Mental Health Matters Act (House of Representatives, 117th Congress, September 22, 2022)
Summary
House Report 117–484, dated September 22, 2022, is the report of the Committee on Education and Labor on H.R. 7780, the Mental Health Matters Act, submitted together with minority views; the committee reports the bill favorably with an amendment. The amendment's table of contents lists titles including the Early Childhood Mental Health Act, the Elementary and Secondary School Counseling Act and the Strengthening Behavioral Health Benefits Act. Section 107 authorizes $100,000,000 for the period of fiscal years 2023 through 2032 for carrying out sections 103(b), 104, and 106. The minority views, over the name of Virginia Foxx, Ranking Member, describe a Republican alternative.
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“Mental Health Matters Act (House of Representatives, 117th Congress, September 22, 2022).”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/crpt-crpt-117hrpt484-crpt-117hrpt484/
, SHA-256 a83331672539650b47e262b504c307982ef4589ec5b142594d9ce8212aa96699.Full text
117TH CONGRESS REPORT
" HOUSE OF REPRESENTATIVES !
2d Session 117–484
MENTAL HEALTH MATTERS ACT
SEPTEMBER 22, 2022.—Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. SCOTT of Virginia, from the Committee on Education and
Labor, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 7780]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 7780) to support the behavioral needs of students and
youth, invest in the school-based behavioral health workforce, and
ensure access to mental health and substance use disorder benefits,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary ............................................................................................ 18
Committee Action .................................................................................................... 19
Committee Views ..................................................................................................... 21
Section-by-Section Analysis .................................................................................... 41
Explanation of Amendments ................................................................................... 49
Application of Law to the Legislative Branch ....................................................... 49
Unfunded Mandate Statement ............................................................................... 49
Earmark Statement ................................................................................................. 49
Roll Call Votes ......................................................................................................... 49
Statement of Performance Goals and Objectives .................................................. 55
Duplication of Federal Programs ............................................................................ 55
Hearings ................................................................................................................... 55
Statement of Oversight Findings and Recommendations of the Committee ...... 55
New Budget Authority and CBO Cost Estimate ................................................... 55
Committee Cost Estimate ....................................................................................... 56
Changes in Existing Law Made by the Bill, as Reported ..................................... 56
Minority Views ......................................................................................................... 119
The amendment is as follows:
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29–006
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Strike all after the enacting clause and insert the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Mental Health Matters Act’’.
SEC. 2. TABLE OF CONTENTS.
The table of contents of this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I—EARLY CHILDHOOD MENTAL HEALTH ACT
Sec. 101. Short title.
Sec. 102. Identification of effective interventions in Head Start programs.
Sec. 103. Implementing the interventions in Head Start programs.
Sec. 104. Evaluating implementation of interventions in Head Start programs.
Sec. 105. Implementing the evaluation framework for Head Start programs.
Sec. 106. Best Practice Centers.
Sec. 107. Funding.
TITLE II—BUILDING PIPELINE OF SCHOOL-BASED MENTAL HEALTH SERVICE PROVIDERS ACT
Sec. 201. Short title.
Sec. 202. Definitions.
Sec. 203. Grant program to increase the number of school-based mental health services providers serving in
high-need local educational agencies.
TITLE III—ELEMENTARY AND SECONDARY SCHOOL COUNSELING ACT
Sec. 301. Short title.
Sec. 302. Definitions.
Sec. 303. Allotments to States and subgrants to local educational agencies.
Sec. 304. Authorization of appropriations.
TITLE IV—SUPPORTING TRAUMA-INFORMED EDUCATION PRACTICES ACT
Sec. 401. Short title.
Sec. 402. Amendment to the SUPPORT for Patients and Communities Act.
TITLE V—RESPOND, INNOVATE, SUCCEED, AND EMPOWER ACT
Sec. 501. Short title.
Sec. 502. Perfecting amendment to the definition of disability.
Sec. 503. Supporting students with disabilities to succeed once enrolled in college.
Sec. 504. Authorization of funds for the National Center for Information and Technical Support for Postsec-
ondary Students With Disabilities.
Sec. 505. Inclusion of information on students with disabilities.
Sec. 506. Rule of construction.
TITLE VI—STRENGTHENING BEHAVIORAL HEALTH BENEFITS ACT
Sec. 601. Short title.
Sec. 602. Enforcement of Mental Health and Substance Use Disorder Requirements.
TITLE VII—EMPLOYEE AND RETIREE ACCESS TO JUSTICE ACT
Sec. 701. Short title.
Sec. 702. Unenforceable arbitration clauses, class action waivers, representation waivers, and discretionary
clauses.
Sec. 703. Prohibition on mandatory arbitration clauses, class action waivers, representation waivers, and dis-
cretionary clauses.
Sec. 704. Effective date.
TITLE I—EARLY CHILDHOOD MENTAL HEALTH
ACT
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘Early Childhood Mental Health Support Act’’.
SEC. 102. IDENTIFICATION OF EFFECTIVE INTERVENTIONS IN HEAD START PROGRAMS.
(a) INTERVENTIONS THAT IMPROVE SOCIAL-EMOTIONAL AND BEHAVIORAL HEALTH
OF CHILDREN.—
(1) IN GENERAL.—The Secretary of Health and Human Services acting
through the Assistant Secretary for the Administration for Children and Fami-
lies (in this section referred to as the ‘‘Secretary’’) shall identify and review
interventions, best practices, curricula, and staff trainings—
(A) that improve the behavioral health of children; and
(B) that are evidence based.
(2) FOCUS.—In carrying out paragraph (1), the Secretary shall focus on inter-
ventions, best practices, curricula, and staff trainings that—
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(A) can be delivered by a provider or other staff member in or associated
with a Head Start program or Early Head Start center;
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(B) are demonstrated to improve or support healthy social, emotional, or
cognitive development for children in Head Start or Early Head Start pro-
grams, with an empirical or theoretical relationship to later mental health
or substance abuse outcomes;
(C) involve changes to center-wide policies or practices, or other services
and supports offered in conjunction with Head Start programs or Early
Head Start centers, including services provided to adults or families (with
or without a child present) for the benefit of the children;
(D) demonstrate effectiveness across racial, ethnic, and geographic popu-
lations or demonstrate the capacity to be adapted to be effective across pop-
ulations;
(E) offer a tiered approach to addressing need, including—
(i) universal interventions for all children;
(ii) selected prevention for children demonstrating increased need;
and
(iii) indicated prevention for children demonstrating substantial need;
(F) incorporate trauma-informed care approaches; or
(G) have a proven record of improving early childhood and social emo-
tional development.
(b) INTERVENTIONS THAT SUPPORT STAFF WELLNESS.—In carrying out subsection
(a), the Secretary shall identify and review interventions, best practices, curricula,
and staff trainings that support staff wellness and self-care.
(c) CREDENTIALS.—In carrying out subsections (a) and (b), the Secretary, in con-
sultation with relevant experts, shall determine the appropriate credentials for indi-
viduals who deliver the interventions, best practices, curricula, and staff trainings
identified by the Secretary.
(d) CONSULTATION; PUBLIC INPUT.—In carrying out this section, the Secretary
shall—
(1) consult with relevant agencies, experts, academics, think tanks, and non-
profit organizations with expertise in early childhood, mental health, and trau-
ma-informed care, including the National Institute of Mental Health, the Ad-
ministration for Children and Families, the Substance Abuse and Mental
Health Services Administration, the Institute of Education Sciences, and the
Centers for Disease Control and Prevention; and
(2) solicit public input on—
(A) the design of the reviews under subsections (a) and (b); and
(B) the findings and conclusions resulting from such reviews.
(e) TIMING.—The Secretary shall—
(1) complete the initial reviews required by subsections (a) and (b) not later
than 2 years after the date of enactment of this Act; and
(2) update such reviews and the findings and conclusions therefrom at least
every 5 years.
(f) REPORTING.—Not later than 1 year after the date of enactment of this Act, and
every 5 years thereafter, the Secretary shall submit a report to the Congress on the
results of implementing this section.
SEC. 103. IMPLEMENTING THE INTERVENTIONS IN HEAD START PROGRAMS.
(a) IN GENERAL.—The Assistant Secretary for the Administration for Children and
Families shall award grants to participating Head Start agencies to implement the
interventions, best practices, curricula, and staff trainings that are identified pursu-
ant to section 102.
(b) REQUIREMENTS.—The Assistant Secretary shall ensure that grants awarded
under this section are awarded to grantees representing a diversity of geographic
areas across the United States, including urban, suburban, and rural areas.
SEC. 104. EVALUATING IMPLEMENTATION OF INTERVENTIONS IN HEAD START PROGRAMS.
(a) IN GENERAL.—The Secretary of Health and Human Services, acting through
the Assistant Secretary for Planning and Evaluation and in coordination with the
Assistant Secretary for the Administration for Children and Families, shall—
(1) determine whether the interventions, best practices, curricula, and staff
trainings implemented pursuant to section 103—
(A) are effectively implemented pursuant to section 103 and other rel-
evant provisions of law such that the anticipated effect sizes of the inter-
ventions, best practices, curricula, and staff trainings are achieved; and
(B) yield long-term savings;
(2) develop a method for making the determination required by paragraph (1);
(3) ensure that such method includes competency and testing approaches, per-
formance or outcome measures, or any other methods deemed appropriate by
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the Assistant Secretary, taking into consideration existing monitoring compo-
nents of the Head Start and Early Head Start programs; and
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(4) solicit public input on the design, findings, and conclusions of this process
and shall consider whether updates are necessary at least every 5 years.
(b) PROCESS.—In carrying out subsection (a), the Secretary of Health and Human
Services shall—
(1) conduct any research and evaluation studies needed; and
(2) solicit public input on—
(A) the design of the method developed pursuant to subsection (a)(2); and
(B) the resulting findings and conclusions.
(c) TIMING.—The Secretary of Health and Human Services shall—
(1) develop the method required by subsection (a)(2) and make the initial de-
termination required by subsection (a)(1) not later than 2 years after the date
of enactment of this Act; and
(2) update such method and determination at least every 5 years.
SEC. 105. IMPLEMENTING THE EVALUATION FRAMEWORK FOR HEAD START PROGRAMS.
(a) EVALUATION METHOD.—The Assistant Secretary for the Administration for
Children and Families shall implement the evaluation method developed pursuant
to section 104(a) in the Head Start program as a voluntary mechanism for inter-
ested Head Start programs or Early Head Start centers to evaluate the extent to
which such programs or centers have effectively implemented the interventions, best
practices, curricula, and staff trainings identified pursuant to section 102, with
minimal burden or disruption to programs and centers interested in participating.
(b) TECHNICAL ASSISTANCE.—The Assistant Secretary for the Administration for
Children and Families shall provide guidance, tools, resources, and technical assist-
ance to grantees for implementing and evaluating interventions, best practices, cur-
ricula, and staff trainings identified pursuant to section 102 and optimizing the per-
formance of such grantees on the annual evaluations.
SEC. 106. BEST PRACTICE CENTERS.
The Assistant Secretary for the Administration for Children and Families may
fund up to 5 Best Practice Centers in Early Childhood Training in universities and
colleges to prepare future Head Start agencies and staff able to deliver the interven-
tions, best practices, curricula, and staff trainings identified pursuant to section 102.
SEC. 107. FUNDING.
(a) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated
$100,000,000 for the period of fiscal years 2023 through 2032 for carrying out sec-
tions 103(b), 104, and 106.
(b) AVAILABILITY OF APPROPRIATIONS.—Amounts authorized to be appropriated by
subsection (a) are authorized to remain available until expended.
TITLE II—BUILDING PIPELINE OF SCHOOL-
BASED MENTAL HEALTH SERVICE PRO-
VIDERS ACT
SEC. 201. SHORT TITLE.
This title may be cited as the ‘‘Building Pipeline of School-Based Mental Health
Service Providers Act’’.
SEC. 202. DEFINITIONS.
In this title:
(1) BEST PRACTICES.—The term ‘‘best practices’’ means a technique or method-
ology that, through experience and research related to professional practice in
a school-based mental health field, has proven to reliably lead to a desired re-
sult.
(2) ELIGIBLE INSTITUTION.—The term ‘‘eligible institution’’ means an institu-
tion of higher education that offers a program of study that leads to a master’s
or other graduate degree—
(A) in school psychology that prepares students in such program for the
State licensing or certification examination in school psychology;
(B) in school counseling that prepares students in such program for the
State licensing or certification examination in school counseling;
(C) in school social work that prepares students in such program for the
State licensing or certification examination in school social work;
(D) in another school-based mental health field that prepares students in
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such program for the State licensing or certification examination in such
field, if applicable; or
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(E) in any combination of study described in subparagraphs (A) through
(D).
(3) ELIGIBLE PARTNERSHIP.—The term ‘‘eligible partnership’’ means—
(A) a partnership between 1 or more high-need local educational agencies
and 1 or more eligible institutions; or
(B) in any region in which local educational agencies may not have a suf-
ficient elementary school and secondary school student population to sup-
port the placement of all participating graduate students, a partnership be-
tween a State educational agency, on behalf of 1 or more high-need local
educational agencies, and 1 or more eligible institutions.
(4) HIGH-NEED LOCAL EDUCATIONAL AGENCY.—The term ‘‘high-need local edu-
cational agency’’ means a local educational agency that—
(A) is described in section 200(10) of the Higher Education Act of 1965
(20 U.S.C. 1021(10)); and
(B) as of the date of application for a grant under this title, has ratios
of school counselors, school social workers, and school psychologists to stu-
dents served by the agency that are not more than 1 school counselor per
250 students, not more than 1 school psychologist per 500 students, and not
more than 1 school social worker per 250 students.
(5) HISTORICALLY BLACK COLLEGE OR UNIVERSITY.—The term ‘‘historically
Black college or university’’ has the meaning given the term ‘‘part B institution’’
in section 322 of the Higher Education Act of 1965 (20 U.S.C. 1061).
(6) HOMELESS CHILDREN AND YOUTHS.—The term ‘‘homeless children and
youths’’ has the meaning given such term in section 725 of the McKinney-Vento
Homeless Assistance Act (42 U.S.C. 11434a).
(7) INDIAN TRIBE; TRIBAL ORGANIZATION.—In this section the terms ‘‘Indian
tribe’’ and ‘‘tribal organization’’ have the meanings given those terms in section
4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C.
5304)).
(8) INSTITUTION OF HIGHER EDUCATION.—The term ‘‘institution of higher edu-
cation’’ has the meaning given such term in section 101(a) of the Higher Edu-
cation Act of 1965 (20 U.S.C. 1001(a)).
(9) LOCAL EDUCATIONAL AGENCY.—The term ‘‘local educational agency’’ has
the meaning given such term in section 8101 of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 7801).
(10) MINORITY-SERVING INSTITUTION.—The term ‘‘minority-serving institution’’
means, as defined in section 371(a) of the Higher Education Act of 1965 (20
U.S.C. 1067q(a)), a Hispanic-serving institution, an Alaska Native-serving insti-
tution or a Native Hawaiian-serving institution, a Predominantly Black Institu-
tion, an Asian American and Native American Pacific Islander-serving institu-
tion, or a Native American-serving nontribal institution.
(11) OUTLYING AREA.—The term ‘‘outlying area’’ has the meaning given the
term in section 8101(36)(A) of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 7801(36)(A)).
(12) PARTICIPATING ELIGIBLE INSTITUTION.—The term ‘‘participating eligible
institution’’ means an eligible institution that is part of an eligible partnership
awarded a grant under section 203.
(13) PARTICIPATING GRADUATE.—The term ‘‘participating graduate’’ means an
individual who—
(A) has received a master’s or other graduate degree in a school-based
mental health field from a participating eligible institution and has ob-
tained a State license or credential in the school-based mental health field;
and
(B) as a graduate student pursuing a career in a school-based mental
health field, was placed in a school served by a participating high-need local
educational agency to complete required field work, credit hours, intern-
ships, or related training as applicable.
(14) PARTICIPATING HIGH-NEED LOCAL EDUCATIONAL AGENCY.—The term ‘‘par-
ticipating high-need local educational agency’’ means a high-need local edu-
cational agency that is part of an eligible partnership awarded a grant under
section 203.
(15) SCHOOL-BASED MENTAL HEALTH FIELD.—The term ‘‘school-based mental
health field’’ means each of the following fields:
(A) School counseling.
(B) School social work.
(C) School psychology.
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(D) Any other field of study that leads to employment as a school-based
mental health services provider.
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(16) SCHOOL-BASED MENTAL HEALTH SERVICES PROVIDER.—The term ‘‘school-
based mental health services provider’’ has the meaning given the term in sec-
tion 4102 of the Elementary and Secondary Education Act of 1965 (20 U.S.C.
7112).
(17) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of Education.
(18) STATE EDUCATIONAL AGENCY.—The term ‘‘State educational agency’’ has
the meaning given the term in section 8101 of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 7801).
(19) STUDENT SUPPORT PERSONNEL TARGET RATIOS.—The term ‘‘student sup-
port personnel target ratios’’ means the ratios of school-based mental health
services providers to students recommended to enable such personnel to effec-
tively address the needs of students, including—
(A) at least 1 school counselor for every 250 students (as recommended
by the American School Counselor Association and American Counseling
Association);
(B) at least 1 school psychologist for every 500 students (as recommended
by the National Association of School Psychologists); and
(C) at least 1 school social worker for every 250 students (as rec-
ommended by the School Social Work Association of America).
(20) TRIBALLY CONTROLLED COLLEGE OR UNIVERSITY.—The term ‘‘tribally con-
trolled college or university’’ has the meaning given such term in section 2 of
the Tribally Controlled Colleges and Universities Assistance Act of 1978 (25
U.S.C. 1801).
(21) UNACCOMPANIED YOUTH.—The term ‘‘unaccompanied youth’’ has the
meaning given such term in section 725 of the McKinney-Vento Homeless As-
sistance Act (42 U.S.C. 11434a).
SEC. 203. GRANT PROGRAM TO INCREASE THE NUMBER OF SCHOOL-BASED MENTAL HEALTH
SERVICES PROVIDERS SERVING IN HIGH-NEED LOCAL EDUCATIONAL AGENCIES.
(a) AUTHORIZATION OF GRANTS.—
(1) GRANT PROGRAM AUTHORIZED.—From amounts made available to carry out
this section, the Secretary shall award grants, on a competitive basis, to eligible
partnerships, to enable the eligible partnerships to carry out pipeline programs
to increase the number of school-based mental health services providers em-
ployed by high-need local educational agencies by carrying out any of the activi-
ties described in subsection (e).
(2) RESERVATIONS.—From the total amount appropriated under subsection (j)
for a fiscal year, the Secretary shall reserve—
(A) one-half of 1 percent for the Secretary of the Interior to carry out pro-
grams under this title in schools operated or funded by the Bureau of In-
dian Education, Indian tribes and tribal organizations, or a consortium of
Indian tribes and tribal organizations;
(B) one-half of 1 percent for allotments to outlying areas based on the rel-
ative need of each such area with respect to mental health services in
schools, as determined by the Secretary in accordance with the purpose of
this title;
(C) not more than 3 percent to conduct the evaluations under subsection
(h); and
(D) not more than 2 percent for the administration of the program under
this title and to provide technical assistance relating to such program.
(b) GRANT PERIOD.—A grant awarded under this section shall be for a 5-year pe-
riod and may be renewed for additional 5-year periods upon a showing of adequate
progress, as determined by the Secretary.
(c) APPLICATION.—To be eligible to receive a grant under this section, an eligible
partnership shall submit to the Secretary a grant application at such time, in such
manner, and containing such information as the Secretary may require. At a min-
imum, such application shall include—
(1) an assessment of the existing (as of the date of application) ratios of
school-based mental health services providers (in the aggregate and
disaggregated by profession) to students enrolled in schools in each high-need
local educational agency that is part of the eligible partnership; and
(2) a detailed description of—
(A) a plan to carry out a pipeline program to train, place, and retain
school-based mental health services providers in high-need local educational
agencies; and
(B) the proposed allocation and use of grant funds to carry out activities
described in subsection (e).
(d) AWARD BASIS.—In awarding grants under this section, the Secretary shall—
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(1) ensure that to the extent practicable, grants are distributed among eligible
entities that will serve geographically diverse areas; and
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(2) give priority to eligible partnerships that—
(A) propose to use the grant funds to carry out the activities described
under paragraphs (1) through (3) of subsection (e) in schools that have
higher numbers or percentages of low-income students (determined using
any of the measures of poverty described in section 1113(a)(5) of the Ele-
mentary and Secondary Education Act of 1965 (20 U.S.C. 6313(a)(5))), in
comparison to other schools that are served by the high-need local edu-
cational agency that is part of the eligible partnership;
(B) include 1 or more high-need local educational agencies that have
fewer school-based mental health services providers, in the aggregate or for
a particular school-based mental health field, per student than other eligi-
ble partnerships that have submitted a grant application under subsection
(c);
(C) include 1 or more eligible institutions of higher education which are
a historically Black college or university, a minority-serving institution, or
a tribally controlled college or university;
(D) propose to collaborate with other institutions of higher education with
similar programs, including sharing facilities, faculty members, and admin-
istrative costs; and
(E) propose to use grant funds to increase the diversity of school-based
mental health services providers.
(e) USE OF GRANT FUNDS.—Grant funds awarded under this section may be
used—
(1) to pay the administrative costs (including supplies, office and classroom
space, supervision, mentoring, and transportation stipends as necessary and ap-
propriate) related to—
(A) having graduate students of programs in school-based mental health
fields placed in schools served by participating high-need local educational
agencies to complete required field work, credit hours, internships, or re-
lated training as applicable for the degree, license, or credential program
of each such student; and
(B) offering required graduate coursework for students of a graduate pro-
gram in a school-based mental health services field on the site of a partici-
pating high-need local educational agency;
(2) for not more than the first 3 years after a participating graduate receives
a master’s or other graduate degree from a program in a school-based mental
health field, or obtains a State license or credential in a school-based mental
health field, to hire and pay all or part of the salary of the participating grad-
uates working as a school-based mental health services provider in a school
served by a participating high-need local educational agency;
(3) to increase the number of school-based mental health services providers
per student in schools served by participating high-need local educational agen-
cies, in order to meet the student support personnel target ratios;
(4) to recruit, hire, and retain culturally or linguistically under-represented
graduate students of programs in school-based mental health fields for place-
ment in schools served by participating high-need local educational agencies;
(5) to develop coursework that will—
(A) encourage a commitment by graduate students in school-based mental
health fields to work for high-need local educational agencies;
(B) give participating graduates the knowledge and skill sets necessary
to meet the needs of—
(i) students and families served by high-need local educational agen-
cies;
(ii) students at risk of not meeting State academic standards;
(iii) students who—
(I) are English learners (as defined in section 8101 of the Ele-
mentary and Secondary Education Act of 1965 (20 U.S.C. 7801));
(II) are migratory children (as defined in section 1309 of such Act
(20 U.S.C. 6399));
(III) have a parent or caregiver who is a member of the armed
forces, including the National Guard, who has been deployed or re-
turned from deployment;
(IV) are LGBTQ+, including students who are lesbian, gay, bisex-
ual, transgender, queer or questioning, nonbinary, or Two-Spirit;
(V) are homeless children and youth, including unaccompanied
youth;
(VI) have come into contact with the juvenile justice system or
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adult criminal justice system, including students currently or pre-
viously held in juvenile detention facilities or adult jails and stu-
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8
dents currently or previously held in juvenile correctional facilities
or adult prisons;
(VII) are a child with a disability (as defined in section 8101 of
the Elementary and Secondary Education Act of 1965 (20 U.S.C.
7801));
(VIII) have been a victim to, or witnessed, domestic violence or
violence in their community;
(IX) have been exposed to substance misuse at home or in the
community;
(X) are in foster care, are aging out of foster care, or were for-
merly in foster care; or
(XI) have been a victim to or witnessed trafficking in persons;
and
(iv) teachers, administrators, and other staff who work for high-need
local educational agencies; and
(C) utilize best practices determined by the American School Counselor
Association, National Association of Social Workers, School Social Work As-
sociation of America, and National Association of School Psychologists and
other relevant organizations;
(6) to provide tuition credits to graduate students participating in the pipeline
program supported under the grant;
(7) to fund high-quality ‘‘Grow Your Own’’ teacher preparation programs that
provide pathways to State licensure or certification as a school psychologist,
school counselor, school social worker, or other school-based mental services pro-
vider to recruit and prepare local community members, career changers, para-
professionals, after-school program staff, and others currently working in
schools to become school-based mental health services providers;
(8) to cover the costs of licensure and preparation for required licensure
exams; and
(9) for similar activities to fulfill the purpose of this title, as the Secretary
determines appropriate.
