or 20 (v) other staff. 21 (B) EXCLUSION.—Notwithstanding sub- 22 paragraph (A), program personnel shall not in- 23 clude a school resource officer or a school secu- 24 rity guard. 25 VerDate Sep 11 2014 01:06 Dec 03, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4924.IS S4924 kjohnson on DSK79L0C42PROD with BILLS 6 •S 4924 IS (9) PROTECTION AND ADVOCACY SYSTEM.—The 1 term ‘‘protection and advocacy system’’ means a 2 protection and advocacy system established under 3 section 143 of the Developmental Disabilities Assist- 4 ance and Bill of Rights Act of 2000 (42 U.S.C. 5 15043). 6 (10) SCHOOL RESOURCE OFFICER.—The term 7 ‘‘school resource officer’’ means a sworn law enforce- 8 ment officer who is— 9 (A) assigned by the employing police de- 10 partment to a program; 11 (B) contracting with a program; or 12 (C) employed by a program. 13 (11) SCHOOL SECURITY GUARD.—The term 14 ‘‘school security guard’’ means an individual who is 15 not a sworn law enforcement officer and who is re- 16 sponsible for addressing one or more of the following 17 safety and crime prevention activities in and around 18 a program: 19 (A) Assisting program personnel in safety 20 incidents. 21 (B) Educating students in crime and ille- 22 gal drug use prevention and safety. 23 (C) Developing or expanding community 24 justice initiatives for students. 25 VerDate Sep 11 2014 01:06 Dec 03, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4924.IS S4924 kjohnson on DSK79L0C42PROD with BILLS 7 •S 4924 IS (D) Training students in conflict resolution 1 and supporting restorative justice programs. 2 (E) Serving as a liaison between the pro- 3 gram and outside agencies, including other law 4 enforcement agencies. 5 (F) Screening students or visitors to the 6 program for prohibited items. 7 (12) SECLUSION.—The term ‘‘seclusion’’ means 8 the involuntary confinement of a student alone in a 9 room or area from which the student is physically 10 prevented from leaving, except that such term does 11 not include a time out. 12 (13) SECRETARY.—The term ‘‘Secretary’’ 13 means the Secretary of Education. 14 (14) SPECIAL EDUCATION SCHOOL.—The term 15 ‘‘special education school’’ means a school that fo- 16 cuses primarily on serving the needs of students 17 with disabilities under the Individuals with Disabil- 18 ities Education Act (20 U.S.C. 1400 et seq.) or sec- 19 tion 504 of the Rehabilitation Act of 1973 (29 20 U.S.C. 794). 21 (15) STATE-APPROVED CRISIS INTERVENTION 22 TRAINING PROGRAM.—The term ‘‘State-approved 23 crisis intervention training program’’ means a train- 24 VerDate Sep 11 2014 01:06 Dec 03, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4924.IS S4924 kjohnson on DSK79L0C42PROD with BILLS 8 •S 4924 IS ing program approved by a State and the Secretary 1 that, at a minimum, provides— 2 (A) training in evidence-based techniques 3 shown to be effective in the prevention of phys- 4 ical restraint; 5 (B) evidence-based skills training related 6 to positive behavioral interventions and sup- 7 ports, safe physical escort, conflict prevention, 8 understanding antecedents, deescalation, and 9 conflict management; 10 (C) training in evidence-based techniques 11 shown to be effective in keeping both school 12 personnel and students safe when imposing 13 physical restraint; 14 (D) training in first aid and 15 cardiopulmonary resuscitation; 16 (E) information describing State policies 17 and procedures to ensure compliance with sec- 18 tion 101; and 19 (F) certification for school personnel, 20 school resource officers, and school security 21 guards in the techniques and skills described in 22 subparagraphs (A) through (D), which shall be 23 required to be renewed on a periodic basis. 24 (16) STUDENT.—The term ‘‘student’’ means— 25 VerDate Sep 11 2014 01:06 Dec 03, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4924.IS S4924 kjohnson on DSK79L0C42PROD with BILLS 9 •S 4924 IS (A) for purposes of title I, a student en- 1 rolled in a program; and 2 (B) for purposes of title II, a student en- 3 rolled in an elementary school or secondary 4 school. 5 (17) TIME OUT.— 6 (A) IN GENERAL.—The term ‘‘time out’’ 7 means a behavior management technique that 8 may involve the separation of the student from 9 the group or classroom in a non-locked setting. 10 (B) CLARIFICATION.