(f) SUPPLEMENT NOT SUPPLANT.—Funds made available under this section shall
be used to supplement, not supplant, other Federal, State, or local funds available
for the activities described in subsection (e).
(g) REPORTING REQUIREMENTS.—
(1) IN GENERAL.—Each eligible partnership that receives a grant under this
section shall prepare and submit to the Secretary an annual report on the
progress of the eligible partnership in carrying out the grant. Such report shall
contain such information as the Secretary may require, including, at a min-
imum, a description of—
(A) actual service delivery provided through the grant funds, including—
(i) descriptive information on the participating eligible institution,
the educational model used, and the actual academic program perform-
ance;
(ii) characteristics of graduate students participating in the pipeline
program supported under the grant, including—
(I) performance on any examinations required by the State for
credentialing or licensing;
(II) demographic characteristics; and
(III) graduate student retention rates;
(iii) characteristics of students of the participating high-need local
educational agency, including performance on any tests required by the
State educational agency, demographic characteristics, and graduation
rates, as appropriate;
(iv) an estimate of the annual implementation costs of the pipeline
program supported under the grant; and
(v) the number of public elementary and secondary school students,
public elementary and secondary schools, graduate students, and insti-
tutions of higher education participating in the pipeline program sup-
ported under the grant;
(B) outcomes that are consistent with the purpose of the grant program
under this title, including—
(i) internship and post-graduation placement of the participating
graduate students;
(ii) graduation and professional career readiness indicators; and
(iii) characteristics of the participating high-need local educational
agency, including with respect to fully certified and effective teachers
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and school-based mental health services providers employed by such
agency—
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9
(I) changes in the rate of hiring and retention of such teachers
and providers (in the aggregate and disaggregated by each such
profession); and
(II) the demographics, including the race, ethnicity, and gender,
of such teachers and providers.
(C) the instruction, materials, and activities being funded under the
grant; and
(D) the effectiveness of any training and ongoing professional develop-
ment provided—
(i) to students and faculty in the appropriate departments or schools
of the participating eligible institution; and
(ii) to the teachers, paraprofessionals, school leaders, school-based
mental health services providers, and other specialized instructional
support personnel of the participating high-need local educational agen-
cy.
(2) PUBLICATION.—The Secretary shall publish the annual reports submitted
under paragraph (1) on the website of the Department of Education.
(h) EVALUATION.—
(1) INTERIM EVALUATIONS.—The Secretary may conduct interim evaluations to
determine whether each eligible partnership receiving a grant under this sec-
tion is making adequate progress as the Secretary considers appropriate. The
contents of the annual report submitted to the Secretary under subsection (g)
may be used by the Secretary to determine whether an eligible partnership re-
ceiving a grant is demonstrating adequate progress.
(2) FINAL EVALUATION.—The Secretary shall conduct a final evaluation to—
(A) determine the effectiveness of the grant program in carrying out the
purpose of this title; and
(B) compare the relative effectiveness of each of the various activities de-
scribed in subsection (e) for which grant funds may be used.
(i) REPORT.—Not earlier than 5 years, nor later than 6 years, after the date of
enactment of this Act, the Secretary shall submit to the Congress a report con-
taining—
(1) the findings of the final evaluation conducted under subsection (h)(2); and
(2) such recommendations as the Secretary considers appropriate.
(j) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated
to carry out this section $200,000,000 for fiscal year 2023 and each succeeding fiscal
year.
TITLE III—ELEMENTARY AND SECONDARY
SCHOOL COUNSELING ACT
SEC. 301. SHORT TITLE.
This title may be cited as the ‘‘Elementary and Secondary School Counseling Act’’.
SEC. 302. DEFINITIONS.
In this title:
(1) ESEA DEFINITIONS.—The terms ‘‘elementary school’’, ‘‘local educational
agency’’, and ‘‘secondary school’’ have the meanings given the terms in section
8101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801).
(2) HIGH-NEED SCHOOL.—The term ‘‘high-need school’’ has the meaning given
the term in section 2211(b) of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 6631(b)).
(3) INDIAN TRIBE; TRIBAL ORGANIZATION.—The terms ‘‘Indian tribe’’ and ‘‘tribal
organization’’ have the meanings given those terms in section 4 of the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 5304)).
(4) OUTLYING AREA.—The term ‘‘outlying area’’ means an outlying area speci-
fied in section 8101(36)(A) of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 7801(36)(A)).
(5) SCHOOL-BASED MENTAL HEALTH SERVICES PROVIDER.—The term ‘‘school-
based mental health services provider’’ has the meaning given the term in sec-
tion 4102 of the Elementary and Secondary Education Act of 1965 (20 U.S.C.
7112).
(6) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of Education.
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(7) STATE.—The term ‘‘State’’ means each of the 50 States, the District of Co-
lumbia, and Puerto Rico.
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SEC. 303. ALLOTMENTS TO STATES AND SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.
(a) PROGRAM AUTHORIZED.—The Secretary shall carry out a program under which
the Secretary makes allotments to States, in accordance with subsection (c), to en-
able the States to award subgrants to local educational agencies in order to increase
access to school-based mental health services providers at high-need schools served
by the local educational agencies.
(b) RESERVATIONS.—From the total amount made available under section 304 for
a fiscal year, the Secretary shall reserve—
(1) one-half of 1 percent for the Secretary of the Interior for programs under
this title in schools operated or funded by the Bureau of Indian Education, In-
dian tribes and tribal organizations, or consortia of Indian tribes and tribal or-
ganizations;
(2) one-half of 1 percent for allotments for the outlying areas to be distributed
among those outlying areas on the basis of their relative need, as determined
by the Secretary, in accordance with the purpose of this title; and
(3) not more than 2 percent for the administration of the program under this
title and to provide technical assistance relating to such program.
(c) ALLOTMENTS TO STATES.—
(1) IN GENERAL.—
(A) FORMULA.—From the total amount made available under section 304
for a fiscal year and not reserved under subsection (b), the Secretary shall
allot to each State that submits a true and complete application under
paragraph (3) (as determined by the Secretary) an amount that bears the
same relationship to such total amount as the amount received under part
A of title I of the Elementary and Secondary Education Act of 1965 (20
U.S.C. 6311 et seq.) by such State for such fiscal year bears to the amount
received under such part for such fiscal year by all States that submit such
applications.
(B) SMALL STATE MINIMUM.—No State receiving an allotment under this
paragraph shall receive less than one-half of 1 percent of the total amount
allotted under this paragraph.
(2) MATCHING REQUIREMENTS.—In order to receive an allotment under para-
graph (1), a State shall agree to provide matching funds, in an amount equal
to 20 percent of the amount of the allotment, toward the costs of the activities
carried out with the allotment.
(3) APPLICATION.—A State desiring an allotment under paragraph (1) shall
submit to the Secretary an application at such time, in such manner, and con-
taining such information as the Secretary may require. Each application shall
include, at a minimum—
(A) an assurance that the State will use the allotment only for the pur-
poses specified in subsection (d)(1);
(B) a description of how the State will award subgrants to local edu-
cational agencies under such subsection;
(C) a description of how the State will disseminate, in a timely manner,
information regarding the subgrants and the application process for such
subgrants to local educational agencies; and
(D) the ratios, as of the date of application, of students to school-based
mental health services providers in each public elementary school and sec-
ondary school in the State, in the aggregate and disaggregated to include—
(i) the ratios of students to school counselors, school psychologists,
and school social workers; and
(ii) as applicable, the ratios of students to other school-based mental
health services providers not described in clause (i), in the aggregate
and disaggregated by type of provider.
(4) DURATION.—An allotment to a State under paragraph (1) shall be for a
5-year period and may be renewed for additional 5-year periods upon a showing
of adequate progress on meeting the goals of the program under this title, as
determined by the Secretary.
(d) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.—
(1) IN GENERAL.—A State receiving an allotment under subsection (c) shall
use the allotment to award subgrants, on a competitive basis, to local edu-
cational agencies in the State, to enable the local educational agencies to—
(A) recruit and retain school-based mental health services providers to
work at high-need schools served by the local educational agency; and
(B) work toward effectively staffing the high-need schools of the local edu-
cational agency with school-based mental health services providers, includ-
ing by meeting the recommended maximum ratios of—
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(i) 250 students per school counselor;
(ii) 500 students per school psychologist; and
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11
(iii) 250 students per school social worker.
(2) PRIORITY.—In awarding subgrants under this subsection, the State shall
give priority to local educational agencies that serve a significant number of
high-need schools.
(3) APPLICATION.—A local educational agency desiring a subgrant under this
subsection shall submit an application to the State at such time, in such man-
ner, and containing such information as the State may require, including infor-
mation on how the local educational agency will prioritize assisting high-need
schools with the largest numbers or percentages of students from low-income
families (as counted under section 1124(c) of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 6333(c))).
(e) ALLOTMENT AND SUBGRANT REQUIREMENTS.—
(1) SUPPLEMENT, NOT SUPPLANT.—Amounts received from an allotment under
subsection (c) or a subgrant under subsection (d) shall supplement, and not sup-
plant, any other funds available to a State or local educational agency for
school-based mental health services.
(2) COMBINING FUNDS ALLOWED.—A local educational agency receiving a
subgrant under subsection (d) may combine such subgrant with State or local
funds to carry out the activities described in subsection (d)(1).
(f) REPORTS.—
(1) LOCAL EDUCATIONAL AGENCIES.—A local educational agency that receives
a subgrant under subsection (d) shall submit an annual report to the State on
the activities carried out with the subgrant funds. Each such report shall—
(A) describe the activities carried out using subgrant funds;
(B) enumerate the number of school-based mental health services pro-
viders (in the aggregate and disaggregated by profession) who—
(i) were employed by or otherwise served in high-need public elemen-
tary and secondary schools under the jurisdiction of the local edu-
cational agency over the year covered by the report; and
(ii) were supported with funds from the subgrant or matching funds
during such year; and
(C) include the most recent student to provider ratios, in the aggregate
and disaggregated as provided in subsection (c)(3)(D), for high-need schools
under the jurisdiction of the local educational agency that were supported
with the subgrant or matching funds.
(2) STATE.—A State receiving an allotment under subsection (c) shall annually
prepare and submit a report to the Secretary that—
(A) evaluates the progress made in achieving the purposes of the program
under this title;
(B) includes the most recent student to provider ratios, in the aggregate
and disaggregated as provided in subsection (c)(3)(D), for high-need schools
in the State that were assisted with subgrants under subsection (d); and
(C) describes any other resources needed to meet the required rec-
ommended maximum student to school-based mental health services pro-
vider ratios.
(3) PUBLIC AVAILABILITY.—The Secretary shall make all reports submitted
under this subsection available to the public, including through the website of
the Department.
SEC. 304. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out this title—
(1) $5,000,000,000 for fiscal year 2023; and
(2) such sums as may be necessary for each succeeding fiscal year.
TITLE IV—SUPPORTING TRAUMA-INFORMED
EDUCATION PRACTICES ACT
SECTION 401. SHORT TITLE.
This title may be cited as the ‘‘Supporting Trauma-Informed Education Practices
Act’’.
SEC. 402. AMENDMENT TO THE SUPPORT FOR PATIENTS AND COMMUNITIES ACT.
Section 7134 of the SUPPORT for Patients and Communities Act (42 U.S.C. 280h-
7) is amended to read as follows:
‘‘SEC. 7134. GRANTS TO IMPROVE TRAUMA SUPPORT SERVICES AND MENTAL HEALTH CARE
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FOR CHILDREN AND YOUTH IN EDUCATIONAL SETTINGS.
‘‘(a) AUTHORIZATION OF GRANTS.—
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12
‘‘(1) GRANTS, CONTRACTS, AND COOPERATIVE AGREEMENTS AUTHORIZED.—The
Secretary, in coordination with the Secretary of Health and Human Services,
is authorized to award grants to, or enter into contracts or cooperative agree-
ments with, an eligible entity for the purpose of increasing student, teacher,
school leader, and other school personnel access to evidence-based trauma sup-
port services and mental health services by developing innovative initiatives,
activities, or programs to connect schools and local educational agencies, or trib-
al educational agencies, as applicable, with community trauma-informed sup-
port and mental health systems, including such systems under the Indian
Health Service.
‘‘(2) RESERVATIONS.—From the total amount appropriated under subsection (l)
for a fiscal year, the Secretary shall reserve—
‘‘(A) not more than 3 percent to conduct the evaluation under subsection
(f); and
‘‘(B) not more than 2 percent for technical assistance and administration.
‘‘(b) DURATION.—With respect to a grant, contract, or cooperative agreement
awarded or entered into under this section, the period during which payments under
such grant, contract or agreement are made to the recipient may not exceed 5 years.
‘‘(c) USE OF FUNDS.—An eligible entity that receives or enters into a grant, con-
tract, or cooperative agreement under this section shall use amounts made available
through such grant, contract, or cooperative agreement for evidence-based initia-
tives, activities, or programs, which shall include at least 1 of the following:
‘‘(1) Enhancing, improving, or developing collaborative efforts between
schools, local educational agencies or tribal educational agencies, as applicable,
and community mental health and trauma-informed service delivery systems to
provide, develop, or improve prevention, referral, treatment, and support serv-
ices to students.
‘‘(2) Implementing trauma-informed models of support, including trauma-in-
formed, positive behavioral interventions and supports in schools served by the
eligible entity.
‘‘(3) Providing professional development to teachers, paraprofessionals, school
leaders, school-based mental health services providers, and other specialized in-
structional support personnel employed by local educational agencies or tribal
educational agencies, as applicable or schools served by the eligible entity
that—
‘‘(A) fosters safe and stable learning environments that prevent and miti-
gate the effects of trauma, including through social and emotional learning;
‘‘(B) improves school capacity to identify, refer, and provide services to
students in need of trauma-informed support or mental health services, in-
cluding by helping educators to identify the unique personal and contextual
variables that influence the manifestation of trauma; and
‘‘(C) reflects the best practices for trauma-informed identification, refer-
ral, and support developed by the Interagency Task Force on Trauma-In-
formed Care (as established by section 7132).
‘‘(4) Providing trauma-informed support services and mental health services
to students at full-service community schools served by the eligible entity.
‘‘(5) Engaging families and communities to increase awareness of child trau-
ma, which may include sharing best practices with law enforcement regarding
trauma-informed services and working with mental health professionals to pro-
vide interventions and longer term coordinated care within the community for
children and youth who have experienced trauma and the families of such chil-
dren and youth.
‘‘(6) Evaluating the effectiveness of the initiatives, activities, or programs car-
ried out under this section in increasing student access to evidence-based trau-
ma support services and mental health services.
‘‘(7) Establishing partnerships with or providing subgrants to early childhood
education programs or other eligible entities, to include such entities in the evi-
dence-based trauma-informed or mental health initiatives, activities, and sup-
port services established under this section in order to provide, develop, or im-
prove prevention, referral, treatment, and support services to children and their
families.
‘‘(8) Establishing new, or enhancing existing, evidence-based educational,
awareness, and prevention programs to improve mental health and resiliency
among teachers, paraprofessionals, school leaders, school-based mental health
services providers, and other specialized instructional support personnel em-
ployed by local educational agencies or tribal educational agencies, as applica-
ble, or schools served by the eligible entity.
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‘‘(d) APPLICATIONS.—To be eligible to receive a grant, contract, or cooperative
agreement under this section, an eligible entity shall submit an application to the
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13
Secretary at such time, in such manner, and containing such information as the
Secretary may reasonably require, which shall include the following:
‘‘(1) A description of the innovative initiatives, activities, or programs to be
funded under the grant, contract, or cooperative agreement, including how such
initiatives, activities, or programs will increase access to evidence-based trau-
ma-informed support services and mental health services for students, and, as
applicable, the families of such students.
‘‘(2) A description of how the initiatives, activities, or programs will provide
linguistically appropriate and culturally competent services.
‘‘(3) A description of how the initiatives, activities, or programs will support
schools served by the eligible entity in improving school climate in order to sup-
port an environment conducive to learning.
‘‘(4) An assurance that—
‘‘(A) persons providing services under the initiative, activity, or program
funded by the grant, contract, or cooperative agreement are fully licensed
or certified to provide such services;
‘‘(B) teachers, school leaders, administrators, school-based mental health
services providers and other specialized instructional support personnel,
representatives of local Indian Tribes or tribal organizations as appropriate,
other school personnel, individuals who have experience receiving mental
health services as children, and parents of students participating in serv-
ices under this section will be engaged and involved in the design and im-
plementation of the services; and
‘‘(C) the eligible entity will comply with the evaluation required under
subsection (f).
‘‘(5) A description of how the eligible entity will support and integrate existing
school-based services at schools served by the eligible entity with the initiatives,
activities, or programs funded under this section in order to provide trauma-in-
formed support services or mental health services for students, as appropriate.
‘‘(6) A description of how the eligible entity will incorporate peer support serv-
ices into the initiatives, activities, or programs to be funded under this section.
‘‘(7) A description of how the eligible entity will ensure that initiatives, activi-
ties, or programs funded under this section are accessible to and include stu-
dents with disabilities.
‘‘(8) An assurance that the eligible entity will establish a local interagency
agreement under subsection (e) and comply with such agreement.
‘‘(e) INTERAGENCY AGREEMENTS.—
‘‘(1) LOCAL INTERAGENCY AGREEMENTS.—In carrying out an evidence-based
initiative, activity, or program described in subsection (c), an eligible entity that
receives a grant, contract, or cooperative agreement under this section, or a des-
ignee of such entity, shall establish an interagency agreement between local
educational agencies, agencies responsible for early childhood education pro-
grams, Head Start agencies (including Early Head Start agencies), juvenile jus-
tice authorities, mental health agencies, child welfare agencies, and other rel-
evant agencies, authorities, or entities in the community that will be involved
in the provision of services under such initiative, activity, or program.
‘‘(2) CONTENTS.—The local interagency agreement required under paragraph
(1) shall specify, with respect to each agency, authority, or entity that is a party
to such agreement—
‘‘(A) the financial responsibility for any services provided by such entity;
‘‘(B) the conditions and terms of responsibility for such any services, in-
cluding quality, accountability, and coordination of the services; and
‘‘(C) the conditions and terms of reimbursement of such agencies, authori-
ties, or entities, including procedures for dispute resolution.
‘‘(f) EVALUATION.—The Secretary shall conduct a rigorous and independent eval-
uation of the initiatives, activities, and programs carried out by an eligible entity
under this section and disseminate evidence-based practices regarding trauma-in-
formed support services and mental health services.
‘‘(g) DISTRIBUTION OF AWARDS.—The Secretary shall ensure that grants, contracts,
and cooperative agreements awarded or entered into under this section are equi-
tably distributed among the geographical regions of the United States and among
tribal, urban, suburban, and rural populations.
‘‘(h) RULE OF CONSTRUCTION.—Nothing in this section shall be construed—
‘‘(1) to prohibit an entity involved with an initiative, activity, or program car-
ried out under this section from reporting a crime that is committed by a stu-
dent to appropriate authorities; or
‘‘(2) to prevent Federal, State, local, and tribal law enforcement and judicial
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authorities from exercising their responsibilities with regard to the application
of Federal, State, local, and tribal law to crimes committed by a student.
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14
‘‘(i) SUPPLEMENT, NOT SUPPLANT.—Federal funds provided under this section shall
be used to supplement, and not supplant, other Federal, State, or local funds avail-
able to carry out the initiatives, activities, and programs described in this section.
‘‘(j) CONSULTATION REQUIRED.—In awarding or entering into grants, contracts,
and cooperative agreements under this section, the Secretary shall, in a timely man-
ner, meaningfully consult with Indian Tribes, Regional Corporations, Native Hawai-
ian Educational Organizations, and their representatives to ensure notice of eligi-
bility.
‘‘(k) DEFINITIONS.—In this section:
‘‘(1) EARLY CHILDHOOD EDUCATION PROGRAM.—The term ‘early childhood edu-
cation program’ has the meaning given such term in section 103 of the Higher
Education Act of 1965 (20 U.S.C. 1003).
‘‘(2) ELIGIBLE ENTITY.—The term ‘eligible entity’ means—
‘‘(A) a State educational agency;
‘‘(B) a local educational agency;
‘‘(C) an Indian Tribe (as defined in section 4 of the Indian Self-Deter-
mination and Education Assistance Act) or their tribal educational agency;
‘‘(D) the Bureau of Indian Education;
‘‘(E) a Regional Corporation;
‘‘(F) a Native Hawaiian educational organization; and
‘‘(G) State, Territory, and Tribal Lead Agencies administering the Child
Care and Development Fund as described in section 658D(a) of the Child
Care and Development Block Grant Act (42 U.S.C. 9858b(a)).
‘‘(3) ESEA TERMS.—
‘‘(A) The terms ‘elementary school’, ‘evidence-based’, ‘local educational
agency’, ‘paraprofessional’, ‘parent’, ‘professional development’, ‘school lead-
er’, ‘secondary school’, ‘Secretary’, ‘specialized instructional support per-
sonnel’, and ‘State educational agency’ have the meanings given such terms
in section 8101 of the Elementary and Secondary Education Act of 1965 (20
U.S.C. 7801).
‘‘(B) The term ‘full-service community school’ has the meaning given such
term in section 4622 of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 7272).
‘‘(C) The term ‘Native Hawaiian educational organization’ has the mean-
ing given such term in section 6207 of the Elementary and Secondary Edu-
cation Act of 1965 (20 U.S.C. 7517).
‘‘(D) The term ‘school-based mental health services provider’ has the
meaning given the term in section 4102 of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 7112).
‘‘(4) REGIONAL CORPORATION.—The term ‘Regional Corporation’ has the mean-
ing given the term in section 3 of the Alaska Native Claims Settlement Act (43
U.S.C. 1602)).
‘‘(5) SCHOOL.—The term ‘school’ means a public elementary school or public
secondary school.
‘‘(l) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated
to carry out this section, $50,000,000 for each of fiscal years 2023 through 2027.’’.
TITLE V—RESPOND, INNOVATE, SUCCEED,
AND EMPOWER ACT
SEC. 501. SHORT TITLE.
This title may be cited as the ‘‘Respond, Innovate, Succeed, and Empower Act’’
or the ‘‘RISE Act’’.
SEC. 502. PERFECTING AMENDMENT TO THE DEFINITION OF DISABILITY.
Section 103(6) of the Higher Education Act of 1965 (20 U.S.C. 1003(6)) is amended
by striking ‘‘section 3(2)’’ and inserting ‘‘section 3’’.
SEC. 503. SUPPORTING STUDENTS WITH DISABILITIES TO SUCCEED ONCE ENROLLED IN COL-
LEGE.
Section 487(a) of the Higher Education Act of 1965 (20 U.S.C. 1094(a)) is amended
by adding at the end the following:
‘‘(30)(A) The institution will carry out the following:
‘‘(i) Adopt policies that make any of the following documentation sub-
mitted by an individual sufficient to establish that such individual is an in-
dividual with a disability:
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‘‘(I) Documentation that the individual has had an individualized
education program (IEP) in accordance with section 614(d) of the Indi-
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15
viduals with Disabilities Education Act (20 U.S.C. 1414(d)), including
an IEP that may not be current on the date of the determination that
the individual has a disability. The institution may ask for additional
documentation from an individual who had an IEP but who was subse-
quently evaluated and determined to be ineligible for services under
the Individuals with Disabilities Education Act, including an individual
determined to be ineligible during elementary school.
‘‘(II) Documentation describing services or accommodations provided
to the individual pursuant to section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 794) (commonly referred to as a ‘Section 504 plan’).
‘‘(III) A plan or record of service for the individual from a private
school, a local educational agency, a State educational agency, or an in-
stitution of higher education provided in accordance with the Ameri-
cans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.).
‘‘(IV) A record or evaluation from a relevant licensed professional
finding that the individual has a disability.
‘‘(V) A plan or record of disability from another institution of higher
education.
‘‘(VI) Documentation of a disability due to service in the uniformed
services, as defined in section 484C(a).
‘‘(ii) Adopt policies that are transparent and explicit regarding informa-
tion about the process by which the institution determines eligibility for ac-
commodations.
‘‘(iii) Disseminate such information to students, parents, and faculty in an
accessible format, including during any student orientation and making
such information readily available on a public website of the institution.
‘‘(B) Nothing in this paragraph shall be construed to preclude an institution
from establishing less burdensome criteria than that described in subparagraph
(A) to establish an individual as an individual with a disability and therefore
eligible for accommodations.’’.
SEC. 504. AUTHORIZATION OF FUNDS FOR THE NATIONAL CENTER FOR INFORMATION AND
TECHNICAL SUPPORT FOR POSTSECONDARY STUDENTS WITH DISABILITIES.
Section 777(a) of the Higher Education Act of 1965 (20 U.S.C. 1140q(a)) is amend-
ed—
(1) in paragraph (1), by striking ‘‘From amounts appropriated under section
778,’’ and inserting ‘‘From amounts appropriated under paragraph (5),’’; and
(2) by adding at the end the following:
‘‘(5) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appro-
priated to carry out this subsection $2,000,000 for each of fiscal years 2023
through 2027.’’.
SEC. 505. INCLUSION OF INFORMATION ON STUDENTS WITH DISABILITIES.
Section 487(a) of the Higher Education Act of 1965 (20 U.S.C. 1094(a)), as amend-
ed by section 503, is further amended by adding at the end the following:
‘‘(31) The institution will submit, for inclusion in the Integrated Postsec-
ondary Education Data System (IPEDS) or any other Federal postsecondary in-
stitution data collection effort, key data related to undergraduate students en-
rolled at the institution who are formally registered as students with disabil-
ities with the institution’s office of disability services (or the equivalent office),
including the total number of students with disabilities enrolled, the number of
students accessing or receiving accommodations, the percentage of students
with disabilities of all undergraduate students, and the total number of under-
graduate certificates or degrees awarded to students with disabilities. An insti-
tution shall not be required to submit the information described in the pre-
ceding sentence if the number of such students would reveal personally identifi-
able information about an individual student.’’.
SEC. 506. RULE OF CONSTRUCTION.
None of the amendments made by this title shall be construed to affect the mean-
ing of the terms ‘‘reasonable accommodation’’ or ‘‘record of impairment’’ under the
Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) or the rights or
remedies provided under such Act.
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16
TITLE VI—STRENGTHENING BEHAVIORAL
HEALTH BENEFITS ACT
SECTION 601. SHORT TITLE.
This title may be cited as the ‘‘Strengthening Behavioral Health Benefits Act’’.
SEC. 602. ENFORCEMENT OF MENTAL HEALTH AND SUBSTANCE USE DISORDER REQUIRE-
MENTS.
(a) IN GENERAL.—Section 502(a) of the Employee Retirement Income Security Act
of 1974 (29 U.S.C. 1132(a)) is amended—
(1) in paragraph (10), by striking ‘‘or’’ at the end;
(2) in paragraph (11), by striking the period at the end and inserting ‘‘; or’’;
and
(3) by adding at the end the following:
‘‘(12) in any case relating to the provision of mental health benefits and sub-
stance use disorder benefits under a group health plan or under group health
insurance coverage offered by a health insurance issuer in connection with a
group health plan (as such terms are defined in section 733), by the Secretary,
or by a participant, beneficiary, or fiduciary, to enforce any provision of this
title or the terms of the plan or coverage relating to such benefits against a
group health plan, a health insurance issuer, a fiduciary of a plan, or any other
person that contracts with a group health plan to provide group health insur-
ance coverage or assistance in the administration of a group health plan (in-
cluding a third party administrator, managed behavioral health organization,
and a pharmacy benefit manager), if such person participates in or conceals a
violation of any requirement of part 7 relating to such benefits or a wrongful
denial of a claim for mental health benefits or substance use disorder benefits
under the terms of the plan or coverage, to obtain appropriate relief, in addition
to any other relief otherwise available under this section, including—
‘‘(A) to recover all losses to participants and beneficiaries;
‘‘(B) to reform impermissible plan or coverage terms and policies (as writ-
ten or in operation) in accordance with the requirements of this title and
its implementing regulations; or
‘‘(C) to ensure the readjudication of claims and payment of benefits in ac-
cordance with the plan or coverage terms without any impermissible limita-
tion, plan or coverage term, or policy.’’.
(b) CLARIFICATION OF GENERAL ENFORCEMENT AUTHORITIES.—
(1) ACTIONS BROUGHT BY A PARTICIPANT, BENEFICIARY, OR FIDUCIARY.—Section
502(a)(3) of such Act (29 U.S.C. 1132(a)(3)) is amended—
(A) by striking ‘‘or (B)’’ and inserting ‘‘(B)’’; and
(B) by inserting before the semicolon at the end the following: ‘‘, or (C)
to require re-adjudication and payment of benefits to remedy violations of
this title notwithstanding the availability of relief under other provisions of
this title’’.
(2) ACTIONS BROUGHT BY THE SECRETARY.—Section 502(a)(5) of such Act (29
U.S.C. 1132(a)(5)) is amended—
(A) by striking ‘‘or (B)’’ and inserting ‘‘(B)’’; and
(B) by inserting before the semicolon at the end the following: ‘‘, or (C)
to require re-adjudication and payment of benefits to remedy violations of
this title notwithstanding the availability of relief under other provisions of
this title’’.
(c) EXCEPTION TO THE GENERAL PROHIBITION ON ENFORCEMENT.—Section
502(b)(3) of such Act (29 U.S.C. 1132(b)(3)) is amended—
(1) by inserting ‘‘, and except with respect to enforcement by the Secretary
of section 712 or any other provision of part 7 in any case relating to mental
health benefits and substance use disorder benefits’’ after ‘‘under subsection
(c)(9))’’; and
(2) by striking ‘‘706(a)(1)’’ and inserting ‘‘733(a)(1)’’.
(d) DEFINITIONS.—Part 7 of title I of such Act (29 U.S.C. 1181 et seq.) is amend-
ed—
(1) in section 712(e), in the matter preceding paragraph (1), by inserting ‘‘and
section 502(a)(12)’’ after ‘‘this section’’; and
(2) in section 733—
(A) in subsection (a), in the matter preceding paragraph (1), by inserting
‘‘and section 502(a)(12)’’ after ‘‘this part’’; and
(B) in subsection (b), in the matter preceding paragraph (1), by inserting
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‘‘and section 502(a)(12)’’ after ‘‘this part’’.
(e) FUNDING.—
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(1) IN GENERAL.—In addition to amounts otherwise available, there are appro-
priated (out of any money in the Treasury not otherwise appropriated) to the
Department of Labor for fiscal year 2023, to remain available until September
30, 2032, $275,000,000, of which—
(A) $240,000,000 shall be for the Employee Benefits Security Administra-
tion; and
(B) $35,000,000 shall be for the Solicitor of Labor.
(2) USE OF APPROPRIATED FUNDS.—Amounts made available under paragraph
(1) may be used for audits and investigations, enforcement actions, litigation ex-
penses, issuance of regulations or guidance, and any other Departmental activi-
ties relating to section 712 of the Employee Retirement Income Security Act of
1974 and any other provision of title I of such Act relating to mental health and
substance use disorder benefits.
TITLE VII—EMPLOYEE AND RETIREE ACCESS
TO JUSTICE ACT
SECTION 701. SHORT TITLE.
This title may be cited as the ‘‘Employee and Retiree Access to Justice Act’’.
SEC. 702. UNENFORCEABLE ARBITRATION CLAUSES, CLASS ACTION WAIVERS, REPRESENTA-
TION WAIVERS, AND DISCRETIONARY CLAUSES.
(a) IN GENERAL.—Section 502 of the Employee Retirement Income Security Act of
1974 (29 U.S.C. 1132) is amended by adding at the end the following:
‘‘(n)(1) In any civil action brought by, or on behalf of, a participant or beneficiary
pursuant to this section or with respect to a common law claim involving a plan or
plan benefit, notwithstanding any other provision of law—
‘‘(A) no predispute arbitration provision shall be valid or enforceable if it re-
quires arbitration of a matter related to a claim brought under this section;
‘‘(B) no postdispute arbitration provision shall be valid or enforceable unless—
‘‘(i) the provision was not required by any person, obtained by coercion
or threat of adverse action, or made a condition of participating in a plan,
receiving benefits under a plan, or receiving any other employment, work,
or any employment-related or work-related privilege or benefit;
‘‘(ii) each participant or beneficiary agreeing to the provision was in-
formed, through a paper notice, in a manner reasonably calculated to be un-
derstood by the average plan participant, of the right of the participant or
beneficiary under subparagraph (C) to refuse to agree to the provision with-
out retaliation or threat of retaliation;
‘‘(iii) each participant or beneficiary agreeing to the provision so agreed
after a waiting period of not fewer than 45 days, beginning on the date on
which the participant or beneficiary was provided both the final text of the
provision and the disclosures required under clause (ii); and
‘‘(iv) each participant or beneficiary agreeing to the provision affirma-
tively consented to the provision in writing;
‘‘(C) no covered provision shall be valid or enforceable, if prior to a dispute
to which the covered provision applies, a participant or beneficiary undertakes
or promises not to pursue, bring, join, litigate, or support any kind of individual,
joint, class, representative, or collective claim available under this section in
any forum that, but for such covered provision, is of competent jurisdiction;
‘‘(D) no covered provision shall be valid or enforceable, if after a dispute to
which the covered provision applies arises, a participant or beneficiary under-
takes or promises not to pursue, bring, join, litigate, or support any kind of indi-
vidual, joint, class, representative, or collective claim under this section in any
forum that, but for such covered provision, is of competent jurisdiction, unless
the covered provision meets the requirements of subparagraph (B); and
‘‘(E) no covered provision related to a plan other than a multiemployer plan
shall be valid or enforceable that purports to confer discretionary authority to
any person with respect to benefit determinations or interpretation of plan lan-
guage, or to provide a standard of review of such determinations or interpreta-
tion by a reviewing court in an action brought under this section that would
require anything other than de novo review of such determinations or interpre-
tation.
‘‘(2) In this subsection—
‘‘(A) the term ‘covered provision’ means any document, instrument, or agree-
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ment related to a plan or plan benefit, regardless of whether such provision ap-
pears in a plan document or in a separate agreement;
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‘‘(B) the term ‘predispute arbitration provision’ means a covered provision
that requires a participant or beneficiary to arbitrate a dispute related to the
plan or an amendment to the plan that had not yet arisen at the time such pro-
vision took effect;
‘‘(C) the term ‘postdispute arbitration provision’ means a covered provision
that requires a participant or beneficiary to arbitrate a dispute related to the
plan or an amendment to the plan that arose before the time such provision
took effect; and
‘‘(D) the term ‘retaliation’ means any action in violation of section 510.
‘‘(3)(A) Any dispute as to whether a covered provision that requires a participant
or beneficiary to arbitrate a dispute related to a plan is valid and enforceable shall
be determined by a court, rather than an arbitrator, regardless of whether any con-
tractual provision purports to delegate such determinations to the arbitrator and ir-
respective of whether the party resisting arbitration challenges the arbitration
agreement specifically or in conjunction with other terms of the contract containing
such agreement.
‘‘(B) For purposes of this subsection, a dispute shall be considered to arise only
when a plaintiff has actual knowledge (within the meaning of such term in section
413) of a breach or violation giving rise to a claim under this section.’’.
(b) REGULATIONS.—The Secretary of Labor may promulgate such regulations as
may be necessary to carry out the amendment made by subsection (a), including
providing for the form and content of notices required pursuant to such amendment.
SEC. 703. PROHIBITION ON MANDATORY ARBITRATION CLAUSES, CLASS ACTION WAIVERS,
REPRESENTATION WAIVERS, AND DISCRETIONARY CLAUSES.
Section 402 of the Employee Retirement Income Security Act of 1974 (29 U.S.C.
1102) is amended by adding at the end the following:
‘‘(d)(1) No covered person may—
‘‘(A) require participants or beneficiaries to agree to a predispute arbitration
provision as a condition for participation in, or receipt of benefits under, a plan;
‘‘(B) agree to a postdispute arbitration provision with a participant or bene-
ficiary with respect to a plan or plan benefit unless the conditions of clauses
(i) through (iv) of section 502(n)(1)(B) are satisfied with respect to such provi-
sion; or
‘‘(C) agree to any other covered provision with respect to a plan or plan ben-
efit under any circumstances under which such provision would not be valid
and enforceable under subparagraphs (C) through (E) section 502(n)(1).
‘‘(2) In this subsection—
‘‘(A) the term ‘covered person’ means—
‘‘(i) a plan;
‘‘(ii) a plan sponsor;
‘‘(iii) an employer; or
‘‘(iv) a person engaged by a plan for purposes of administering or oper-
ating the plan; and
‘‘(B) the terms ‘covered provision’, ‘predispute arbitration provision’ and
‘postdispute arbitration provision’ have the meanings given such terms in sec-
tion 502(n)(2).’’.
SEC. 704. EFFECTIVE DATE.
(a) IN GENERAL.—The amendments made by sections 702 and 703 shall take effect
on the date of enactment of this Act and shall apply with respect to any dispute
or claim that arises or accrues on or after such date, including any dispute or claim
to which a provision predating such date applies, regardless of whether plan docu-
ments have been updated in accordance with such amendments.
(b) ENFORCEMENT WITH RESPECT TO PLAN DOCUMENT UPDATES.—Notwith-
standing subsection (a), no person shall be deemed to be in violation of such amend-
ments on account of plan documents that have not been updated in accordance with
such amendments until after the beginning of the first plan year that begins on or
after the date that is 1 year after the date of enactment of this Act, provided that
such person acts in accordance with such amendments during the period in which
the plan documents have not been updated.
PURPOSE AND SUMMARY
The purpose of H.R. 7780, the Mental Health Matters Act, is to
improve access to behavioral health services for children, students,
and workers. H.R. 7780 responds to the growing behavioral health
needs of communities across the country by investing in access to
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behavioral health services, equipping schools to better respond to
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19
the needs of students, and improving access to behavioral health
benefits in job-based health coverage.
COMMITTEE ACTION
116TH CONGRESS
On February 6, 2019, the Committee held a hearing titled ‘‘Ex-
amining Threats to Workers with Preexisting Conditions’’ which
discussed in part mental health benefits. The Committee heard tes-
timony from: Ms. Sabrina Corlette, Research Professor with the
Center on Health Insurance Reforms, Georgetown University
Health Policy Institute, Washington, D.C.; Mr. Chad Riedy, Alexan-
dria, VA; Ms. Grace-Marie Turner, President, Galen Institute,
Paeonian Springs, VA; and Dr. Rahul Gupta, Senior Vice President
and Chief Medical and Health Officer, March of Dimes, Arlington,
VA.
On September 11, 2019, the Early Childhood, Elementary, and
Secondary Education (ECESE) Subcommittee held a hearing titled
‘‘The Importance of Trauma-Informed Practices in Education to As-
sist Students Impacted by Gun Violence and Other Adversities’’
which discussed the trauma students bring to and experience in
school, and how it effects their behavioral health and school per-
formance. The Committee heard testimony from: Dr. Nadine Burke
Harris, Surgeon General for the State of California, San Francisco,
CA; Dr. Ingrida Barker, Associate Superintendent, McDowell Coun-
ty Schools, Welch, WV; Ms. Joy Hofmeister, State Superintendent
of Public Instruction, Oklahoma State Department of Education,
Oklahoma City, OK; and Dr. Janice K. Jackson, Chief Executive
Officer, Chicago Public Schools, Chicago, IL.
On June 22, 2020, the Committee held a hearing titled ‘‘Inequi-
ties Exposed: How COVID–19 Widened Racial Inequities in Edu-
cation, Health, and the Workforce’’ on how existing disparities in
health and education fields have been exacerbated by the COVID–
19 pandemic. The Committee heard testimony from Dr. Camara P.
Jones, Adjunct Professor, Rollins School of Public Health at Emory
University; Senior Fellow and Adjunct Associate Professor, More-
house School of Medicine; Past President, American Public Health
Association, Atlanta, GA; Dr. Valerie Rawlston Wilson, Director,
Program on Race, Ethnicity, and the Economy, Economic Policy In-
stitute, Silver Spring, MD; Mr. Avid Roy, Co-Founder and Presi-
dent, The Foundation for Research on Equal Opportunity, Austin,
TX; and Mr. John B. King, Jr., President and CEO, The Education
Trust, Washington, D.C.
117TH CONGRESS
On March 25, 2021, the Early Childhood, Elementary, and Sec-
ondary Education (ECESE) Subcommittee held a hearing titled
‘‘Lessons Learned: Charting the Path to Educational Equity Post-
COVID–19’’ to examine how the COVID–19 pandemic has impacted
communities and discuss the most effective methods of ensuring
the nation’s public schools reopen and recover equitably. The Sub-
committee heard testimony from Mr. Mark Morial J.D., President
and Chief Executive Officer, National Urban League, New York,
NY; Mrs. Jennifer Dale, Parent, Lake Oswego, OR; Selene
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Almazan, Esq., Legal Director, Council of Parent Attorneys and Ad-
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20
vocates, Inc., Towson, MD; and Alberto Carvalho, Superintendent
of Schools, Miami-Dade County Public Schools, Miami, FL.
On April 15, 2021, the Subcommittee on Health, Employment,
Labor, and Pensions (HELP Subcommittee) held a hearing titled
‘‘Meeting the Moment: Improving Access to Behavioral and Mental
Health Care’’ to examine barriers to access to behavioral health
care, particularly limited coverage of mental health and substance
use disorder treatment and the importance of improving enforce-
ment of mental health parity laws. The Subcommittee heard testi-
mony from Dr. Brian Smedley, Chief of Psychology in the Public
Interest, American Psychological Association, Washington, DC; Dr.
Christine Yu Moutier, Chief Medical Officer, American Foundation
for Suicide Prevention, New York, NY; Mr. James Gelfand, Senior
Vice President, Health Policy, The ERISA Industry Committee,
Washington, DC; and Dr. Meiram Bendat, Founder, Psych-Appeal,
Santa Barbara, CA.
On September 9, 2021, the ECESE Subcommittee held a hearing
titled, ‘‘Back to School: Highlighting Best Practices for Safely Re-
opening Schools’’ which discussed the conditions under which
schools were beginning to reopen nationally, and the state of stu-
dents and teachers returning to school. The Subcommittee heard
testimony from Dr. Jesus F. Jara, Superintendent of Schools, Clark
County School District, Las Vegas, NV; Ms. Denise Forte, Interim
Chief Executive Officer, The Education Trust, Washington, D.C.;
Mr. David Zweig, Journalist, The Atlantic, New York Magazine,
Wired Magazine, Hudson, NY; and Dr. Ashish K. Jha, Dean & Pro-
fessor of Health Services, Policy & Practice, Brown University,
Providence, RI.
On February 16, 2022, the ECESE Subcommittee held a hearing
titled ‘‘Serving All Students: Promoting a Healthier, More Sup-
portive School Environment’’ to discuss practices in use in public
schools that are harmful to the mental health of students. The Sub-
committee heard testimony from: Ms. Kristen Harper, Vice Presi-
dent for Public Policy and Engagement, Child Trends; Mr. Guy Ste-
phens, Founder and Executive Director, Alliance Against Seclusion
and Restraint; Ms. Morgan Craven, J.D., National Director of Pol-
icy, Advocacy and Community Engagement, Intercultural Develop-
ment Research Association; and, Mr. Max Eden, Research Fellow,
American Enterprise Institute.
On March 1, 2022, the HELP Subcommittee held a hearing titled
‘‘Improving Retirement Security and Access to Mental Health Ben-
efits’’ to examine issues affecting access to benefits under private
sector employee retirement and health benefit plans, including bar-
riers to coverage of mental health services. The Subcommittee
heard testimony from Ms. Amy Matsui, Director of Income Security
and Senior Counsel, National Women’s Law Center, Washington,
DC; Ms. Karen Handorf, Senior Counsel, Berger Montague, Alexan-
dria, VA; Mr. Andrew Biggs, Senior Fellow, American Enterprise
Institute, Washington, DC; and Mr. Aron Szapiro, Head of Retire-
ment Studies and Public Policy, Morningstar, Inc. and Morningstar
Investment Management LLC, Chicago, IL.
On May 17, 2022, Rep. Mark DeSaulnier (D–CA–11) introduced
H.R. 7780, the Mental Health Matters Act. The bill was referred to
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the Committee on Education and Labor.
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On May 18, 2022, the Committee considered H.R. 7780 in legisla-
tive session and reported it favorably, as amended, to the House of
Representatives by a vote of 26 Yeas to 18 Nays. The Committee
considered the following amendments to H.R. 7780:
• Rep. DeSaulnier offered an amendment in the nature of a
substitute to make conforming and technical changes. The
amendment was adopted by voice vote.
• Rep. Rick Allen (R–GA–12) offered an amendment in the
nature of a substitute to strike the bill text and replace it with
a new program administered by the Department of Education
that would award competitive grants to state educational agen-
cies to address the mental health needs of school. The amend-
ment was defeated by a vote of 17 Yeas and 26 Nays.
• Rep. Mary Miller (R–IL–15) offered an amendment to
strike language regarding preparing mental health service pro-
viders to meet the needs of LGBTQ+ students. The amendment
was defeated by a vote of 17 Yeas and 26 Nays.
• Rep. Allen offered an amendment to make implementation
of the Strengthening Behavioral Health Benefits Act condi-
tional on the Department of Labor issuing a rule on mental
health parity requirements. The amendment also strikes the
additional funding for parity enforcement. The amendment was
defeated by a vote of 17 Yeas and 27 Nays.
• Rep. Diana Harshbarger (R–TN–01) offered an amendment
to remove the bill’s multiemployer benefits plan exemption
from the bill’s prohibition on discretionary clauses in employee
benefit plans. The amendment was defeated by a vote of 18
Yeas and 26 Nays.
COMMITTEE VIEWS
Communities across the United States are grappling with a dev-
astating mental health crisis, which has only been exacerbated in
recent years due to two public health emergencies—the opioid cri-
sis and the COVID–19 pandemic. Barriers to access to behavioral
health services vary and create complex challenges for vulnerable
families, but Congress has tools at its disposal to better support
students, workers, and communities. H.R. 7780 takes important
steps to reduce the inequities caused by these barriers and include
policies and priorities to meet the needs of our communities. Spe-
cifically, H.R. 7780 includes language from bills championed by
members of the Committee, which are described below.
SUPPORTING THE BEHAVIORAL HEALTH NEEDS OF STUDENTS
AND YOUTH
According to a recent CDC report, every year, 20 percent of all
children are identified with a mental health condition, while 40
percent of all children will meet criteria for a mental health condi-
tion by age 18.1 Examining data from 2013 to 2019, the same re-
port found that among adolescents aged 12–17 years, 1 in 5 had
experienced a major depressive episode.2 A separate CDC report
1 Rebecca Bitsko et al., Mental Health Surveillance Among Children—United States, @013–
2019, 71 Mortality & Morbidity Wkly. Rpt., Feb. 25, 2022, at 4, https://www.cdc.gov/mmwr/
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volumes/71/su/pdfs/su7102a1-H.pdf.
2 Id. at 2.
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22
highlighted the increase in poor mental health and suicide behav-
iors among U.S. high school students over roughly the last decade.3
Among high school students in 2019, the report found that more
than 1 in 3 reported feeling sad or hopeless, an increase of 40 per-
cent over the 2009 figure.4 Equally distressing, nearly 1 in 5 high
school students in 2019 had seriously considered attempting sui-
cide.5 On the other end of the age spectrum, findings indicate that
there is evidence that even very young children experience mental
health conditions.6
Members of marginalized communities often face additional chal-
lenges that impact mental health. Between 2009 and 2019, lesbian,
gay, and bisexual students were four times more likely to have at-
tempted suicide than their heterosexual peers.7 Focusing specifi-
cally on transgender youth, a national quantitative cross-sectional
survey published in 2020, found they are twice as likely to experi-
ence depression, seriously consider suicide, and attempt suicide
compared to cisgender, lesbian, gay, bisexual, queer and ques-
tioning youth.8 It is important to note that LGBTQ+ identities are
not in themselves the cause of such challenges. Rather, these high-
er rates likely reflect the impact of bias, discrimination, family re-
jection, and other stressors.9 COVID–19 has placed additional
stressors on many children and young people and has dispropor-
tionately impacted communities of color. Over 150,000 children
have lost a parent or caregiver to COVID–19, and about 65 percent
of all youth experiencing COVID–19 orphanhood are children of
color.10
In addition to losing parents 11 family members,12 children of
color have been disproportionately impacted by long-term COVID–
3 Ctrs. for Disease Control & Prevention, Youth Risk Behavior Survey Data Summary &
Trends Report: 2009–2019 6 (2019), https://www.cdc.gov/healthyyouth/data/yrbs/pdf/
YRBSDataSummaryTrendsReport2019-508.pdf.