—The term ‘‘time 11 out’’ does not include— 12 (i) seclusion; or 13 (ii) a separation of the student de- 14 scribed in subparagraph (A) from which 15 such student is physically or otherwise pro- 16 hibited from leaving. 17 TITLE I—PROHIBITIONS ON RE- 18 STRAINT AND SECLUSION 19 AND ADDITIONAL REQUIRE- 20 MENTS 21 SEC. 101. PROHIBITION, ADDITIONAL REQUIREMENTS. 22 (a) PROHIBITION.—No student shall be subjected to 23 unlawful seclusion or restraint by program personnel, a 24 school resource officer, or a school security guard, while 25 VerDate Sep 11 2014 01:06 Dec 03, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4924.IS S4924 kjohnson on DSK79L0C42PROD with BILLS 10 •S 4924 IS attending any program that receives Federal financial as- 1 sistance. 2 (b) UNLAWFUL SECLUSION OR RESTRAINT DE- 3 FINED.— 4 (1) IN GENERAL.—In this section, the term 5 ‘‘unlawful seclusion or restraint’’ means— 6 (A) seclusion; 7 (B) mechanical restraint; 8 (C) chemical restraint; 9 (D) physical restraint or physical escort 10 that is life threatening, that restricts breathing, 11 or that restricts blood flow to the brain, includ- 12 ing prone and supine restraint; 13 (E) physical restraint that is contra- 14 indicated based on the student’s disability, 15 health care needs, or medical or psychiatric con- 16 dition, as documented in— 17 (i) a health care directive or medical 18 management plan; 19 (ii) a behavior intervention plan; 20 (iii) an individualized education pro- 21 gram or an individualized family service 22 plan (as defined in section 602 of the Indi- 23 viduals with Disabilities Education Act (20 24 U.S.C. 1401)); 25 VerDate Sep 11 2014 01:06 Dec 03, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4924.IS S4924 kjohnson on DSK79L0C42PROD with BILLS 11 •S 4924 IS (iv) a plan developed pursuant to sec- 1 tion 504 of the Rehabilitation Act of 1973 2 (29 U.S.C. 794) or title II of the Ameri- 3 cans with Disabilities Act of 1990 (42 4 U.S.C. 12131 et seq.); or 5 (v) another relevant record made 6 available to the State or program involved; 7 or 8 (F) physical restraint that is not in compli- 9 ance with subsection (e)(1). 10 (2) NOT INCLUDED.—The term ‘‘unlawful se- 11 clusion or restraint’’ shall not include— 12 (A) a time out; or 13 (B) a device implemented by trained school 14 personnel, or utilized by a student, for the spe- 15 cific and approved therapeutic or safety pur- 16 poses for which such devices were designed and, 17 if applicable, prescribed, provided that such de- 18 vices are not used to purposefully cause a stu- 19 dent pain as a means of behavioral modifica- 20 tion, including— 21 (i) restraints for medical immobiliza- 22 tion; 23 (ii) adaptive devices or mechanical 24 supports used to achieve proper body posi- 25 VerDate Sep 11 2014 01:06 Dec 03, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4924.IS S4924 kjohnson on DSK79L0C42PROD with BILLS 12 •S 4924 IS tion, balance, or alignment to allow greater 1 freedom of mobility than would be possible 2 without the use of such devices or mechan- 3 ical supports; or 4 (iii) vehicle safety restraints when 5 used as intended during the transport of a 6 student in a moving vehicle. 7 (c) PRIVATE RIGHT OF ACTION.— 8 (1) IN GENERAL.—A student who has been sub- 9 jected to unlawful seclusion or restraint in violation 10 of subsection (a), or the parent of such student, may 11 file a civil action against the program under which 12 the violation is alleged to have occurred in an appro- 13 priate district court of the United States or in State 14 court for declaratory judgement, injunctive relief, 15 compensatory relief, attorneys’ fees, or expert fees. 16 (2) LIMITATION ON LIABILITY.—Program per- 17 sonnel shall not be liable to any person in a pro- 18 ceeding described in paragraph (1) or in an arbitra- 19 tion proceeding for a violation of subsection (a). 20 (3) NO SOVEREIGN IMMUNITY.—No program 21 shall be immune under the Eleventh Amendment of 22 the Constitution of the United States from suit in 23 Federal or State court for a violation of subsection 24 (a) of this section. 25 VerDate Sep 11 2014 01:06 Dec 03, 2020 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4924.IS S4 [Text truncated for display. 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