4 Id. at 60–61.
5 Id. at 62.
6 See Ruth Shim, et al., Epidemic Rates of Child and Adolescent Mental Health Disorders Re-
quire an Urgent Response, 149 Pediatrics 5 April 26, 2022 at 1, https://publications.aap.org/
pediatrics/article/149/5/e2022056611/184904/Epidemic-Rates-of-Child-and-Adolescent-Mental.
7 See Id. at 684.
8 Myeshia Price-Feeney et al., Understanding the Mental Health of Transgender and Non-
binary Youth, 66 J. of Adolescent Health 684, 689 (2020), https://www.jahonline.org/article/
S1054-139X(19)30922-X/fulltext.
9 See, e.g., Joanna Almeida, et al., Emotional Distress Among LGBT Youth: The Influence of
Perceived Discrimination Based on Sexual Orientation, 38 J. of Youth & Adolescence 1001–14
(2009).
10 See, Dan Treglia, et al, Hidden Pain: Children Who Lost a Parent or Caregiver to COVID–
19 and What the Nation Can Do to Help Them, COVID Collaborative, (Dec. 2021), https://
www.covidcollaborative.us/assets/uploads/img/HIDDEN-PAIN-FINAL.pdf; Press Release, Ctrs.
for Disease Control & Prevention, The Hidden U.S. COVID–19 Pandemic: Orphaned Children—
More than 140,000 U.S. Children Lost a Primary or Secondary Caregiver Due to the COVID–
19 Pandemic (October 2021), https://www.cdc.gov/media/releases/2021/p1007-covid-19-
orphaned-children.html.
11 See Susan D. Hillis, et al., COVID–19-Associated Orphanhood and Caregiver Death in the
United States. Pediatrics, https://publications.aap.org/pediatrics/article/148/6/e2021053760/
183446/COVID-19-Associated-Orphanhood-and-Caregiver-Death.
12 Mike Stobbe, More than 120,000 U.S. kids had caregivers die during pandemic, (October
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7, 2021), Associated Press, https://apnews.com/article/coronavirus-pandemic-science-pandemics-
covid-19-pandemic-race-and-ethnicity-72ab35ef81250e5007f5674d7e0af73d.
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19 complications,13 food insecurity,14 housing instability,15 and
community violence 16—all factors that contribute to adverse men-
tal health outcomes. Improving equitable access to quality mental
health services will provide critical support to children experi-
encing traumatic stress, anxiety, depression, and other mental
health conditions.17
To highlight the urgent mental health needs of children and
youth, the American Academy of Pediatrics, the American Academy
of Child and Adolescent Psychiatry, and the Children’s Hospital As-
sociation declared a national emergency in child and adolescent
mental health in October 2021.18 In order to respond to this na-
tional emergency, H.R. 7780 includes important Committee prior-
ities to better support our nation’s students, children, and edu-
cators during this national emergency.
Supporting Early Childhood Mental Health
H.R. 7780 includes the text of the Early Childhood Mental
Health Support Act, which was first introduced in the 116th Con-
gress by Rep. Mark DeSaulnier (D–CA–11), Rep. Doris Matsui (D–
CA–06) and Rep. Joe Kennedy III (D–MA–04). The bill was reintro-
duced in the 117th Congress by Rep. DeSaulnier, Rep. Matsui, and
Rep. Ayanna Pressley (D–MA–07). The legislation aims to improve
access to mental health supports for both children and staff in
Head Start programs by requiring the U.S. Department of Health
and Human Services (HHS) to identify evidence-based interven-
tions for Head Start programs and help Head Start agencies imple-
ment these interventions to improve the health of children and
staff.
The targeted funding and support of the Early Childhood Mental
Health Support Act comes at a critical time for Head Start pro-
grams. The COVID–19 pandemic and opioid crisis have taken a se-
rious toll on students’ social and emotional development, leading to
an increase in the number of children experiencing trauma enter-
ing Head Start.19 As a result, children are entering Head Start
with higher needs and contributing to stressful working conditions
for staff; these factors, coupled with low compensation, are leading
13 Jason Kane, Rising number of children struggle with COVID’s effects, especially in Black
and Latino communities, PBS News Hour, (July 23, 2021), https://www.pbs.org/newshour/show/
rising-number-of-children-have-long-haul-covid-especially-in-black-and-latino-communities.
14 Jiying Ling, Paige Duren, Lorraine Robbins, Food Insecurity and Mental Well-Being Among
Low-Income Families During COVID–19 Pandemic, (September 2022), American Journal of
Health Promotion, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9014344/pdf/
10.1177_08901171221089627.pdf.
15 U.S. Department of Housing and Urban Development, Office of Policy Development and Re-
search, Promoting Mental Health Through Housing Stability, (May 13, 2022), https://
www.huduser.gov/portal/pdredge/pdr-edge-trending-053122.html.
16 Eunice Larbi, Hannah Berendzen, et al., Substance Abuse and Mental Health Services Ad-
ministration, Coping with Community Violence Together, (July 27, 2022), https://
www.samhsa.gov/blog/coping-community-violence-together.
17 Cf. The Nat’l Child Traumatic Stress Network, What is Child Traumatic Stress? (2003),
https://www.samhsa.gov/sites/default/files/programs_campaigns/childrens_mental_health/what-is-
child-traumatic-stress.pdf (highlighting the epidemic of childhood traumatic stress).
18 Am. Acad. of Pediatrics, AAP–AACAP–CHA Declaration of a National Emergency in Child
and Adolescent Mental Health, (Oct. 19, 2021) https://www.aap.org/en/advocacy/child-and-
adolescent-healthy-mental-development/aap-aacap-cha-declaration-of-a-national-emergency-in-
child-and-adolescent-mental-health/.
19 See Early Childhood & Knowledge Learning Ctr., Admin. for Child. & Families, U.S. Dep’t
of Health & Hum. Svcs., Introduction to Head Start and the Opioid Crisis, (2020) https://
eclkc.ohs.acf.hhs.gov/mental-health/article/head-start-opioid-crisis; Nat’l Head Start Assn., Con-
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fronting Head Start’s Workforce Crisis 2–5 (2022), https://nhsa.org/wp-content/uploads/2022/05/
2022.05-Workforce-Brief.pdf?source=email.
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to high staff turnover.20 Head Start was founded to help break the
cycle of poverty and provide young children from low-income fami-
lies comprehensive services that meet their emotional, social,
health, nutritional, and educational needs.21 Providing access to
mental health services to young children is an important part of
Head Start’s work. In 2016, roughly one in six U.S. children be-
tween the ages of two and eight years had a diagnosed mental, be-
havioral, or developmental disorder.22 Given the life-long con-
sequences of adverse experiences and trauma on children, it is cru-
cial that Congress develop policies to improve the mental health of
our nation’s young people.
A 2022 survey of over 900 Head Start staff states that class-
rooms are overrun with children exhibiting challenging behaviors,
social-emotional needs, and trauma.23 The Administration for Chil-
dren and Families, the office within HHS that administers Head
Start, needs additional resources both to address the increased
need from the vulnerable populations of children Head Start serves
and to identify the best interventions to set children on a path to
school readiness and lifelong mental health wellness. The evidence
is clear: the sooner children receive support, the more they
thrive.24
Recognizing the Need to Support Children Impacted by Trauma
Trauma is not merely a factor in the lives of young children—
it affects between half and two-thirds of all children in the United
States.25 Described simply by the American Psychological Associa-
tion as ‘‘an emotional response to a terrible event’’, traumatic
events may include the experience of child abuse, community or
school violence, or the sudden loss of a loved one.26 According to
a CDC study analyzing the long-term effects of childhood and ado-
lescent traumatic experiences (also known as adverse childhood ex-
periences, or ACEs) on adult health, health care costs, and life ex-
pectancy, the effects of trauma are predictive of poor mental health
across an individual’s lifespan.27 Furthermore, it is estimated that
the social and economic costs of trauma exposure are hundreds of
billions of dollars per year.28
As a result of experiencing trauma, children may experience dif-
ficulties with concentration, memory, organization, and language
20 See Nat’l Head Start Assn., supra note 15, at 2–5.
21 Early Childhood & Knowledge Learning Ctr., Admin. for Child. & Families, U.S. Dep’t of
Health & Hum. Svcs. Head Start History, (2018), https://eclkc.ohs.acf.hhs.gov/about-us/article/
head-start-history.
22 Ctrs. for Disease Control & Prevention, Data and Statistics on Children’s Mental Health,
(2022), https://www.cdc.gov/childrensmentalhealth/data.html.
23 See Nat’l Head Start Assn., supra note 15, at 5.
24 E.g., Ctr. on the Developing Child, Harvard University, The Impact of Early Adversity on
Children’s Development, 2 (2007), https://developingchild.harvard.edu/resources/inbrief-the-
impact-of-early-adversity-on-childrens-development/ (‘‘While there is no ‘magic age’ for interven-
tion, it is clear that, in most cases, intervening as early as possible is significantly more effective
than waiting.’’).
25 Substance Abuse & Mental Health Svcs. Admin., Understanding Childhood Trauma 1,
(2016), https://store.samhsa.gov/sites/default/files/d7/priv/sma16_4923_0.pdf.
26 Am. Psych. Assn., Trauma (Sept. 13, 2022, 8:15 PM), https://www.apa.org/topics/trauma#.
27 See Ctrs. for Disease Control & Prevention, About the CDC-Kaiser ACE Study, (Sept. 13,
2022, 8:24 PM) https://www.cdc.gov/violenceprevention/aces/about.html (linking adverse child-
hood experiences to increased risk of other negative health outcomes from injury to chronic dis-
ease, infections disease, and risky behaviors generally).
28 Ctrs. for Disease Control & Prevention, Preventing Childhood Adverse Experiences (ACEs):
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Leveraging the Best Available Evidence 7, (2019), https://www.cdc.gov/violenceprevention/pdf/
preventingACES.pdf.
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skills that can make it difficult to adjust to a classroom setting.29
There is also a strong correlation between students who have expe-
rienced trauma and poor learning outcomes.30 Further, teachers,
school leaders, and specialized instructional support personnel can
be deeply impacted by the traumas students bring with them into
the classroom each day and sustain secondary traumatic stress.31
Given the staggering reach of trauma and widespread concerns for
both student and teacher wellbeing and academic learning, it is
crucial that teachers, school leaders, paraprofessionals, school-
based mental health services providers, and other specialized in-
structional support personnel are equipped to successfully work
with students who have been impacted by trauma.
Effective trauma-informed approaches will go beyond trauma-
sensitive teaching practices employed by a single teacher in a class-
room and will encompass school wide practices designed to foster
safe and stable environments, cultivating a space in which stu-
dents, educators, and staff members can thrive.32 Professional de-
velopment programs on trauma-informed best practices direct
school staff to work together to identify student needs for referral
to licensed or certified school-based mental health services pro-
viders, such as school counselors, social workers, and psychologists.
These professional development activities also enable teachers and
school leaders to support student mental health in ways that are
effective yet appropriate given their roles.33
Recognizing trauma’s outsized role as a root cause of major
American public health issues, during the 115th Congress, Reps.
Danny K. Davis (D–IL–07) and Mike Gallagher (R–WI–08)
launched the Trauma-Informed Care Caucus in the U.S. House of
Representatives to increase congressional awareness of trauma-in-
formed care.34 Representatives Davis and Gallagher were then
joined by Senator Richard Durbin (D–NY) and Senator Lisa Mur-
kowski (R–AK) in introducing the Trauma-Informed Care for Chil-
dren and Families Act 35 in both the House and Senate, to support
children who have been exposed to ACEs and other traumas. This
legislation, designed to respond to needs revealed by a Government
Accountability Office (GAO) study requested by Senator Durbin
and Rep. Davis,36 was the basis for trauma-related provisions in-
29 See e.g., Kohske Ogata, Maltreatment Related Trauma Symptoms Affect Academic Achieve-
ment Through Cognitive Functioning: A Preliminary Examination in Japan, 5 J. of Intel. 5
(2017) https://www.mdpi.com/2079-3200/5/4/32.
30 Rachael D. Goodman, et al., Traumatic Stress, Socioeconomic Status, and Academic
Achievement Among Primary School Students 256, (2012) https://www.researchgate.net/profile/
Rachael-Goodman-2/publication/232560514_Traumatic-Stress_Socioeconomic_Status_and_
Academic-Achievement_Among_Primary_School_Students/links/0a85e538fdecdbdf10000000/
Traumatic-Stress-Socioeconomic-Status-and-Academic-Achievement-Among-Primary-School-
Students.pdf.
31 The Nat’l Child Traumatic Stress Network, Secondary Traumatic Stress, http://
www.nctsn.org/resources/topics/secondary-traumatic-stress.
32 Alex Shevrin Venet, The How and Why of Trauma Informed Teaching, Edutopia (Aug. 3,
2018), https://www.edutopia.org/article/how-and-why-trauma-informed-teaching.
33 See First Book, The Impact of COVID–19 on Student Mental Health in Communities of
Need, 24 (Mar. 2022) https://firstbook.org/wp-content/uploads/2022/03/FirstBook_RI_Mental_
Health_Final.pdf?utm_source=firstbook&utm_medium=page&utm_campaign=mentalhealth.
34 Press Release, Office or Rep. Mike Gallagher, Gallagher Launches Bipartisan Trauma-In-
formed Care Caucus (May 21, 2018) https://gallagher.house.gov/media/press-releases/gallagher-
launches-bipartisan-trauma-informed-care-caucus.
35 S. 774 & H.R. 1757, 115th Cong. (2017).
36 U.S. Gov’t Accountability Off., GAO–19–388, Children Affected by Trauma, Selected States
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Report Various Approaches and Challenges to Supporting Children (2019) https://www.gao.gov/
assets/gao-19-388.pdf.
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26
cluded in the Substance Use-Disorder Prevention that Promotes
Opioid Recovery and Treatment (SUPPORT) for Patients and Com-
munities Act. The SUPPORT Patients and Communities Act passed
the House by a bipartisan vote of 396–14, with the support of then-
Committee Chairwoman Virginia Foxx (R–NC–05) 37; it passed the
Senate and was enacted into law in 2018.38 However, the programs
in SUPPORT derived from the Trauma-Informed Care for Children
and Families Act have not yet received funding.
In the 116th Congress, Rep. Jahana Hayes (D–CT–05) introduced
H.R. 4835, the Supporting Trauma-Informed Education Practices
Act,39 which sought to provide mandatory funding for the programs
in SUPPORT derived from the Trauma-Informed Care for Children
and Families Act. H.R. 4835 was eventually included in the Elijah
E. Cummings Lower Drug Costs Now Act (H.R. 3), which passed
the House of Representatives in December 2019.40 In the same
Congress, Reps. Davis and Gallagher continued to champion trau-
ma-informed care, and introduced new legislation, H.R. 3180, the
Resilience Investment, Support, and Expansion (RISE) from Trau-
ma Act, to increase support for children and adults who have been
exposed to trauma by building out the trauma-informed workforce
and increasing resources for communities to support children who
have experienced trauma.
In the 117th Congress, Rep. Hayes reintroduced the Supporting
Trauma-Informed Education Practices Act with several crucial revi-
sions, such as including early childhood education programs as eli-
gible entities to carry out evidence-based trauma-informed prac-
tices, as well as adding evidence-based programs to improve mental
health and resiliency among teachers, school leaders, and other
school personnel as an allowable use of grant funds. This was in
line with recommendations the Early Childhood, Elementary, and
Secondary Education (ECESE) Subcommittee heard from Kristen
Harper, Vice President for Policy and Engagement of Child Trends,
at a February 16, 2022 hearing who said, ‘‘Schools’’ primary strat-
egy should be prevention, with health, mental health, and social
services and relationship-building as schools’ primary tactics.’’ 41
The Supporting Trauma-Informed Education Practices Act was in-
cluded in H.R. 7780.
Based on longstanding bipartisan support for trauma-informed
practices, and previous support for the authorization of trauma in-
formed programs in SUPPORT, it is disappointing to see how these
practices were considered during the markup to H.R. 7780. Under
now-Ranking Member Foxx‘s leadership, the proposed Republican
Amendment in the Nature of a Substitute (ANS) to the Mental
Health Matters Act entirely removed competitive grants to increase
student access to trauma-informed support from the legislation. In
fact, the Republican ANS went so far as to strike the mere men-
tions of ‘‘trauma’’ and ‘‘trauma-informed practices’’ from the bill.
37 H.R. 6, 115th Cong., 2d sess., House Roll Call Vote #288, (June 22, 2018), https://
clerk.house.gov/Votes/2018288.
38 H.R. 6, 115th Cong., 2d sess., Senate Roll Call Vote #221, (Oct. 3, 2018), https://
www.senate.gov/legislative/LIS/roll_call_votes/vote1152/vote_115_2_00221.htm.
39 H.R. 4835, 116th Cong. (2019).
40 H.R. 3, 116th Cong., 1st sess., House Roll Call Vote #682 (Dec. 12, 2019), https://
clerk.house.gov/Votes/2019682.
41 Serving All Students: Promoting a Healthier, More Supportive School Environment: Hearing
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Before the Subcomm. on Early Childhood, Elementary & Secondary Educ. of the H. Comm. on
Educ. & Lab., 117th Cong. (2022).
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Finally, as a result of the SUPPORT Patients and Communities
Act‘s passage in the 115th Congress, and the longtime efforts of the
Congressional Black Caucus‘ Emergency Taskforce on Youth Sui-
cide and Mental Health, an Interagency Task Force on Trauma-In-
formed Care, led by the Substance Abuse and Mental Health Serv-
ices Administration (SAMHSA), was established to ‘‘harness the ex-
pertise, reach, and resources of the federal government to address
the impact that trauma can have on the healthy development of
children.’’ 42 The Committee looks forward to the Task Force’s
forthcoming report and recommendations. Furthermore, under the
Mental Health Matters Act, initiatives, activities, and programs car-
ried out under the bill’s Supporting Trauma-Informed Education
Practices Act provisions must reflect the best practices for trauma-
informed identification, referral and support developed by the Task
Force. The Committee is eager for these efforts to serve as further
exemplars of evidence-based trauma-informed support services and
mental health services.
INVESTING IN THE SCHOOL-BASED BEHAVIORAL HEALTH WORKFORCE
Despite the increasing mental, emotional, and behavioral health
needs of children, students, and youth, only 20 percent of children
with mental, emotional, or behavioral health disorders receive care
from a specialized mental health care provider.43 Among the 4.1
million adolescents ages 12–17 who reported a major depressive
episode in 2020, only 41.6 percent received treatment, according to
SAMHSA.44 Of those who did receive treatment, many received ac-
cess via school-based mental health services.45 Students are more
likely to visit school-based health centers for mental health services
than community mental health centers.46 For students living in
low-income school districts, school-based mental health services
may be one of few resources available in communities with limited
access to health .
Students of color also face additional barriers when seeking qual-
ity mental health services. People of color in the U.S. are more like-
ly to delay or avoid seeking mental health treatment,47 and one of
42 Substance Abuse & Mental Health Svcs. Admin., National Strategy for Trauma-Informed
Care Operating Plan, https://www.samhsa.gov/sites/default/files/trauma-informed-care-operating-
plan.pdf.
43 American Academy of Child and Adolescent Psychiatry, Press Release: Severe Shortage of
Child and Adolescent Psychiatrists Illustrated in AACAP Workforce Maps, (May 4, 2022),
https://www.aacap.org/AACAP/zLatest_News/Se-
vere_Shortage_Child_Adolescent_Psychiatrists_Illustrated_AACAP_Workforce_Maps; See Rich-
ard Martini, et al., Best Principles for Integration of Child Psychiatry into the Pediatric Health
Home: Financing Collaborative Care, 3 American Academy of Child and Adolescent Psychiatry,
(June 2012), https://www.aacap.org/App_Themes/AACAP/docs/clinical_practice_center/ sys-
tems_of_care/
best_principles_for_integration_of_child_psychiatry_into_the_pediatric_health_home_2012.pdf
(‘‘Almost 20% of children in the United States suffer from some form of a mental illness—only
20% of these children receive treatment.’’).
44 Substance Abuse & Mental Health Svcs. Admin., Ctr. for Behavioral Health Stats. & Qual-
ity, Key Substance Use and Mental Health Indicators in the United States: Results from the 2020
National Survey on Drug Use and Health, 41 (October 21, 2021), https://www.samhsa.gov/data/
sites/default/files/reports/rpt35325/NSDUHFFRPDFWHTMLFiles2020/
2020NSDUHFFR1PDFW102121.pdf.
45 See Id. at 42–43.
46 Michael Arenson, et al., The evidence on School-Based Center: A Review, 6 Global Pediatric
Health 1, 3–4 (2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6381423/pdf/
10.1177_2333794X19828745.pdf.
47 Thomas G. McGuire & Jeanne Miranda, Racial and ethnic Disparities in Mental Health
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Care: Evidence and Policy Implications, 3, NIH Public Access, available at https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC3928067/.
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health providers from diverse backgrounds and linguistically and
culturally appropriate mental health services. While more people of
color are training to become mental health providers, racial and
ethnic minorities represent only 26 percent of psychologists under
the age of 36 and 8 percent of those over age 50, according to the
American Psychological Association.48
School-based mental health services providers, which include
school counselors, social workers, and psychologists, are trained
professionals with the appropriate licensure, certification and/or
credentials to serve on the frontlines of the student mental health
crisis and meet student mental health needs. Research has shown
that school-based mental health providers improve school climate
and other positive outcomes for students.49 Schools served by more
school-based mental health services providers see a host of im-
provements, including increased attendance rates, lower rates of
school disciplinary incidents,50 as well as improved academic
achievement and career readiness,51 and improved graduation
rates.52
As part of the its 2015–16 U.S. Department of Education’s Civil
Rights Data Collection (CRDC), the Department’s Office for Civil
Rights (OCR) required, for the first time, that all public schools re-
port the number of social workers, nurses, and psychologists em-
ployed, to supplement existing data collection on the number of
school counselors.53 A comparison of the resulting CRDC data and
recommended student to school-based mental health services pro-
vider ratios indicate an concerning shortage of such professionals
in schools. The 2015–16 data revealed that only two states on aver-
age met the 250:1 student-to-social worker ratio recommended by
the School Social Work Association of America (SSWAA).54 Like-
wise, only three states met the 250:1 student-to-school counselor
ratio recommended by the American School Counselor Associa-
tion.55 For the 2020–21 school year, the national average ratio was
415 students to every one school counselor. Further, the National
Association of School Psychologists (NASP) recommends a 500:1
student-to-school psychologist ratio in order to provide comprehen-
48 American Psychological Association. (2019). Demographics of the U.S. Psychology Work-
force. https://www.apa.org/workforce/data-tools/demographics.
49 See, e.g., Richard E. Cleveland & Christopher A. Sink, Student Happiness, School Climate,
and School Improvement Plans: Implications for School Counseling Practice, 21 Professional
School Counselling 1–10 (2018); Thomas J. Hernandez & Susan R. Seem. A Safe School Climate:
A Systemic Approach and the School Counselor, 7 Professional School Counseling 256–62 (2004);
Joseph G. Kosciw, et al., Who, what, where, when, and why: Demographic and ecological factors
contributing to hostile school climate for lesbian, gay, bisexual, and transgender youth, 38 Jour-
nal of Youth Adolescent 976–88 (2009).
50 Richard T. Lapan et al., Connecticut professional school counselors: College and career
counseling services and smaller ratios benefit students, 16 Professional School Counseling 117–
124. (2012).
51 Richard T. Lapan, et al., The impact of more fully implemented guidance programs on the
school experiences of high school students: A statewide evaluation study, 75 J. of Counseling
& Development, 292–302 (1997).
52 Kevin Tan, et al., The impact of school social workers on high school freshman graduation
among the one hundred largest school districts in the United States, 39 Sch. Soc. Work J., 1–
14 (2015).
53 U.S. Dept. of Educ., Civil Rights Data Collection, Master List of 2015–16 Definitions,
https://ocrdata.ed.gov/assets/downloads/CRDC-Definitions-2015-16.pdf.
54 Pooja Patel & Melissa Clinedinst, State-By-State Student-To-Counselor Ratio Maps By
School District, Nat’l Ass’n, for Coll. Admission Counseling, ii, (2021) https://www.nacacnet.org/
globalassets/documents/publications/research/researchstateratiosreport.pdf.
55 ASCA National Model A Framework For School Counseling Programs, https://
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sive school-based psychological services.56 However, the actual na-
tional ratio for the 2020–21 school year was 1,211 students to one
school psychologist.57 Schools are entering the student mental
health crisis woefully understaffed.
The Committee recognizes the pronounced need schools face to
respond to COVID–19-related stress and trauma as well as existing
and projected student needs for mental health services. Thanks to
passage of the American Rescue Plan Act (ARPA), schools have
more resources to address student mental health.58 Congress pro-
vided more than $120 billion to K–12 schools through the ARPA
Elementary and Secondary School Emergency Relief (ESSER)
Fund. This legislation required that states target at least 20 per-
cent to address learning loss and efforts to address the dispropor-
tionate impact of the COVID–19 pandemic on underserved student
groups’ academic, social and emotional needs.59 Local educational
agencies may use ARPA funds to provide mental health services
and supports.60 As of March 2022, with the help of ESSER funds,
schools have already seen a 65 percent increase in social workers,
and a 17 percent increase in counselors.61 But we must do more.
BUILDING AND SUSTAINING PIPELINE OF SCHOOL-BASED MENTAL
HEALTH SERVICE PROVIDERS
The Committee believes strengthening school-based mental
health programs is necessary to respond to the needs that have
been present and documented since at least 2015–16, and to re-
spond to added stress and trauma brought on by the COVID–19
and the opioid crisis. H.R. 7780 is designed to meet both the exist-
ing and projected student needs for mental health services by in-
vesting in the pipeline of school-based mental health services pro-
viders and targeting funding for the recruitment and retention of
providers. These policies are aligned with recommendations from
NASP for addressing the shortage of school psychologists, rec-
ommendations which could be adapted and applied across school-
based mental health services professions.62 These recommendations
include a focus on recruitment, more opportunities for re-specializa-
tion within graduate programs, and a focus on retention of cur-
rently practicing school psychologists.63 H.R. 7780 also allows for
models that have proven successful to increase the teacher work-
force to be used to increase the school mental health workforce. At
least one state has shown that by collaborating with school psy-
chology faculty and professionals from two different educational
56 Nat’l Ass’n of Sch. Psychs., Shortage of School Psychologists, https://www.nasponline.org/
research-and-policy/policy-priorities/critical-policy-issues/shortage-of-school-psychologists#:∼:text=
NASP%20recommends%20a%20ratio%20of,a%20ratio%20of%201%3A5000.
57 Id.
58 Pub. L. No. 117–2, 135 Stat. 4 (2021).
59 Id. at § 2001(a), (e)(1).
60 Id.
61 Fact Sheet, The White House, President Biden to Announce Strategy to Address Our Na-
tional Mental Health Crisis, As Part of Unity Agenda in his First State of the Union, (Mar. 01,
2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/03/01/fact-sheet-
president-biden-to-announce-strategy-to-address-our-national-mental-health-crisis-as-part-of-
unity-agenda-in-his-first-state-of-the-union/.
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62 Nat’l Ass’n of Sch. Psychs., supra note 56.
63 Id.
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service agencies the state could successfully develop a ‘‘Grow Your
Own’’ program for mental health services personnel.64
To address the outlined student mental health needs, Title II of
the Mental Health Matters Act includes language which would ex-
pand the pipeline of school-based mental health services providers
by establishing a competitive grant program supporting partner-
ships between eligible institutions of higher education and high-
need local education agencies. The legislative language for this
grant program is from the bipartisan Increasing Access to Mental
Health in Schools Act (H.R. 3572), introduced by Rep. Judy Chu
(D–CA–27) and Rep. Brian Fitzpatrick (R–PA–01), with Committee
member Rep. Hayes as an original co-sponsor.
Crucially, Title II of the Mental Health Matters Act recognizes
the importance of recruiting a diverse school-based mental health
services provider workforce by including a new priority for partner-
ships which include Historically Black Colleges and Universities
(HBCUs), Minority-Serving Institutions (MSIs) and Tribally Con-
trolled Colleges and Universities (TCCUs). Title II also allows for
grant funds to be used to increase the diversity of school-based
mental health services providers. It also requires graduates of
these programs who wish to serve in schools to be trained to meet
the needs of LGBTQ+ students as well as students who have been
victims of or witnesses to human trafficking. It is worth noting that
in FY2019, the U.S. Department of Education used a portion of
School Safety National Activities funds to award the first (and thus
far only) cohort of Mental Health Demonstration Grant Program
funds, which have a similar aim to that of Title II’s proposed grant
program. However, this program has not been authorized in stat-
ute.
Title III of the Mental Health Matters Act includes language
which would direct the U.S. Department of Education to award
grants to state educational agencies to recruit and retain school-
based mental health services providers at high-need public elemen-
tary and secondary schools. This language is from the Elementary
and Secondary School Counseling Act (H.R. 6214), introduced by
Reps. Katherine Clark (D–MA–05), with Committee member Rep.
Jahana Hayes as an original co-sponsor.
Title III also updates the Elementary and Secondary Counseling
Act to include crucial reservations for schools operated or funded
by the Bureau of Indian Education (BIE) and schools in the Out-
lying Areas to ensure these schools have resources necessary to
hire and retain school counselors. Title III also requires that as a
condition of receiving funding, states provide an assurance to the
Secretary of Education that the state will award subgrants to LEAs
that serve a significant number of high-need schools. It is worth
noting that ED awarded six state educational agencies School-
Based Mental Health Services Grants, with purposes aligned with
Title III of the Mental Health Matters Act, in FY2020 after Con-
gress increased appropriations for the School Safety National Ac-
tivities program and directed that $10 million be used to increase
the number of counselors, social workers, psychologists, or other
service providers who provide school-based mental health services
64 Stephanie L. Schmitz et al., Increasing School-Based Mental Health Services with a ‘‘Grow
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Your Own’’ School Psychology Program, 26 Contemporary Sch. Psych. 22–33 (2022) https://
link.springer.com/article/10.1007/s40688-020-00348-z.
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to students. However, this Demonstration Grant program has not
yet been authorized in statute.65
With the Mental Health Matters Act including such bold attempts
to increase the much-needed school mental health work force, it is
unfortunate that the Republican ANS aimed to significantly gut
key provisions of both Title II and Title III. Had it passed, the Re-
publican ANS would have removed key targeting provisions, ones
the Committee believes are necessary to support the mental health
needs of students in high-poverty schools and school districts. It is
also worth noting that the Republican ANS would have weakened
provisions to build the pipeline of certified and licensed mental
health professionals and removed references to the specific profes-
sions constituting school-based mental health services providers,
and requirements for their appropriate licensure, certification, and
credentialing.
Further, flying in the face of growing evidence that LGBTQ+ stu-
dents face disproportionate levels of trauma, an amendment offered
at markup by Rep. Miller proposed to remove all mention of
LGBTQ+ students from the bill. LGBTQ+ students, and the unique
traumas they face trying to live their lives, cannot be erased; re-
moving all traces of LGBTQ+ students from the Mental Health
Matters Act would in no way address the pronounced and dis-
proportionate trauma LGBTQ+ students face, nor would it resolve
the barriers they face in accessing care to deal with that trauma.
Finally, in discussing trauma and school-based mental health
services, the Committee must address the trauma produced by the
nationwide epidemic of gun violence in and around our schools and
its effect on the mental health needs of students. On May 25, 2022,
just one week after the Committee marked up the Mental Health
Matters Act, 19 students and two teachers were tragically slain by
a gunman in Uvalde, Texas, in the second-deadliest school shooting
in U.S. history.66 The grief and trauma experienced by students
and the wider community in Uvalde has resonated nationwide, and
demands both immediate support by school-based mental health
services providers, as well as further investments in consistent sup-
ports, which acknowledge the ongoing mental health needs result-
ing from mass shootings such as school shootings.67 The Committee
would be remiss not to state that research has shown that most
people with mental illness are not violent.68 In fact, individuals
with mental illness are more likely to be victims rather than per-
petrators of violence.69 Therefore, while it is important to increase
65 The Committee supports efforts to increase resources and support for the school-based men-
tal health workforce via congressionally-directed funding, or through existing authority at the
Department of Education. But passage of the Mental Health Matters Act lays the groundwork
for a robust authorization of programs to address the dire need in our schools for mental health
services professionals. In doing so, the Committee recognizes it is building off of policies and
practices undertaken by the School-Based Mental Health Services Demonstration Grant pro-
gram and the Mental Health Services Professional Grant program, and hopes that if made in
to law authorizations in H.R. 7780 to expand the school-based mental health workforce would
receive robust appropriations in line with the requisite need.
66 See generally, e.g., Uvalde School Shooting, Texas Tribune, (2022), https://
www.texastribune.org/series/uvalde-texas-school-shooting/ (offering compendium of stories about
the shooting and aftermath).
67 Amy Novotney, Am. Psych. Assn., What Happens to the Survivors, (Sept. 2018), https://
www.apa.org/monitor/2018/09/survivors.
68 Tori DeAngelis, Am. Psych. Assn., Mental illness and violence: Debunking myths, address-
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ing realities, (Apr. 2021), https://www.apa.org/monitor/2021/04/ce-mental-illness.
69 Id.
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32
access to mental health services, such actions should not be seen
as a substitute for much needed common-sense gun control policies.
SUPPORTING STUDENTS WITH DISABILITIES
Section 504 of the Rehabilitation Act of 1973 (Section 504) 70 and
Title II of the Americans with Disabilities Act (ADA) 71 provide that
college students with disabilities are entitled to accommodations
that eliminate barriers to equal access to learning opportunities.
Although disability is fairly prevalent among college students—ap-
proximately 19 percent of all enrolled undergraduates reported
having a disability 72—only a third of these students inform their
college or seek any accommodations.73 Research indicates that
graduation rates for these students are lower than their non-dis-
abled peers, and failure to seek accommodations may play a part
in that gap.74 Reducing impediments to students receiving dis-
ability accommodations will help students with disabilities succeed
in post-secondary education.
Under current law, in order to receive accommodations (e.g., ex-
tended time on tests, note-taking services, permission to record
classes), students must first demonstrate that they have a dis-
ability that is covered by section 504 and the ADA. Once that is
established, the school and the student must determine a reason-
able accommodation that enables the student to perform the essen-
tial functions of the academic program or to enjoy the equal bene-
fits of the program. While many students with disabilities receive
accommodations throughout their elementary and secondary edu-
cation, when they transition to post-secondary education, they must
navigate new requirements to document their disability. Schools
generally require the diagnosis of a disability to be ‘recent’, within
six months for psychiatric disabilities.75 This is true even if when
student has a lifelong disability and received services through the
Individuals with Disabilities Education Act or accommodations
under section 504 when they were in elementary and secondary
school. Evaluations for learning disabilities can be especially costly
and time-consuming for students and their families, and long
waitlists to even receive an evaluation and diagnosis can lead to
delays or to the student abandoning the effort altogether and not
receiving the needed accommodation.76
To help, H.R. 7780 includes the text of the Respond, Innovate,
Support, and Empower (RISE) Act—first introduced in the Senate
in the 114th Congress by Senator Bob Casey (D–PA) and first in-
troduced in the House in the 115th Congress by Rep. Suzanne
Bonamici (D–OR–01) and a bipartisan group of legislators in order
to help students with disabilities, including mental health disabil-
ities, who are transitioning from high school to college.
70 29 U.S.C. § 794.
71 42 U.S.C. § 12132.
72 U.S. Dept. of Educ. Institute of Educ. Sciences, Nat’l Ctr. for Educ. Stats, https://
nces.ed.gov/fastfacts/display.asp?id=60 (last visited May, 25th, 2022).
73 U.S. Dept. of Educ. Institute of Educ. Sciences, Nat’l Ctr. for Educ. Stats, https://
nces.ed.gov/whatsnew/press_releases/4_26_2022.asp (last visited May, 25th, 2022).
74 Fact Sheet, Postsecondary Nat’l Pol’y Inst., Students with Disabilities in Higher Education,
https://pnpi.org/students-with-disabilities-in-higher-education/.
75 Ass’n on Higher Educ. & Disability, Documentation Guidelines, Psychiatric Disorders,
(2008) https://www.ahead.org/about-ahead/about-overview/affiliates/connecticut/documentation
#H.
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76 Nat’l Ctr. for Learning Disabilities, Life with LD: Navigating the Transition to College,
https://www.ncld.org/news/policy-and-advocacy/life-with-ld-navigating-the-transition-to-college/.
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As incorporated in H.R. 7780, the RISE Act makes it easier for
college students with disabilities to access the reasonable accom-
modations they need and to which they are legally entitled. Under
H.R. 7780, colleges and universities would be required to accept a
student’s existing Individualized Education Plan (IEP), 504 plan or
other qualifying documentation from their elementary or secondary
school as sufficient to establish that the student has a disability
which may need accommodation. Additionally, covered institutions
must adopt policies that are transparent and detailed regarding the
process for determining eligibility for accommodations and make
that information available in an accessible format during orienta-
tion and on the college or university’s public-facing website. To fa-
cilitate students receiving accommodations, H.R. 7780 authorizes
$10 million in funding over five years for the National Center for
College Students with Disabilities (NCCSD). The NCCSD provides
students and families with information about available disability
services and offers faculty training and resources on best practices
to support students with disabilities. Finally, the legislation re-
quires covered institutions to report on the number of students
with disabilities being served, the accommodations provided, and
the outcomes for these students.
ENSURING ACCESS TO MENTAL HEALTH AND SUBSTANCE USE
DISORDER BENEFITS
Access to behavioral health care—including treatment for both
mental health and substance use disorder—is an important part of
maintaining overall health and wellness. Mental illnesses are close-
ly linked to physical health problems, such as diabetes, stroke, and
heart disease.77 Individuals living with serious mental illness expe-
rience significantly higher mortality rates than the overall popu-
lation, dying as much as 25 years earlier, usually as a result of
treatable conditions.78 With respect to substance use disorder, a
treatable behavioral health condition, SAMHSA at HHS has found
that about 40.3 million people aged 12 or older had a substance use
disorder within the past year, and more than four out of five Amer-
icans who need treatment for substance misuse do not receive it.79
As the COVID–19 pandemic continues to underscore the impor-
tance of equitable access to quality behavioral health care services,
the number of individuals reporting symptoms of depression or
anxiety increased from 11 percent to 41.1 percent during the height
of the pandemic.80
Having affordable health coverage is critical to accessing care in
America. With the nation’s increasing behavioral health needs, it
77 Ctrs. for Disease Control & Prevention, Mental Health: Learn About Mental Health, https://
www.cdc.gov/mentalhealth/learn/index.htm.
78 Joe Parks, et al., Morbidity and Mortality in People with Serious Mental Illness, National
Association of State Mental Health Program Directors (NASMHPD) Medical Directors Council
at 4 (Oct. 2006), https://www.nasmhpd.org/sites/default/files/Mortality%20and%20Morbidity%20
Final%20Report%208.18.08_0.pdf; see also Nancy H. Liu et al., Excess Mortality in Persons with
Severe Mental Disorders: A Multilevel Intervention Framework and Priorities for Clinical Prac-
tice, Policy and Research Agendas, 16 World Psychiatry 30 (Jan. 26, 2017), https://
onlinelibrary.wiley.com/doi/full/10.1002/wps.20384.
79 Press Release, SAMHSA Releases 2020 National Survey on Drug Use and Health, Sub-
stance Abuse & Mental Health Svcs. Admin, (Oct. 26, 2021), https://www.samhsa.gov/newsroom/
press-announcements/202110260320.
80 Nirmita Panchal et al., The Implications of COVID–19 for Mental Health and Substance
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Use, Kaiser Family Foundation (Feb. 10, 2021), https://www.kff.org/coronavirus-covid-19/issue-
brief/the-implications-of-covid-19-for-mental-health-and-substance-use/.
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34
is imperative to ensure that health coverage adequately covers be-
havioral health. The long-standing tenet of ‘‘parity’’ in behavioral
health care refers to the principle that coverage of mental health
and substance use disorder (MH/SUD) services should be no more
restrictive than coverage of medical and surgical health services.
Congress has taken several steps to improve parity, beginning in
1996 with the Mental Health Parity Act 81 (MHPA), which provided
that annual or lifetime dollar limits for mental health benefits
could not be more restrictive than those imposed on medical and
surgical benefits. In 2008, the Paul Wellstone and Pete Domenici
Mental Health Parity and Addiction Equity Act 82 (MHPAEA)
greatly expanded the parity protections existing in law. In general,
MHPAEA requires that financial requirements and treatment limi-
tations imposed by a group health plan or health insurance issuer
on mental health or substance use disorder benefits must be in
parity with the treatment limitations that apply to medical and
surgical benefits. The requirements of MHPAEA and its imple-
menting regulations extend parity to SUD services and apply to
both quantitative treatment limitations (QTLs), such as co-pay-
ments, as well as non-quantitative treatment limitations (NQTLs),
such as step therapy, prior authorization, formulary design, or
medical management.83 These requirements are applicable to pri-
vate sector employer-sponsored plans through amendments made
by MHPAEA to the Employee Retirement Income Security Act
(ERISA).84
The Patient Protection and Affordable Care Act 85 (ACA) also ad-
vanced parity further in several respects. Most directly, the ACA
applied MHPAEA to the individual market 86 and qualified health
plans,87 and further required that non-grandfathered plans in the
individual and small group markets cover essential health benefits,
including treatment for MH/SUD services.88 Notably, several of the
ACA’s consumer protections, including the preventive services
mandate 89 and the prohibitions on annual and lifetime limits,90
also apply to MH/SUD services, thereby extending additional pro-
tections to the large group market. Congress has taken additional
steps to improve parity in recent years. In 2016, the 21st Century
Cures Act 91 mandated that federal agencies issue additional guid-
ance, develop an action plan to improve enforcement, and audit
plans that commit five or more parity violations. The Consolidated
Appropriations Act, 2021 92 enhanced audit requirements and re-
quired health plans and issuers to perform comparative analyses of
NQTLs and make such analyses available to regulators upon re-
quest.
Despite progress, parity in health benefits remains a challenge—
made all the more pressing by the COVID–19 public health emer-
81 Pub. L. No. 104–204, title VII (1996).
82 Pub. L. No. 110–343, div. C, title V, subtitle B (2008).
83 See Colleen L. Barry et al., A Political History of Federal Mental Health and Addiction In-
surance Parity, 88 Milbank Quarterly 404, 406–407 (2010).
84 29 U.S.C. 1185a.
85 Pub. L. No. 111–148 (as amended by Pub. L. No. 111–152).
86 42 U.S.C. § 300gg–26(c)(4)(A).
87 42 U.S.C. § 18031(j).
88 42 U.S.C. § 18022.
89 42 U.S.C. § 300gg–13.
90 42 U.S.C. § 300gg–11.
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91 Pub. L. No. 144–255, title X (2016).
92 Pub. L. No. 116–260, div. BB, title II (2020).
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35
gency and the associated stressors that the pandemic has placed on
communities around the country.
H.R. 7780 Provides the Department of Labor Clearer Authority to
Enforce Laws to Protect Access to Mental Health and Substance
Use Disorder Benefits for Americans with Job-Based Coverage
On January 25, 2022, the Department of Labor (DOL), in con-
junction with the Departments of Health and Human Services
(HHS) and the Treasury, issued a report to Congress (2022 Report)
about implementation and enforcement of MHPAEA.93 Notably, the
2022 Report summarized findings of widespread noncompliance
with MHPAEA based on reviews conducted by the Departments.
The 2022 Report also included several recommendations for legisla-
tive action that would bolster efforts to enforce the law. In part, it
recommended that Congress amend ERISA to (1) expressly provide
the DOL with the authority to directly pursue parity violations
caused by health insurance issuers, and (2) to ‘‘expressly provide
that participants and beneficiaries, as well as the DOL on their be-
half, may recover amounts lost by participants and beneficiaries
who had their claims denied’’ due to parity violations, ensuring
that they are made whole.94
The 2022 Report is not the first instance that legislative action
has been recommended to authorize the DOL to directly enforce
parity requirements against issuers. The Health, Employment,
Labor, and Pensions (HELP) Subcommittee heard testimony from
witnesses in multiple hearings arguing that this would be an effec-
tive way of bolstering DOL’s enforcement authority and
incentivizing more widespread compliance with the law.95 The
same recommendation was also made during the Trump Adminis-
tration by the President’s Commission on Combatting Drug Addic-
tion and the Opioid Crisis, chaired by then-Governor Chris Christie
(R–NJ).96
On May 13, 2022, Rep. Joe Courtney (D–CT–02) introduced H.R.
7767, the Strengthening Behavioral Health Benefits Act with Com-
mittee Member Rep. Donald Norcross (D–NJ–01) as an original co-
sponsor. The Strengthening Behavioral Health Benefits Act amends
ERISA to adopt the recommendations from the 2022 Report and
also provides $275 million over ten years in mandatory funding to
support oversight, compliance, and enforcement efforts by DOL.
The provisions of the Strengthening Behavioral Health Benefits Act
are incorporated into Title VI of the Mental Health Matters Act.
93 2022 MHPAEA Report to Congress: Realizing Parity, Reducing Stigma, and Raising Aware-
ness: Increasing Access to Mental Health and Substance Use Disorder Coverage, available at
https://www.dol.gov/sites/dolgov/files/EBSA/laws-and-regulations/laws/mental-health-parity/
report-to-congress-2022-realizing-parity-reducing-stigma-and-raising-awareness.pdf.
94 Id. at 51–2. The report also recommended that the DOL be given authority assess civil mon-
etary penalties for MHPAEA noncompliance. Representative Norcross introduced H.R. 1364, the
‘‘Parity Enforcement Act of 2021’’ earlier in the 117th Congress that would provide the DOL
with this authority if enacted.
95 Improving Retirement Security and Access to Mental Health Benefits: Hearing Before the
Subcomm. On Health, Employment, Labor, and Pensions, 117th Cong. (2022) (statement of
Karen Handorf, Senior Counsel, Berger Montague P.C.) at 5, available at https://
edlabor.house.gov/download/handordkarentestimony030122; Meeting the Moment: Improving Ac-
cess to Behavioral and Mental Health Care: Hearing Before the Subcomm. On Health, Employ-
ment, Labor, and Pensions, 117th Cong. (2021) (statement of Dr. Meiram Bendat, Founder,
Psych Appeal, Inc.) at 7, available at https://edlabor.house.gov/download/
moutierchristinetestimony041521.
96 Final Report from The President’s Commission On Combating Drug Addiction And The
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Opioid Crisis, at 72, available at https://trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/
images/Final_Report_Draft_11-915-2017.pdf.
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The Mental Health Matters Act provides meaningful authority to
DOL to address some of the legal loopholes that continue to deny
full parity between MH/SUD services and medical and surgical
health services. DOL is responsible for enforcing ERISA, including
the mental health parity provisions, with respect to more than 2
million private employer-sponsored plans.97 About one-third of indi-
viduals who receive job-based health benefits are covered by an in-
sured plan.98 For insured plans, benefits offered by the plan are
funded through a group insurance policy sold to the plan by a
health insurance issuer and the issuer is also responsible for proc-
essing claims and administering the plan. The other two-thirds of
these individuals are covered by a self-funded plan.99 For self-fund-
ed plans, the employer or other plan sponsor retains the financial
responsibility for paying benefits under the plan, but generally con-
tracts with a health insurance issuer or other administrative serv-
ice provider to process claims and administer the plan. Most em-
ployers with self-insured plans purchase prototype plans from the
same issuers that offer identical coverage to insured plans.100
Unfortunately, ERISA’s civil enforcement scheme fails to suffi-
ciently account for issuers’ significant role with respect to adminis-
tration of both self-funded and insured plans.101 Even though
issuers are often the entity responsible for causing plans’ parity
violations, ERISA expressly prohibits the DOL from enforcing par-
ity requirements against issuers directly.102 If the DOL were able
to directly enforce mental health parity requirements against
issuers, the agency would be able to more effectively leverage its
resources and better protect participants. In part, this is because
whenever possible the agency tries to work with plan service pro-
viders to achieve global corrections, not just for the particular plans
it investigates but for all other plans that contract with the same
service providers.103 If the DOL could compel issuers to make cor-
rections for noncompliant coverage offered to ERISA-covered plans,
they would be able to obtain global corrections for self-funded and
insured plans alike.
In addition to providing DOL with clearer direct enforcement au-
thority to enforce MHPAEA violations, H.R. 7780 also amends
ERISA to make it clear that individuals, and DOL acting on their
97 U.S. Department of Labor, FY 2023 Congressional Budget Justification Employee Benefits
Security Administration (2022), https://www.dol.gov/sites/dolgov/files/general/budget/2023/CBJ-
2023-V2-01.pdf.
98 Employer Health Benefits 2021 Annual Survey, Kaiser Family Foundation, November 10,
2021 at 9, available at https://www.kff.org/health-costs/report/2021-employer-health-benefits-
survey/.
99 Id.
100 Improving Retirement Security and Access to Mental Health Benefits: Hearing Before the
Subcomm. on Health, Labor, and Pensions, 117th Cong. (2022) (statement of Karen Handorf,
Senior Counsel, Berger Montague P.C.) at 5, available at https://edlabor.house.gov/download/
handordkarentestimony030122. See also Meeting the Moment: Improving Access to Behavioral
and Mental Health Care: Hearing Before the Subcomm. On Health, Labor, and Pensions, 117th
Cong. (2021) (statement of Dr. Meiram Bendat, Founder, Psych Appeal, Inc.) at 5, https://
edlabor.house.gov/imo/media/doc/BendatMeiramTestimony041521.pdf.
101 Section 2726 of the Public Health Service (PHS) Act imposes requirements on health insur-
ance issuers that are substantively identical to the parity requirements in ERISA. State insur-
ance regulators are generally responsible for enforcement of these requirements under section
2723 of the PHS Act. State-level enforcement efforts vary widely from state to state. See U.S.
Gov’t Accountability Off., GAO–20–150, Mental Health and Substance Use: State and Federal
Oversight of Compliance with Parity Requirements Varies, available at https://www.gao.gov/
products/gao-20-150.
102 29 U.S.C. 1132(b)(3).
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103 See FY 2021 MHPAEA Enforcement Fact Sheet at 3, available at https://www.dol.gov/sites/
dolgov/files/EBSA/laws-and-regulations/laws/mental-health-parity/mhpaea-enforcement-2021.pdf.
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37
behalf, may obtain retrospective relief in any case involving mental
health or other benefits that they are entitled to under ERISA.
Case law regarding parties’ ability to file lawsuits to recover
mental health and other benefits wrongly denied due to a plan not
complying with ERISA has become muddled and is ripe for clari-
fication. ERISA’s civil enforcement framework includes a private
right of action for participants and beneficiaries, which means that
they are generally able to file lawsuits to ensure that they receive
the benefits that they are entitled to and compel their plan to com-
ply with the law. ERISA also generally provides the DOL with au-
thority to bring these types of lawsuits on participants and bene-
ficiaries’ behalf. There are three interconnected statutory provi-
sions in ERISA that fulfill this purpose:
1. Section 502(a)(1)(B) enables any plan participant or bene-
ficiary to sue to ‘‘recover benefits due to him under the terms
of the plan, to enforce his rights under the terms of the plan,
or to clarify his rights to future benefits under the plan.’’ 104
2. Section 502(a)(3) enables any plan participant or bene-
ficiary to sue ‘‘(A) to enjoin any act or practice which violates
any provision of [ERISA] or the terms of the plan, or (B) to ob-
tain other appropriate equitable relief (i) to redress such viola-
tions, or (ii) to enforce any provisions of [ERISA] or the terms
of the plan.’’ 105
3. Section 502(a)(5) similarly enables the DOL to sue ‘‘(A) to
enjoin any act or practice which violates any provision of
[ERISA] or the terms of the plan, or (B) to obtain other appro-
priate equitable relief (i) to redress such violations, or (ii) to
enforce any provisions of [ERISA].’’ 106
Courts have sometimes recognized a distinction between section
502(a)(1)(B) and section 502(a)(3) by reading them in tandem to
create a two-step process for resolving disputes over benefits that
were wrongfully denied due to a violation of ERISA’s requirements.
For Step 1, participants or beneficiaries can bring a claim under
section 502(a)(3) to have any terms of their plan that violate
ERISA reformed and, for Step 2, they may also bring claims under
section 502(a)(1)(B) to recover the benefits provided by the terms
of the plan, as reformed through relief obtained under section
502(a)(3).107 However, in some cases, courts have taken a simpler
approach and held that plan terms that violate ERISA cannot su-
persede the law and so they are unenforceable and do not need to
be reformed prior to consideration of claims to recover denied bene-
fits under section 502(a)(1)(B).108 However, under either approach,
section 502(a)(1)(B) is the only provision that can be used to ad-
dress recovery of denied benefits by participants.
In Secretary of Labor v. Macy’s, et al., the U.S. District Court for
the Southern District of Ohio recently found new limits on the
DOL’s authority to enforce ERISA requirements.109 In Macy’s, the
DOL attempted to exercise its authority to seek ‘‘appropriate equi-
table relief’’ under section 502(a)(5) to require the defendants to re-
adjudicate claims that it alleges were improperly decided. However,
104 29 U.S.C. 1132(a)(1)(B).
105 29 U.S.C. 1132(a)(3).
106 29 U.S.C. 1132(a)(5).
107 E.g., Cigna Corp. v. Amara et al., 563 U.S. 421 (2011).
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108 See e.g., N.R. v. Raytheon, 24 F.4th 740 (1st Cir. 2022).
109 See Secretary of Labor v. Macy’s, et al., 1:17–cv–541 (S.D. Ohio Nov. 17, 2021).
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the court held that re-adjudication was not a remedy available
under 502(a)(5). Although Macy’s only represents the interpretation
of one district court and others may rightly find that DOL has the
authority to obtain re-adjudication of benefits as a remedy for vio-
lations of ERISA, the Committee sees an interest in making clear
that it is the intent of Congress that this relief be available to the
Secretary. Without this authority, DOL’s ability to fulfill its mis-
sion to protect the rights of participants and beneficiaries would be
significantly curtailed. The success of participants and bene-
ficiaries’ claims should not hinge on whether their claims are prop-
erly brought under ERISA section 502(a)(1)(b) or section 502(a)(3).
As such, H.R. 7780 eradicates any ambiguity and ensures that both
of ERISA’s remedial authority provisions in sections 502 can fully
protect participants and beneficiaries.
Discretionary Clauses Inhibit the Ability of Workers and Retirees to
Enforce their Rights to Mental Health and Other Benefits
Under ERISA-Covered Plans
H.R. 7780, in part, enhances access to mental health and sub-
stance use disorder benefits for individuals with job-based health
coverage by prohibiting discretionary clauses that unfairly advan-
tage plan administrators by denying claimants the opportunity for
de novo review by courts of their benefit denials. H.R. 7780 incor-
porates these protections by including provisions of bicameral legis-
lation, the Employee and Retiree Access to Justice Act of 2022, in-
troduced by Rep. DeSaulnier and Sen. Tina Smith (D–MN) on May
12, 2022.
During the HELP Subcommittee’s March 1, 2022, hearing titled
‘‘Improving Retirement Security and Access to Mental Health Ben-
efits’’ (March 1st Hearing), witnesses testified regarding clauses in
group health plan documents that give plan administrators author-
ity to interpret the terms of the plan and effectively deny plan par-
ticipants and beneficiaries from having their claims for denied ben-
efits reviewed de novo by courts if they choose to bring a lawsuit
under ERISA. In Firestone Tire & Rubber Co. v. Bruch, the Su-
preme Court held that if the plan documents for an ERISA-covered
employee benefit plan expressly provide the plan administrator
with authority to interpret the terms of the plan, then lawsuits
challenging a denial of benefits must be reviewed by courts under
an abuse of discretion standard, rather than the de novo standard
that is ordinarily the default under ERISA.110
In the March 1st Hearing, the Committee heard testimony stat-
ing that because of Firestone, there has been a proliferation of ‘‘dis-
cretionary clauses’’ in employee benefit plans that purport to grant
discretion to entities, often health insurance companies, regarding
benefit determinations and plan interpretation.111 Karen Handorf,
a veteran ERISA attorney, testified that:
[t]hese clauses change the default de novo review stand-
ard that courts would otherwise apply in reviewing benefit
denials to an abuse of discretion standard that is ex-
110 Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 1010 (1989).
111 Improving Retirement Security And Access To Mental Health Benefits: Hearing Before the
Subcomm. On Health, Labor, and Pensions, 117th Cong. (2022) at 7–8 (statement of Karen
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Handorf, Senior Counsel, Berger Montague P.C.), available at https://edlabor.house.gov/
download/handordkarentestimony030122.
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tremely deferential to the plan fiduciaries . . . In practice,
this deferential standard of review makes it very difficult
for participants and beneficiaries, particularly those chal-
lenging health care or disability denials, to obtain prom-
ised benefits even if the court determines that it would de-
cide the matter differently under a de novo standard of re-
view.
Ms. Handorf further explained that this standard ‘‘severely limits
the scope of discovery’’ in these of cases because courts may only
consider the same evidence that was considered by the plan admin-
istrator when deciding whether to approve or deny the benefit
claim.112 Indeed, the deferential standard of review creates such a
strong presumption in favor of the plan administrator’s decision to
deny benefits that not even a structural conflict of interest will
generally be sufficient to defeat the presumption that a deferential
standard of review is required.113
The Committee strongly believes a general prohibition on discre-
tionary clauses in ERISA-covered plans would significantly en-
hance participants’ and beneficiaries’ ability to prevail when they
are challenge a wrongful denial of mental health benefits. Con-
sider, for example, the case of Wit. v. United Behavioral Health, a
large class action lawsuit regarding coverage of mental health ben-
efits. In Wit, the U.S. District Court for the Northern District of
California ruled that United Behavioral Health (‘‘UBH’’) breached
its fiduciary duties under ERISA because the terms of the plans it
administered stated that medical necessity determinations were
based on guidelines that were consistent with generally accepted
standards of care when, in fact, UBH had adopted guidelines that
were much narrower.114 When the district court’s ruling was
issued, the case earned national attention and was celebrated as a
watershed moment by mental health advocates.115 However, UBH
appealed and the Ninth Circuit Court of Appeals recently over-
turned the district court’s decision.116 In its reversal, the Ninth
Circuit held that the lower court had misapplied the standard of
review (for abuse of discretion, rather de novo review) by sub-
stituting the court’s interpretation of plan terms for UBHs, which
the court determined was not unreasonable. If plaintiffs in the Wit
case were able to have their claims reviewed by the court under a
de novo standard it would mean that UBH‘s interpretation of plan
terms would not be given deference and the plaintiffs’ claims would
not have to clear such a high bar to prevail.
Notably, courts do not always seem to agree that giving def-
erence to a plan administrators’ denial of benefits is just, even
under the Supreme Court‘s precedent. For example, one judicial
112 Id. at 7; see also Meeting the Moment: Improving Access to Behavioral and Mental Health
Care: Hearing Before the Subcomm. On Health, Labor, and Pensions, 117th Cong. (2021) (state-
ment of Dr. Meiram Bendat, Founder, Psych Appeal, Inc.), available at https://edlabor.house.gov/
imo/media/doc/BendatMeiramTestimony041521.pdf (providing similar commentary on the effect
of discretionary clauses).
113 Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 (2008) (‘‘The significance of the conflict
of interest factor will depend on the circumstances of the particular case’’).
114 Wit v. United Behav. Health, No. 14–CV–02346–JCS (N.D. Cal. Mar. 5, 2019), rev‘d, No.
20–17363, 9th Cir. Mar. 22, 2022).
115 See Reed Abelson, Mental Health Treatment Denied to Customers by Giant Insurer‘s Poli-
cies, Judge Rules, N.Y. Times, Mar. 9, 2019, available at https://www.nytimes.com/2019/03/05/
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health/unitedhealth-mental-health-parity.html?searchResultPosition=1.
116 Wit v. United Behav. Health, No. 20–17363, (9th Cir. Mar. 22, 2022).
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opinion explained that ‘‘[t]he masks of the law in this case conceals
the person at risk of dying by a deferential standard of review and
the rules of legal interpretation. The result is a determination that
[defendant‘s] denial of benefits was legally, but perhaps not mor-
ally, reasonable.’’ 117 In another decision, a court explained that be-
cause of the requirement that they apply deferential review, ‘‘the
die was essentially cast’’ against the participant’s claim and ‘‘the
claimant may lose even if a preponderance of the evidence supports
a finding of disability, so long as the decision has ‘rational support
in the record.’ ’’ 118
Without a de novo standard of review, individuals are unfairly
disadvantaged when they challenge a benefit denial in court. H.R.
7780 would take an important step toward resolving this imbalance
of power and improving access to behavioral health benefits for
workers and their families by prohibiting single-employer plan dis-
cretionary clauses and any plan provisions that would require a
standard of review other than de novo.
Forced Arbitration Clauses That Purport to Govern ERISA Claims
Are Increasingly Common and Interfere with Workers‘ Ability to
Enforce Their Rights with Respect to Mental Health and Sub-
stance Use Disorder Benefits
By amending ERISA to expressly prohibit arbitration clauses
that preclude plan participants and beneficiaries from bringing suit
in federal court to challenge mental health benefit denials and fidu-
ciary breaches, H.R. 7780 would help workers covered by ERISA
plans enforce their rights with respect to mental health benefits
and remove barriers that conflict with ERISA‘s stated purpose of
‘‘providing for appropriate remedies, sanctions, and ready access to
the Federal courts.’’ 119
In its March 1st Hearing, the HELP Subcommittee heard testi-
mony that ‘‘plan sponsors are increasingly including provisions in
their employee benefit plans requiring participants to arbitrate’’
challenges to benefit denials and fiduciary breach claims against
plan administrators and other plan service providers ‘‘instead of
bringing suit in federal court as permitted under ERISA.’’ 120 The
HELP Subcommittee also heard about the effect forced arbitration
clauses on coverage for mental health treatment during its April
15, 2021 hearing titled ‘‘Meeting the Moment: Improving Access to
Behavioral and Mental Health Care’’ during which Dr. Meiram
Bendat testified that such clauses ‘‘. . . . make things secret, so
DOL doesn‘t find out about potential allegations and findings. Arbi-
trations don‘t always follow the law in a way that courts do, and
arbitrations can also potentially limit the types of relief sought, so
[they are] a real danger.’’ 121 Forced arbitration clauses take a vari-
117 Robertson v. Blue Cross & Blue Shield of Texas, 99 F. Supp. 3d 1249, 1261 (D. Mont.), aff‘d
sub nom. Robertson v. Blue Cross, 612 F. App’x 478 (9th Cir. 2015).
118 Fessenden v. Reliance Standard Life Ins. Co., No. 3:15CV370–PPS, 2018 WL 461105, at
*13 (N.D. Ind. Jan. 17, 2018), vacated and remanded, 927 F.3d 998 (7th Cir. 2019).
119 29 U.S.C. 1001(b).
120 Improving Retirement Security and Access to Mental Health Benefits: Hearing Before the
Subcomm. On Health, Labor, and Pensions, 117th Cong. (2022) at 8 (statement of Karen
Handorf, Senior Counsel, Berger Montague P.C.), available at https://edlabor.house.gov/
download/handordkarentestimony030122.
121 Dr. Meiram Bendat, Meeting the Moment: Improving Access to Behavioral and Mental
Health Care: Hearing Before the Subcomm. On Health, Labor, and Pensions, 117th Cong. (2021)
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ety of forms and may either be embedded in plan documents or
participants’ employment agreements. They sometimes also purport
to require plan participants to waive their ability to participate in
class action or maintain confidentiality regarding any actions they
might bring.122 The case law on whether these clauses are enforce-
able is mixed and seems to vary based on the specific facts and cir-
cumstances of each particular case.123 The express prohibition in
H.R. 7780 eliminates such ambiguity.
At the March 1st Hearing, Ms. Handorf testified that forced arbi-
tration clauses ‘‘potentially make plan fiduciaries subject to con-
flicting arbitration decisions, even when the behavior in question
impacts all plan participants equally, violating ERISA’s goal of con-
sistent and uniform application of fiduciary standards among plan
participants.’’ 124 In addition, ‘‘[t]he cost of pursuing an individual
participant‘s claim may outweigh the value of the individual claim.
Thus, these restrictions may defeat the ability of participants and
beneficiaries who have a small-dollar claim from obtaining redress
even if the violation at issue is systemic and many other partici-
pants or beneficiaries would have similar claims that could be ad-
dressed on a class or representative basis.’’ 125
Taken together, the provisions of H.R. 7780 bring us closer to
making the promise of parity a reality for the millions of people
with job-based health coverage.126
CONCLUSION
The Mental Health Matters Act is a comprehensive measure de-
signed to ensure that federal policies and programs are meeting the
behavioral health needs of students, workers, and families. As the
country continues to recognize the importance of mental health,
Congress must put policies in place to support our mental health
workforce, ensure students get access to mental health services in
their schools, and protect rights to access mental health and sub-
stance abuse services. The Committee reports H.R. 7780 to the
House and hopes that the House can take action on it this Con-
gress to send the message that mental health truly matters.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
This section states that the title of the bill is the Mental Health
Matters Act.
122 Improving Retirement Security and Access to Mental Health Benefits: Hearing Before the
Subcomm. On Health, Labor, and Pensions, 117th Cong. (2022) at 8 (statement of Karen
Handorf, Senior Counsel, Berger Montague P.C.), available at https://edlabor.house.gov/
download/handordkarentestimony030122.
123 See Pamela Reynolds, Are ERISA Breach of Fiduciary Duty Claims Arbitrable? (June 2,
2021), available at https://www.littler.com/publication-press/publication/are-erisa-breach-
fiduciary-duty-claims-arbitrable, (providing a robust discussion of relevant case law).
124 Handorf, supra note 52, citing 29 U.S.C 1002(b).
125 Id.
126 Several of the amendments to ERISA made by H.R. 7780 would also help participants and
beneficiaries in employee pension benefit plans to enforce their rights under the law. Forced ar-
bitration clauses, for example, have been a barrier to bringing lawsuits alleging breach of fidu-
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ciary duties related to the administration of defined contribution retirement plans. See e.g.,
Dorman v. Charles Schwab Corp., 780 F. App’x 510 (9th Cir. 2019).
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Sec. 2. Table of Contents
TITLE I—EARLY CHILDHOOD MENTAL HEALTH ACT
Section 101. Short title
This section states that the title may be cited as the Early Child-
hood Mental Health Support Act.
Section 102. Identification of effective interventions in Head Start
Programs
This section requires the U.S. Secretary of Health and Human
Services (HHS), acting through the Assistant Secretary for the Ad-
ministration for Children and Families (ACF), to identify and re-
view interventions, best practices, curricula, and staff trainings
that are evidence-based and improve the behavioral health of chil-
dren. This section requires that the Secretary focus on interven-
tions that can be delivered by a provider or other staff, are dem-
onstrated to improve social-emotional development, demonstrate ef-
fectiveness across racial, ethnic, and geographic populations, and
offer a tiered approach to addressing need. This section also re-
quires the Secretary to identify interventions that support staff
wellness and the appropriate credentials for individuals who de-
liver such interventions.
Sec. 103. Implementing the interventions in Head Start Programs
This section authorizes the Assistant Secretary for ACF to award
grants to Head Start agencies to implement the interventions iden-
tified in section 102 and ensure grants are awarded to grantees
representing a diversity of geographic areas.
Sec. 104. Evaluating implementation of interventions in Head Start
Programs
This section requires the Office of the Assistant Secretary for
Planning and Evaluation, in coordination with the Assistant Sec-
retary for ACF, in HHS to determine if the interventions under
section 103 are effectively implemented and yield long-term sav-
ings, develop a method for making such determination, and ensure
such method includes competency and testing approaches, perform-
ance or outcome measures, or other methods, and solicits public
input. The Assistant Secretary is required to develop a method for
such determination not later than 2 years after enactment and up-
date such method and determination at least every 5 years.
Sec. 105. Implementing the evaluation framework for Head Start
Program
The section requires the Assistant Secretary for ACF to imple-
ment the evaluation developed in section 104(a) to determine the
effectiveness of the interventions, best practices, curricula, and
staff trainings under section 102. This section also directs the As-
sistant Secretary for the ACF to provide technical assistance for
grantees implementing and evaluating interventions under section
102.
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Sec. 106. Best Practices Centers
This section authorizes the Assistant Secretary for ACF to fund
up to five Best Practice Centers in Early Childhood Training to
prepare Head Start agencies and staff to deliver the interventions
identified in section 102.
Sec. 107. Funding
This section authorizes $100 million over ten years between FY
2023 through FY 2032 to carry out sections 103(b), 104, and 106.
TITLE II—BUILDING PIPELINE OF SCHOOL-BASED MENTAL HEALTH
SERVICE PROVIDERS
Sec. 201. Short title
This section states that the title may be cited as the Building
Pipeline of School-Based Mental Health Service Providers Act.
Sec. 202. Definitions
This section specifies definitions for ‘‘Best Practices,’’ ‘‘Eligible In-
stitution,’’ ‘‘Eligible Partnership,’’ ‘‘High-Need Local Educational
Agency,’’ ‘‘Historically Black College or University,’’ ‘‘Homeless
Children and Youths,’’ ‘‘Indian Tribe; Tribal Organization,’’ ‘‘Insti-
tution of Higher Education,’’ ‘‘Local Educational Agency,’’ ‘‘Minor-
ity-Serving Institution,’’ ‘‘Outlying Area,’’ ‘‘Participating Eligible In-
stitution,’’ ‘‘Participating Graduate,’’ ‘‘Participating High-Need
Local Educational Agency,’’ ‘‘School-Based Mental Health Field,’’
‘‘School-Based Mental Health Services Provider,’’ ‘‘Secretary,’’
‘‘State Educational Agency,’’ ‘‘Student Support Personnel Target
Ratios,’’ ‘‘Tribally Controlled College or University,’’ and ‘‘Unaccom-
panied Youth.’’
Sec. 203. Grant program to increase the number of school-based
mental health services provides serving in high-need local edu-
cational agencies
This section authorizes the Secretary of Education to award
grants to eligible partnerships to enable the eligible partnership to
carry out pipeline programs to increase the number of school-based
mental health services providers employed by high-need local edu-
cational agencies. This section also requires several reservations
from the total of amounts appropriated: half of one percent to the
Secretary of the Interior; half of one percent for allotments to out-
lying areas; not more than three percent to conduct evaluations
under subsection (h); and not more than two percent for adminis-
tration and technical assistance.
This section outlines the application process. Eligible partner-
ships must submit an application to the Secretary of Education in-
cluding an assessment of existing ratios of school-based mental
health services providers to students, and a detailed descriptions of
a plan to carry out a pipeline program and the proposed allocation
and use of grant funds. Further this section outlines how grant
funds awarded may be used.
The section requires the Secretary of Education to award grants
to ensure grants are distributed to eligible entities that will serve
geographically diverse areas and give priority to eligible partner-
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ships that: have the highest numbers or percentages of low-income
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students; include one or more high-need local educational agencies
that have fewer school-based mental health services providers than
other eligible partnerships; include one or more eligible institutions
of high education; propose to collaborate with another institution of
high education; and propose to use grant funds to increase the di-
versity of school-based mental health services providers.
This section states that funds under this section shall be used to
supplement, not supplant, other Federal, State, or local funds
available.
This section further requires that each eligible partnership re-
ceiving a grant prepare and submit an annual report to the Sec-
retary of Education. The annual report must include: actual service
delivery provided through the grant funds; outcomes that are con-
sistent with the purpose of the grant program; the instruction, ma-
terials, and activities being funded; and the effectiveness of any
training and ongoing professional development provided. The Sec-
retary of Education will make public the annual reports on the
website of the Department of Education.
This section requires the Secretary of Education to conduct in-
terim evaluations to ensure eligible partnerships are making ade-
quate progress and a final evaluation to determine the effective-
ness of the grant program. Further, the Secretary of Education will
submit a report to Congress not earlier than five years nor later
than six years after enactment pertaining the findings of the final
evaluation.
This section also authorizes $200 million for FY 2023 and each
succeeding fiscal year.
TITLE III—THE ELEMENTARY AND SECONDARY SCHOOL
COUNSELING ACT
Sec. 301. Short title
This section states that the title may be cited as the Elementary
and Secondary School Counseling Act.
Sec. 302. Definitions
This section specifies definitions for ‘‘ESEA Definitions,’’ ‘‘High-
Need School,’’ ‘‘Outlying Area,’’ ‘‘School-Based Mental Health Serv-
ices Provider,’’ ‘‘Secretary,’’ and ‘‘State.’’
Sec. 303. Allotments to States and subgrants to local educational
agencies
This section authorizes the Secretary of Education to make allot-
ments to States. States will award subgrants to local educational
agencies in order to increase access to school-based mental health
services providers at high-need schools.
This section requires several reservations from the total of
amounts appropriated: half of one percent for the Secretary of the
Interior; half of one percent for allotments for the outlying areas;
and not more than two percent for administration and technical as-
sistance.
This section requires the Secretary to make allotments to each
State based on the formula under part A of title I of the Elemen-
tary and Secondary Education Act of 1965. Additionally, this sec-
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matching requirements. This section further outlines the applica-
tion process for States. States are eligible to receive an allotment
for a period of 5-years and may be renewed for an additional 5-year
period.
This section outlines the process for States to make subgrants to
local educational agencies to recruit and retain school-based mental
health services providers and work toward effectively staffing high-
need schools with school-based mental health services providers.
States are required to give priority to local educational agencies
that serve a significant number of high-need schools. Local edu-
cational agencies must submit an application to the State regard-
ing how the agency will prioritize assisting high-need schools with
the largest numbers or percentages of students from low-income
families. This section states that funds under this section shall be
used to supplement, not supplant, other funds available to a state
or local educational agency for school-based mental health services.
Funds can be combined with State or local funds to carry out ac-
tivities under this section.
This section requires that local educational agencies receiving a
subgrant under this section submit an annual report to the State
describing the activities carried out, enumerate the number of
school-based mental health services providers, and include the
most recent student to provider ratios. The Secretary of Education
will make public the annual reports on the website of the Depart-
ment of Education.
Sec. 304. Authorization of Appropriations
This section authorizes $5 billion for FY 2023 and such sums as
necessary for each succeeding fiscal year.
TITLE IV—SUPPORTING TRAUMA-INFORMED EDUCATION
PRACTICES ACT
Sec. 401. Short title
This section states that the title may be cited as the Supporting
Trauma-Informed Education Practices Act.
Sec. 402. Amendment to the SUPPORT for Patients and Commu-
nities Act
This section amends section 7134 of the SUPPORT for Patients
and Communities Act.
This section authorizes the Secretary of Education, in coordina-
tion with the Secretary of HHS, to award grants to an eligible enti-
ty to increase school personnel access to evidence-based trauma
support services and mental health services. This section also re-
quires several reservations from the total of amounts appropriated:
not more than three percent to conduct the evaluation under this
section; and not more than two percent to technical assistance and
administration. Eligible entities who receive funds under this sec-
tion may not exceed a 5-year period.
This section outlines a list of initiatives, activities, and programs
for which an eligible entity may use the funds under this section.
Eligible entities must submit an application to the Secretary of
Education in order to receive a grant, contract, or cooperative
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agreement under this section. In carrying out an evidence-based
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initiative described under the use of funds section, an eligible enti-
ty will establish an interagency agreement between local edu-
cational agencies, agencies responsible for early childhood edu-
cation programs, Head Start agencies (including Early Head Start
agencies), juvenile justice authorities, mental health agencies, child
welfare agencies, and other relevant agencies, authorities, or enti-
ties in the community that will be involved in the provision of serv-
ices under such initiative, activity, or program.
This section requires that the Secretary of Education conduct a
rigorous evaluation of the initiatives and activities carried out by
an eligible entity under this section and disseminate evidence-
based practices regarding trauma-informed support services and
mental health services.
The section requires the Secretary of Education to ensure grants,
contracts, and cooperative agreements under this section are dis-
tributed equitably to eligible entities that will serve geographically
diverse areas. This section states that funds under this section
shall be used to supplement, not supplant, other Federal, State, or
local funds available to carry out the initiatives and activities de-
scribed in this section. Further this section requires the Secretary
of Education to consult with Indian Tribes, Regional Corporations,
Native Hawaiian Educational Organizations, and their representa-
tives to ensure notice of eligibility.
This section specifies definitions for ‘‘Early Childhood Education
Program,’’ ‘‘Eligible Entity,’’ ‘‘ESEA Terms,’’ ‘‘Regional Corpora-
tion,’’ and ‘‘School.’’
This section authorizes $50 million between FY 2023 through FY
2027 to carry out this section.
TITLE V—RESPOND, INNOVATE, SUCCEED, AND EMPOWER (RISE)
Sec. 501. Short title
This section states that the title may be cited as the Respond,
Innovate, Succeed, and Empower Act or the RISE Act.
Sec. 502. Perfecting amendment to the definition of disability
This section amends Section 103(6) of the Higher Education Act
of 1965 by striking ‘‘section 3(2)’’ and inserting ‘‘section 3.’’
Sec. 503. Supporting students with disabilities to succeed once en-
rolled in college
This section amends section 487(a) of the Higher Education Act
of 1965 to add that institutions will adopt policies providing that
individualized education plans (IEPs) and similar documentation
developed during primary and secondary education will be consid-
ered sufficient to establish that the student has a disability for
which they may need an accommodation. Additionally, institutions
are required to develop, disseminate and publish policies that are
transparent and explicit regarding the process through which a
student with a disability can obtain reasonable accommodations.
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Sec. 504. Authorization of the funds for the national center for the
information and technical support for postsecondary students
with disabilities
This section amends section 777(a) of the Higher Education Act
of 1965 by striking the previous amounts appropriated and adding
new paragraph (5) indicating appropriations. This section author-
izes $2 million for each fiscal year between FY 2023 and FY 2027
to carry out this subsection.
Sec. 505. Inclusion of information on students with disabilities
This section amends Section 487(a) of the Higher Education Act
of 1965, as amended by section 503, to add a new paragraph (31)
at the end. This section outlines that institutions will submit key
data related to undergraduate students who are formally registered
as students with disabilities with the institution‘s office of dis-
ability services. Institutions will not submit such information if the
information would reveal personally identifiable information.
Sec. 506. Rule of construction
This section states that none of the amendments made by this
title shall not be construed to affect the meaning of the terms ‘‘rea-
sonable accommodation’’ or ‘‘record of impairment’’ under the Amer-
icans with Disabilities Act of 1990.
TITLE VI—STRENGTHENING BEHAVIORAL HEALTH BENEFITS
Sec. 601. Short title
This section states that the title may be cited as the Strength-
ening Behavioral Health Benefits Act.
Sec. 602. Enforcement of mental health and substance use disorder
requirements
This section amends section 502(a) of the Employee Retirement
Income Security Act of 1974 to add a new paragraph (12). This sec-
tion authorizes the Secretary of Labor or a plan participant, bene-
ficiary, or fiduciary to bring a civil action regarding mental health
and substance use disorder benefits against a plan, health insur-
ance issuer, fiduciary, or other individual who participates in or
conceals a statutory violation or wrongful denial of benefits relating
to mental health and substance use disorder. This section specifies
that relief available under paragraph (12) includes recovery of all
losses to participants or beneficiaries, reformation of impermissible
plan or coverage terms, and re-adjudication of claims and payment
of benefits.
This section further amends section 502(a)of the Employee Retire-
ment Income Security Act of 1974 to clarify that relief available to
the Secretary of Labor or any participant or beneficiary includes re-
adjudication and payment of benefits.
This section amends section 502(b)(3) of the Employee Retirement
Income Security Act of 1974 to authorize the Secretary of Labor to
enforce requirements regarding mental health and substance use
disorder benefits against health insurance issuers.
This section amends part 7 of title I of the Employee Retirement
Income Security Act of 1974 to make a technical amendment to ac-
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This section authorizes $275 million to remain available until FY
2032 for audits and investigations, enforcement actions, litigation
expenses, issuance of regulations or guidance, and any other De-
partmental activities relating to section 712 of the Employee Retire-
ment Income Security Act of 1974 or other requirements relating to
mental health and substance use disorder benefits.
TITLE VII—EMPLOYEE AND RETIREE ACCESS TO JUSTICE
Sec. 701. Short title
This section states that the title may be cited as the Employee
and Retiree Access to Justice Act of 2022.
Sec. 702. Unenforceable arbitration clauses, class action waivers,
representation waivers, and discretionary clauses
This section amends section 502 of the Employee Retirement In-
come Security Act of 1974 to provide that pre-dispute or coerced
post-dispute arbitration clauses, class action waivers, and represen-
tation waivers are unenforceable in any civil action brought by or
on behalf of a participant or beneficiary under section 502 or under
a common law claim relating to plan benefits.
This section amends section 502 of the Employee Retirement In-
come Security Act of 1974 to provide that covered provisions that
give discretionary authority in benefit determinations or plan inter-
pretation (or otherwise deny de novo review of benefit denial
claims) are unenforceable with respect to single-employer plans in
any civil action brought by or on behalf of a participant or bene-
ficiary under section 502 or under a common law claim relating to
plan benefits.
This section specifies definitions for ‘‘covered provision,’’ ‘‘pre-dis-
pute arbitration provision,’’ ‘‘post-dispute arbitration provision,’’
and ‘‘retaliation.’’
This section authorizes the Secretary of Labor to issue regula-
tions related to these provisions.
Sec. 703. Prohibition on mandatory arbitration clauses, class action
waivers, representation waivers, and discretionary clauses
This section amends section 402 of the Employee Retirement In-
come Security Act of 1974 to prohibit covered persons from includ-
ing in plan documents any pre-dispute arbitration provision, post-
dispute arbitration provision, class action waiver, representation
waiver, or discretionary clause described in section 702.
This section specifies definitions for ‘‘covered person’’ as well as
‘‘covered provision,’’ ‘‘pre-dispute arbitration provision,’’ and ‘‘post-
dispute arbitration provision.’’
Sec. 704. Effective date
This section specifies that the provisions in sections 702 and 703
apply as of the date of enactment.
This section further specifies that plans will have an additional
year following the enactment of this legislation to update plan doc-
uments, provided that they otherwise comply with the require-
dlhill on DSK120RN23PROD with HEARING
ments of sections 702 and 703 starting on the date of enactment.
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49
EXPLANATION OF AMENDMENTS
The amendments, including the amendment in the nature of a
substitute, are explained in the descriptive portions of this report.
APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
Pursuant to section 102(b)(3) of the Congressional Accountability
Act of 1995, Pub. L. No. 104–1, H.R. 7780 does not apply to terms
and conditions of employment or to access to public services or ac-
commodations within the legislative branch.
UNFUNDED MANDATE STATEMENT
Pursuant to Section 423 of the Congressional Budget and Im-
poundment Control Act of 1974, Pub. L. No. 93–344 (as amended
by Section 101(a)(2) of the Unfunded Mandates Reform Act of 1995,
Pub. L. No. 104–4), the Committee traditionally adopts as its own
the cost estimate prepared by the Director of the Congressional
Budget Office (CBO) pursuant to section 402 of the Congressional
Budget and Impoundment Control Act of 1974, which includes an
estimate of federal mandates. The Committee reports that because
this cost estimate was not timely submitted to the Committee be-
fore the filing of this report, the Committee is not in a position to
make a statement on federal mandates for H.R. 7780, as amended.
EARMARK STATEMENT
In accordance with clause 9 of rule XXI of the Rules of the House
of Representatives, H.R. 7780 does not contain any congressional
earmarks, limited tax benefits, or limited tariff benefits as de-
scribed in clauses 9(e), 9(f), and 9(g) of rule XXI.
ROLL CALL VOTES
In compliance with clause 3(b) of rule XIII of the Rules of the
House of Representatives, the Committee advises that the following
roll call votes occurred during the Committee‘s consideration of
H.R. 7780:
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50
Date: 05/18/2022
COMMITTEE ON EDUCATION AND LABOR RECORD OF COMMITTEE VOTE
Roll Call:1 Bill:H.R.7780 Amendment Numbcr:2
Disposition: Defeated by a roll call vote of 17-27
Sponsor/Amendment: Allen I MH_RSUB_02
Aye No v:::::g Vo,mg
Mr. SCOTT (VA) (Chainnan) X Mrs. FOXX (NC) (Ranking) X
Mr. GR!JAL VA (AZ) X Mr. WILSON (SC) X
Mr. COlJRNTEY (CT) X Mr. THOMPSON (PA) X
ML SABLAN (MP) X ML WALBERG (Ml) X
Ms. WILSON (FL) X Mr. GROUIMAN (WI) X
Ms. BONAMICI (OR) X Ms. STEFANIK (NY) X
Mr. TAKANO (CA) X Mr. ALLEN (GA) X
Ms. ADAMS (NC) X Mr. BANKS (IN) X
Mr. DESAULNIER (CA) X Mr. COMER (KY) X
Mr. NORCROSS (NJ) X Mr. FULCHER (ID) X
Ms.JAYAPAL(WA) X Mr. KELLER (PA) X
Mr. MORELLE (NY) X Mr. MURPHY (NC) X
Ms. WILD (PA) X Ms. MILLER-MEEKS (IA) X
Mrs. MCBATH (GA) X Mr. OWENS (UT) X
lvlrs. !l.<\ YES (CT) X Mr.GOOD(VA) X
Mr. LEVIN (Ml) X Mrs. MCCLAIN (Ml) X
Ms. OMAR (MN) X Mrs. HARSHBARGER (TN) X
Ms. STEVENS (Ml) X Mrs. M[LLER (lL) X
Ms. LEGER FERNANDEZ (NM) X Mrs. SPARTZ (IN) X
Mr. JONES (NY) X Mr. FITZGERALD (W[) X
Ms. MANNING (NC) X Mr. CAWTHORN (NC) X
Mr. MRVAN (IN) X Mrs, STEEL (CA) ~
Mr. BOWMAN (NY) X Mr. JACOBS (NY) X
Mrs, SHERFILUS-MCCORMlCK (FL) X vacancy
Mr. POCAN (WI) X Vacancy
Mr. CASTRO (TX) X I
Ms. SHFRRJLL (NJ) X I
Mr. ESPAILLAT (NY) X
Mr. KWE!Sl MFUME (MD) X
TOTALS: 17 Nns:27 Not Voting:?
Total: 53 / Quorum: / Report:
(29D •24 R)
"Although not present for the recorded vote, Member expressed he/she would have voted AYE if present at time of vote.
•Although not present for the recorded vole, Member expressed he/she would have voted NO if present at time of vole.
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51
Date: 05118/2022
COMMITTEE ON EDUCATION AND LABOR RECORD OF COMMITTEE VOTE
Roll Call:2 Bill: H.R.7780 Amendment Number:3
Disposition: Defeated by a roll call vote of 17-26
Sponsor/ Amendment: Miller I MILLIL_035
~fame&Srnrn Aye No v'~i:g Name&State ~o v::::,
Mr. SCOTT (VA) (Chairman) X Mrs. FOXX (NC) (Ranking) X
Mr. GRIJALVA (AZ) X Mr. WILSON (SC) X
Mr. COURNTEY (CT) X Mr. THOMPSON (PA) X
Mr. SABLAN (MP) X Mr. WALBERG (MI) X
Ms. WILSON (FL) X Mr. GROTHMAN (WI) X
Ms. BONAMIC! (OR) X Ms. STEFANIK (NY) X
Mr. TAKANO (CA) X Mr. ALLEN (GA) X
Ms. ADA,'v!S (NC) X Mr. BANKS (IN) X
Mr. DESAULN!ER (CA) X Mr. COMER (KY) X
Mr. NORCROSS (NJ) X Mr. FULCHER (ID) X
Ms. JAYAPAL (WA) X Mr. KELLER(PA) X
Mr. MORELLE (NY) X Mr. MURPHY (NC) X
Ms. WILD (PA) X Ms. MILLER-MEEKS (IA) X
Mrs. MCBATH (GA) X Mr. OWENS (UT) X
Mrs. HA YES (CT) X Mr. GOOD (VA) X
Mr. LEVIN (Ml) X Mrs. MCCLAIN (Ml) X
Ms. OMAR (MN) X Mrs. HARSHBARGER (1N) X
Ms. STEVENS (MI) X Mrs. MILLER (IL) X
Ms. LEGER FERNANDEZ (NM) X Mrs. SPARTZ (IN) X
Mr. JONES (NY) X Mr. FITZGERALD (WI) X
Ms. MANNING (NC) X Mr. CAWTHORN (NC) X
Mr.MRVAN (IN) X Mrs. STEEL (CA) )(
Mr. BOWMAN (NY) X Mr. JACOBS (NY) X
Mrs. SHERFILUS-MCCORMICK (FL) X Vacancy
Mr. POCA,N (WI) X Vacancy
Mr. CASTRO (TX) X
Ms. SHERRILL (NJ) X
Mr. ESPAJLLAT (NY) X
Mr. KWEISI J'v!FUME (MD) X
TOTALS: Ayes: 17 Nos:26 Not Voting: 8
Total: 531 ~)uorum: I Report:
(29D -24R)
'Although not present for the recorded vote, Member expressed he/she would have voted AYE if present at time of vote.
•Although not present/or the recorded vote. Member expressed he/she would have voted NO if present attime of vote.
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52
Date: 05/18/2022
COMMITTEE ON EDUCATION AND LABOR RECORD OF COMMITTEE VOTE
Roll Call:3 Bill:H,R.7780 Amendment Number:4
Disposition: Defeated by a roll call vote of 17-27
Sponsor/Amendment: Allen I H7780_R_AMO_02
Ay~ No v~~;, "' v;,,;,,
Mr, SCOTT (VA) (Chairman) X .'vlrs. FOXX (NC) (Ranking) X
Mr. GRIJALVA(AZ) X Mr. WILSON (SC) X
Mr. COURNTEY (CT) X l Mr. THOMPSON (PA) X
Mr. SABLAN (MP) X Mr, WALBERG (Ml) X
Ms, WILSON (FL) X Mr. GROTHMAN (WI) X
Ms. BONAM!Cl (OR) X Ms, STEFANTI< (NY) X
Mr. TAKANO (CA) X Mr. ALLEN (GA) X
Ms, ADAMS (NC) X Mr. BANKS (IN) X
Mr. DESAULNIER (CA) X Mr. COMER (KY) X
Mr. NORCROSS (NJ) X Mr. FULCHER (ID) X
Ms.JAYAPAL(WA) X Mr. KELLER(PA) X
Mr. MORELLE (NY) X Mr. MURPHY (NC) X
Ms, WILD (PA) X Ms. MILLER-MEEKS ([A) X
Mrs, MCBATH (GA) X Mr, OWENS (UT) X
Mrs. HAYES (CT) X I Mr. GOOD (VA) X
Mr.LEV!N(Ml) X Mrs, MCCLAIN (Ml) X
Ms. OMAR (MN) X Mrs. HARSHBARGER (TN) X
Ms. STEVENS (Ml) X Mrs, M!LLER (IL) X
Ms. LEGER FERNANDEZ (NM) X Mrs. SPARTZ (IN) X
Mr. JONES (NY) X Mr. FITZGERALD (WI) X
Ms. MANNING (NC) X Mr. CAWTHORN (NC) X
Mr, MRVAN (IN) X Mrs, STEEL (CA) k
Mr. BOWMAN (NY) X Mr. JACOBS (NY) X
!vlrs. SHERF!LUS-MCCORMlCK (FL) X 1''acam.y
Mr. POCAN (WI) X Vacancy
Mr. CASTRO (TX) X
Ms. SHERRILL (NJ) X
Mr. ESPAILLAT (NY) X i
Mr, KWE!Sl MFUME (MD) X
TOTALS: Ayes: 17 Nos:27 Not Voting: 7
Total: 53 I Quorum: / Report:
(29D-24R)
'Although not prosont for the recorded vote, Member expressed he/she would have voted AYE if present at time of vote,
"'Although not present for the recorded vote, Member expressed he/she would have voted NO if present at time of vote,
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53
Date: 0511812022
COMMITTEE ON EDUCATION AND LABOR RECORD OF COMMITTEE VOTE
Roll Call:4 Bill: H.R.7780 Amendment Number: 5
Disposition: Defeated by a roll call vote of 18-26
Sponsor/Amendment: Harshbarger/ H7780_R_AMD_01
Aye Nu v'!;, Nai-ne&State No ,;;;::.
Mr. SCOTT (VA) (Chairman) X Mrs. FOXX (NC) (Ranking) X
Mr. GR!JAL VA (AZ) X Mr. WILSON (SC) X
Mr. COURNTEY (CT) X Mr. THOMPSON (PA) X
Mr. SABLAN (MP) X Mr. WALBERG (Ml) X
Ms. WILSON (FL) X Mr. GROTHMAN (Wl) X
Ms. BONAM!CI (OR) X Ms. STEFA}/IK (NY) X
Mr. TAK.ANO (CA) X Mr. ALLEN (GA) X
Ms. ADAMS (NC) X Mr. BANKS (IN) X
Mr. DESAULN!ER (CA) X Mr. COMER (KY) X
Mr. NORCROSS (NJ) X Mr. FULCHER (ID) X
Ms.JAYAPAL(WA) X Mr. KELLER (PA) X
Mr. MORELLE (NY) X Mr. MURPHY (NC) X
Ms. WILD (PA) X Ms. MILLER-MEEKS (lA) X
Mrs. MCBATH (GA) X Mr. OWENS (UT) X
Mrs. HA YES (CT) X Mr.GOOD(VA) X
Mr. LEVIN (Ml) X Mrs. MCCLAIN (Ml) X
Ms.OMAR(MN) X Mrs. HARSHBARGER (TN) X
Ms. STEVENS (Ml) X Mrs. MlLLER (IL) X
Ms. LEGER FERNANDEZ (NM) X Mrs. SPARTZ (IN) X
Mr. JONES (NY) X Mr. FITZGERALD (WI) X
Ms. MANNING (NC) X j Mr. CAWTHORN (NC) X
Mr. MRVAN (IN) X Mrs. STEEL (CA) K
Mr. BOWMAN (NY) X Mr. JACOBS (NY} X
Mrs. SHERflLUS-MCCOFcM!CK (FL) X Vacancy
Mr. POCAN (WI) X Vacancy
Mr. CASTRO (TX) X
Ms. SHERRILL (NJ) X
Mr. ESPAILLAT (NY) X
Mr. KWEISI MFUME (MD) X
TOTALS: Ayes: 18 Nos:26 Not Voting:7
l'otai: 53 I Quorum: / Report:
(29D 24 R)
'Although not present for the recorded vote, Member expressed he/she would have voted AYE tt present al time of vote.
*Although not present for the recorded vote, Member expressed he/she would have voted NO if present at time of vote.
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54
Date: 5/18/2022
COMMITTEE ON EDUCATION AND LABOR RECORD OF COMMITTEE VOTE
Roll Call:5 Bill: 7780 Amendment Number: Motion
Disposition: Adopted by a Full Committee voice vote 26-18
Sponsor/Amendment: Courtney motion to report H.R 7780 to the House with an amendment and with the
recommendation that the amendment be agreed to, and the bill as amended, do pass
No
v~i!, ~o v;;;;,;,
Mr. SCOT!' (VA) (Chairman) X Mrs. FOXX (NC) (Ranking)
Mr. GRIJALVA (AZ) Mr. WILSON (SC) X
Mr. COURNTEY (CT) X Mr. THOMPSON (PA) X
Mr. SABLAN (MP) X Mr. WALBERG (MI) X
Ms. WILSON (FL) X Mr. GROTHMAN (WI) X
Ms. BONAMICl (OR) X Ms. STEFANIK (NY) X
Mr. TAKANO (CA) X IMr. ALLEN (GA) X
Ms. ADAMS (NC) X Mr. BANKS (lN) X
Mr. DESAULNJER(CA) X Mr. COMJ::R (KY)
Mr. NORCROSS (NJ) X Mr. FULCHER (ID) X
Ms. JAYAPAL (WA) X Mr. KELLER (PA) X
Mr. MORELLE (NY) Ms. MJLLER-MEEKS (IA) X
Ms. WILD (PA) X Mr. OWENS (UT) X
Mrs. MCBATH (GA) X Mr. GOOD (VA) X
Mrs. HA YES (CT) X Mrs. MCCLAIN (Ml) X
Mr. LEV!N (MI) X Mrs. HARSHBARGER (TN) X
Ms. OMAR (MN) X Mrs. MILLER (IL) X
Ms. STEVENS (Ml) X Mrs. SPARTZ ([N) X
Ms. LEGER FERNANDEZ (NM) X Mr. FITZGERALD (WI)
Mr. JONES (NY) Mr. CAWTHORN (NC)
Ms. MANNING (NC) X Mrs. STEEL (CA) X
Mr. MRVAN (IN) X Mr. JACOBS (NY) X
Mr. BOWMAN (NY) X Vacancy
Mrs. CHERF!LUS-MCCORM!CK (FL) X J>'acancy
Mr. POCAN (Wl) X
Mr. CASTRO (TX) X i
Ms. SHERRILL (NJ) X
Mr. ESPAILLAT (NY) X
Mr. KWE!Sf MFUME (MD) X
TOTALS: Ayes: 26 Nos: 18 Not Voting:
Total: 531 Quorum: I Report:
(29D-24 R)
'Although not present for the recorded vote, Member expressed he/she would have voted AYE ii present at time of vote.
*Although not present for the recorded vote, Member expressed he/she would have voted NO if present at time of vote.
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55
STATEMENT OF PERFORMANCE GOALS AND OBJECTIVES
Pursuant to clause (3)(c) of rule XIII of the Rules of the House
of Representatives, the goals of H.R. 7780 are to improve access to
behavioral health services for children, students, and workers.
DUPLICATION OF FEDERAL PROGRAMS
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the House
of Representatives, the Committee states that no provision of H.R.
7780 is known to be duplicative of another federal program, includ-
ing any program that was included in a report to Congress pursu-
ant to section 21 of Pub. L. No. 111–139 or the most recent Catalog
of Federal Domestic Assistance.
HEARINGS
Pursuant to clause 3(c)(6) of rule XIII of the Rules of the House
of Representatives—
(1) the following hearing was used to develop H.R. 7780: the
HELP Subcommittee hearing titled ‘‘Meeting the Moment: Im-
proving Access to Behavioral and Mental Health Care’’ held on
April 15, 2021. The hearing examined barriers to access to be-
havioral health care, particularly limited coverage of mental
health and substance use disorder treatment and the impor-
tance of improving enforcement of mental health parity laws.
The Subcommittee heard testimony from Dr. Brian Smedley,
Chief of Psychology in the Public Interest, American Psycho-
logical Association, Washington, DC; Dr. Christine Yu Moutier,
Chief Medical Officer, American Foundation for Suicide Pre-
vention, New York, NY; Mr. James Gelfand, Senior Vice Presi-
dent, Health Policy, The ERISA Industry Committee, Wash-
ington, DC; and Dr. Meiram Bendat, Founder, Psych-Appeal,
Santa Barbara, CA.
(2) Other related hearings held are listed in the Committee
History section of this report.
STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF
THE COMMITTEE
In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1)
of rule X of the Rules of the House of Representatives, the
Committee‘s oversight findings and recommendations are reflected
in the descriptive portions of this report.
NEW BUDGET AUTHORITY AND CBO COST ESTIMATE
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the House
of Representatives and section 308(a) of the Congressional Budget
and Impoundment Control Act of 1974, and pursuant to clause
3(c)(3) of rule XIII of the Rules of the House of Representatives and
section 402 of the Congressional Budget and Impoundment Control
Act of 1974, the Committee has requested but not received a cost
estimate for H.R. 7780 from the Director of the Congressional
Budget Office.
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56
COMMITTEE COST ESTIMATE
Clause 3(d)(1) of rule XIII of the Rules of the House of Rep-
resentatives requires an estimate and a comparison of the costs
that would be incurred in carrying out H.R. 7780. However, clause
3(d)(2)(B) of that rule provides that this requirement does not
apply when the committee has included in its report a timely sub-
mitted cost estimate of the bill prepared by the Director of the Con-
gressional Budget Office under section 402 of the Congressional
Budget and Impoundment Control Act of 1974. The Committee re-
ports that because this cost estimate was not timely submitted to
the Committee before the filing of this report, the Committee is not
in a position to make a cost estimate for H.R. 7780, as amended.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
In compliance with clause 3(e) of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the bill,
H.R. 7780 as reported, are shown as follows:
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
In compliance with clause 3(e) of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be omit-
ted is enclosed in black brackets, new matter is printed in italics,
and existing law in which no change is proposed is shown in
roman):
SUPPORT FOR PATIENTS AND COMMUNITIES ACT
* * * * * * *
TITLE VII—PUBLIC HEALTH
PROVISIONS
* * * * * * *
Subtitle N—Trauma-Informed Care
* * * * * * *
øSEC. 7134. GRANTS TO IMPROVE TRAUMA SUPPORT SERVICES AND
MENTAL HEALTH CARE FOR CHILDREN AND YOUTH IN
EDUCATIONAL SETTINGS.
ø(a) GRANTS, CONTRACTS, AND COOPERATIVE AGREEMENTS AU-
THORIZED.—The Secretary, in coordination with the Assistant Sec-
retary for Mental Health and Substance Use, is authorized to
award grants to, or enter into contracts or cooperative agreements
with, State educational agencies, local educational agencies, Indian
Tribes (as defined in section 4 of the Indian Self-Determination and
Education Assistance Act) or their tribal educational agencies, a
school operated by the Bureau of Indian Education, a Regional Cor-
poration, or a Native Hawaiian educational organization, for the
purpose of increasing student access to evidence-based trauma sup-
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port services and mental health care by developing innovative ini-
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57
tiatives, activities, or programs to link local school systems with
local trauma-informed support and mental health systems, includ-
ing those under the Indian Health Service.
ø(b) DURATION.—With respect to a grant, contract, or cooperative
agreement awarded or entered into under this section, the period
during which payments under such grant, contract or agreement
are made to the recipient may not exceed 4 years.
ø(c) USE OF FUNDS.—An entity that receives a grant, contract, or
cooperative agreement under this section shall use amounts made
available through such grant, contract, or cooperative agreement
for evidence-based activities, which shall include any of the fol-
lowing:
ø(1) Collaborative efforts between school-based service sys-
tems and trauma-informed support and mental health service
systems to provide, develop, or improve prevention, screening,
referral, and treatment and support services to students, such
as providing trauma screenings to identify students in need of
specialized support.
ø(2) To implement schoolwide positive behavioral interven-
tions and supports, or other trauma-informed models of sup-
port.
ø(3) To provide professional development to teachers, teacher
assistants, school leaders, specialized instructional support per-
sonnel, and mental health professionals that—
ø(A) fosters safe and stable learning environments that
prevent and mitigate the effects of trauma, including
through social and emotional learning;
ø(B) improves school capacity to identify, refer, and pro-
vide services to students in need of trauma support or be-
havioral health services; or
ø(C) reflects the best practices for trauma-informed iden-
tification, referral, and support developed by the Task
Force under section 7132.
ø(4) Services at a full-service community school that focuses
on trauma-informed supports, which may include a full-time
site coordinator, or other activities consistent with section 4625
of the Elementary and Secondary Education Act of 1965 (20
U.S.C. 7275).
ø(5) Engaging families and communities in efforts to increase
awareness of child and youth trauma, which may include shar-
ing best practices with law enforcement regarding trauma-in-
formed care and working with mental health professionals to
provide interventions, as well as longer term coordinated care
within the community for children and youth who have experi-
enced trauma and their families.
ø(6) To provide technical assistance to school systems and
mental health agencies.
ø(7) To evaluate the effectiveness of the program carried out
under this section in increasing student access to evidence-
based trauma support services and mental health care.
ø(8) To establish partnerships with or provide subgrants to
Head Start agencies (including Early Head Start agencies),
public and private preschool programs, child care programs (in-
cluding home-based providers), or other entities described in
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subsection (a), to include such entities described in this para-
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58
graph in the evidence-based trauma initiatives, activities, sup-
port services, and mental health systems established under
this section in order to provide, develop, or improve prevention,
screening, referral, and treatment and support services to
young children and their families.
ø(d) APPLICATIONS.—To be eligible to receive a grant, contract, or
cooperative agreement under this section, an entity described in
subsection (a) shall submit an application to the Secretary at such
time, in such manner, and containing such information as the Sec-
retary may reasonably require, which shall include the following:
ø(1) A description of the innovative initiatives, activities, or
programs to be funded under the grant, contract, or coopera-
tive agreement, including how such program will increase ac-
cess to evidence-based trauma support services and mental
health care for students, and, as applicable, the families of
such students.
ø(2) A description of how the program will provide linguis-
tically appropriate and culturally competent services.
ø(3) A description of how the program will support students
and the school in improving the school climate in order to sup-
port an environment conducive to learning.
ø(4) An assurance that—
ø(A) persons providing services under the grant, con-
tract, or cooperative agreement are adequately trained to
provide such services; and
ø(B) teachers, school leaders, administrators, specialized
instructional support personnel, representatives of local In-
dian Tribes or tribal organizations as appropriate, other
school personnel, and parents or guardians of students
participating in services under this section will be engaged
and involved in the design and implementation of the serv-
ices.
ø(5) A description of how the applicant will support and inte-
grate existing school-based services with the program in order
to provide mental health services for students, as appropriate.
ø(6) A description of the entities in the community with
which the applicant will partner or to which the applicant will
provide subgrants in accordance with subsection (c)(8).
ø(e) INTERAGENCY AGREEMENTS.—
ø(1) LOCAL INTERAGENCY AGREEMENTS.—To ensure the provi-
sion of the services described in subsection (c), a recipient of
a grant, contract, or cooperative agreement under this section,
or their designee, shall establish a local interagency agreement
among local educational agencies, agencies responsible for
early childhood education programs, Head Start agencies (in-
cluding Early Head Start agencies), juvenile justice authorities,
mental health agencies, child welfare agencies, and other rel-
evant agencies, authorities, or entities in the community that
will be involved in the provision of such services.
ø(2) CONTENTS.—In ensuring the provision of the services de-
scribed in subsection (c), the local interagency agreement shall
specify with respect to each agency, authority, or entity that is
a party to such agreement—
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ø(A) the financial responsibility for the services;
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ø(B) the conditions and terms of responsibility for the
services, including quality, accountability, and coordination
of the services; and
ø(C) the conditions and terms of reimbursement among
such agencies, authorities, or entities, including procedures
for dispute resolution.
ø(f) EVALUATION.—The Secretary shall reserve not more than 3
percent of the funds made available under subsection (l) for each
fiscal year to—
ø(1) conduct a rigorous, independent evaluation of the activi-
ties funded under this section; and
ø(2) disseminate and promote the utilization of evidence-
based practices regarding trauma support services and mental
health care.
ø(g) DISTRIBUTION OF AWARDS.—The Secretary shall ensure that
grants, contracts, and cooperative agreements awarded or entered
into under this section are equitably distributed among the geo-
graphical regions of the United States and among tribal, urban,
suburban, and rural populations.
ø(h) RULE OF CONSTRUCTION.—Nothing in this section shall be
construed—
ø(1) to prohibit an entity involved with a program carried
out under this section from reporting a crime that is committed
by a student to appropriate authorities; or
ø(2) to prevent Federal, State, and tribal law enforcement
and judicial authorities from exercising their responsibilities
with regard to the application of Federal, tribal, and State law
to crimes committed by a student.
ø(i) SUPPLEMENT, NOT SUPPLANT.—Any services provided
through programs carried out under this section shall supplement,
and not supplant, existing mental health services, including any
special education and related services provided under the Individ-
uals with Disabilities Education Act (20 U.S.C. 1400 et seq.).
ø(j) CONSULTATION WITH INDIAN TRIBES.—In carrying out sub-
section (a), the Secretary shall, in a timely manner, meaningfully
consult with Indian Tribes and their representatives to ensure no-
tice of eligibility.
ø(k) DEFINITIONS.—In this section:
ø(1) ELEMENTARY SCHOOL.—The term ‘‘elementary school’’
has the meaning given such term in section 8101 of the Ele-
mentary and Secondary Education Act of 1965 (20 U.S.C.
7801).
ø(2) EVIDENCE-BASED.—The term ‘‘evidence-based’’ has the
meaning given such term in section 8101(21)(A)(i) of the Ele-
mentary and Secondary Education Act of 1965 (20 U.S.C.
7801(21)(A)(i)).
ø(3) NATIVE HAWAIIAN EDUCATIONAL ORGANIZATION.—The
term ‘‘Native Hawaiian educational organization’’ has the
meaning given such term in section 6207 of the Elementary
and Secondary Education Act of 1965 (20 U.S.C. 7517).
ø(4) LOCAL EDUCATIONAL AGENCY.—The term ‘‘local edu-
cational agency’’ has the meaning given such term in section
8101 of the Elementary and Secondary Education Act of 1965
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(20 U.S.C. 7801).
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ø(5) REGIONAL CORPORATION.—The term ‘‘Regional Corpora-
tion’’ has the meaning given the term in section 3 of the Alaska
Native Claims Settlement Act (43 U.S.C. 1602)).
ø(6) SCHOOL.—The term ‘‘school’’ means a public elementary
school or public secondary school.
ø(7) SCHOOL LEADER.—The term ‘‘school leader’’ has the
meaning given such term in section 8101 of the Elementary
and Secondary Education Act of 1965 (20 U.S.C. 7801).
ø(8) SECONDARY SCHOOL.—The term ‘‘secondary school’’ has
the meaning given such term in section 8101 of the Elemen-
tary and Secondary Education Act of 1965 (20 U.S.C. 7801).
ø(9) SECRETARY.—The term ‘‘Secretary’’ means the Secretary
of Education.
ø(10) SPECIALIZED INSTRUCTIONAL SUPPORT PERSONNEL.—The
term ‘‘specialized instructional support personnel’’ has the
meaning given such term in section 8101 of the Elementary
and Secondary Education Act of 1965 (20 U.S.C. 7801).
ø(11) STATE EDUCATIONAL AGENCY.—The term ‘‘State edu-
cational agency’’ has the meaning given such term in section
8101 of the Elementary and Secondary Education Act of 1965
(20 U.S.C. 7801).
ø(l) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to
be appropriated to carry out this section, $50,000,000 for each of
fiscal years 2019 through 2023.¿
SEC. 7134. GRANTS TO IMPROVE TRAUMA SUPPORT SERVICES AND
MENTAL HEALTH CARE FOR CHILDREN AND YOUTH IN
EDUCATIONAL SETTINGS.
(a) AUTHORIZATION OF GRANTS.—
(1) GRANTS, CONTRACTS, AND COOPERATIVE AGREEMENTS AU-
THORIZED.—The Secretary, in coordination with the Secretary of
Health and Human Services, is authorized to award grants to,
or enter into contracts or cooperative agreements with, an eligi-
ble entity for the purpose of increasing student, teacher, school
leader, and other school personnel access to evidence-based
trauma support services and mental health services by devel-
oping innovative initiatives, activities, or programs to connect
schools and local educational agencies, or tribal educational
agencies, as applicable, with community trauma-informed sup-
port and mental health systems, including such systems under
the Indian Health Service.
(2) RESERVATIONS.—From the total amount appropriated
under subsection (l) for a fiscal year, the Secretary shall re-
serve—
(A) not more than 3 percent to conduct the evaluation
under subsection (f); and
(B) not more than 2 percent for technical assistance and
administration.
(b) DURATION.—With respect to a grant, contract, or cooperative
agreement awarded or entered into under this section, the period
during which payments under such grant, contract or agreement are
made to the recipient may not exceed 5 years.
(c) USE OF FUNDS.—An eligible entity that receives or enters into
a grant, contract, or cooperative agreement under this section shall
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erative agreement for evidence-based initiatives, activities, or pro-
grams, which shall include at least 1 of the following:
(1) Enhancing, improving, or developing collaborative efforts
between schools, local educational agencies or tribal edu-
cational agencies, as applicable, and community mental health
and trauma-informed service delivery systems to provide, de-
velop, or improve prevention, referral, treatment, and support
services to students.
(2) Implementing trauma-informed models of support, includ-
ing trauma-informed, positive behavioral interventions and
supports in schools served by the eligible entity.
(3) Providing professional development to teachers, para-
professionals, school leaders, school-based mental health serv-
ices providers, and other specialized instructional support per-
sonnel employed by local educational agencies or tribal edu-
cational agencies, as applicable or schools served by the eligible
entity that—
(A) fosters safe and stable learning environments that
prevent and mitigate the effects of trauma, including
through social and emotional learning;
(B) improves school capacity to identify, refer, and pro-
vide services to students in need of trauma-informed sup-
port or mental health services, including by helping edu-
cators to identify the unique personal and contextual vari-
ables that influence the manifestation of trauma; and
(C) reflects the best practices for trauma-informed identi-
fication, referral, and support developed by the Interagency
Task Force on Trauma-Informed Care (as established by
section 7132).
(4) Providing trauma-informed support services and mental
health services to students at full-service community schools
served by the eligible entity.
(5) Engaging families and communities to increase awareness
of child trauma, which may include sharing best practices with
law enforcement regarding trauma-informed services and work-
ing with mental health professionals to provide interventions
and longer term coordinated care within the community for
children and youth who have experienced trauma and the fami-
lies of such children and youth.
(6) Evaluating the effectiveness of the initiatives, activities, or
programs carried out under this section in increasing student
access to evidence-based trauma support services and mental
health services.
(7) Establishing partnerships with or providing subgrants to
early childhood education programs or other eligible entities, to
include such entities in the evidence-based trauma-informed or
mental health initiatives, activities, and support services estab-
lished under this section in order to provide, develop, or im-
prove prevention, referral, treatment, and support services to
children and their families.
(8) Establishing new, or enhancing existing, evidence-based
educational, awareness, and prevention programs to improve
mental health and resiliency among teachers, paraprofessionals,
school leaders, school-based mental health services providers,
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by local educational agencies or tribal educational agencies, as
applicable, or schools served by the eligible entity.
(d) APPLICATIONS.—To be eligible to receive a grant, contract, or
cooperative agreement under this section, an eligible entity shall
submit an application to the Secretary at such time, in such man-
ner, and containing such information as the Secretary may reason-
ably require, which shall include the following:
(1) A description of the innovative initiatives, activities, or
programs to be funded under the grant, contract, or cooperative
agreement, including how such initiatives, activities, or pro-
grams will increase access to evidence-based trauma-informed
support services and mental health services for students, and,
as applicable, the families of such students.
(2) A description of how the initiatives, activities, or programs
will provide linguistically appropriate and culturally competent
services.
(3) A description of how the initiatives, activities, or programs
will support schools served by the eligible entity in improving
school climate in order to support an environment conducive to
learning.
(4) An assurance that—
(A) persons providing services under the initiative, activ-
ity, or program funded by the grant, contract, or coopera-
tive agreement are fully licensed or certified to provide such
services;
(B) teachers, school leaders, administrators, school-based
mental health services providers and other specialized in-
structional support personnel, representatives of local In-
dian Tribes or tribal organizations as appropriate, other
school personnel, individuals who have experience receiving
mental health services as children, and parents of students
participating in services under this section will be engaged
and involved in the design and implementation of the serv-
ices; and
(C) the eligible entity will comply with the evaluation re-
quired under subsection (f).
(5) A description of how the eligible entity will support and
integrate existing school-based services at schools served by the
eligible entity with the initiatives, activities, or programs fund-
ed under this section in order to provide trauma-informed sup-
port services or mental health services for students, as appro-
priate.
(6) A description of how the eligible entity will incorporate
peer support services into the initiatives, activities, or programs
to be funded under this section.
(7) A description of how the eligible entity will ensure that
initiatives, activities, or programs funded under this section are
accessible to and include students with disabilities.
(8) An assurance that the eligible entity will establish a local
interagency agreement under subsection (e) and comply with
such agreement.
(e) INTERAGENCY AGREEMENTS.—
(1) LOCAL INTERAGENCY AGREEMENTS.—In carrying out an
evidence-based initiative, activity, or program described in sub-
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cooperative agreement under this section, or a designee of such
entity, shall establish an interagency agreement between local
educational agencies, agencies responsible for early childhood
education programs, Head Start agencies (including Early
Head Start agencies), juvenile justice authorities, mental health
agencies, child welfare agencies, and other relevant agencies,
authorities, or entities in the community that will be involved
in the provision of services under such initiative, activity, or
program.
(2) CONTENTS.—The local interagency agreement required
under paragraph (1) shall specify, with respect to each agency,
authority, or entity that is a party to such agreement—
(A) the financial responsibility for any services provided
by such entity;
(B) the conditions and terms of responsibility for such
any services, including quality, accountability, and coordi-
nation of the services; and
(C) the conditions and terms of reimbursement of such
agencies, authorities, or entities, including procedures for
dispute resolution.
(f) EVALUATION.—The Secretary shall conduct a rigorous and
independent evaluation of the initiatives, activities, and programs
carried out by an eligible entity under this section and disseminate
evidence-based practices regarding trauma-informed support serv-
ices and mental health services.
(g) DISTRIBUTION OF AWARDS.—The Secretary shall ensure that
grants, contracts, and cooperative agreements awarded or entered
into under this section are equitably distributed among the geo-
graphical regions of the United States and among tribal, urban,
suburban, and rural populations.
(h) RULE OF CONSTRUCTION.—Nothing in this section shall be
construed—
(1) to prohibit an entity involved with an initiative, activity,
or program carried out under this section from reporting a
crime that is committed by a student to appropriate authorities;
or
(2) to prevent Federal, State, local, and tribal law enforce-
ment and judicial authorities from exercising their responsibil-
ities with regard to the application of Federal, State, local, and
tribal law to crimes committed by a student.
(i) SUPPLEMENT, NOT SUPPLANT.—Federal funds provided under
this section shall be used to supplement, and not supplant, other
Federal, State, or local funds available to carry out the initiatives,
activities, and programs described in this section.
(j) CONSULTATION REQUIRED.—In awarding or entering into
grants, contracts, and cooperative agreements under this section, the
Secretary shall, in a timely manner, meaningfully consult with In-
dian Tribes, Regional Corporations, Native Hawaiian Educational
Organizations, and their representatives to ensure notice of eligi-
bility.
(k) DEFINITIONS.—In this section:
(1) EARLY CHILDHOOD EDUCATION PROGRAM.—The term ‘‘early
childhood education program’’ has the meaning given such term
in section 103 of the Higher Education Act of 1965 (20 U.S.C.
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(2) ELIGIBLE ENTITY.—The term ‘‘eligible entity’’ means—
(A) a State educational agency;
(B) a local educational agency;
(C) an Indian Tribe (as defined in section 4 of the Indian
Self-Determination and Education Assistance Act) or their
tribal educational agency;
(D) the Bureau of Indian Education;
(E) a Regional Corporation;
(F) a Native Hawaiian educational organization; and
(G) State, Territory, and Tribal Lead Agencies admin-
istering the Child Care and Development Fund as de-
scribed in section 658D(a) of the Child Care and Develop-
ment Block Grant Act (42 U.S.C. 9858b(a)).
(3) ESEA TERMS.—
(A) The terms ‘‘elementary school’’, ‘‘evidence-based’’,
‘‘local educational agency’’, ‘‘paraprofessional’’, ‘‘parent’’,
‘‘professional development’’, ‘‘school leader’’, ‘‘secondary
school’’, ‘‘Secretary’’, ‘‘specialized instructional support per-
sonnel’’, and ‘‘State educational agency’’ have the meanings
given such terms in section 8101 of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 7801).
(B) The term ‘‘full-service community school’’ has the
meaning given such term in section 4622 of the Elementary
and Secondary Education Act of 1965 (20 U.S.C. 7272).
(C) The term ‘‘Native Hawaiian educational organiza-
tion’’ has the meaning given such term in section 6207 of
the Elementary and Secondary Education Act of 1965 (20
U.S.C. 7517).
(D) The term ‘‘school-based mental health services pro-
vider’’ has the meaning given the term in section 4102 of
the Elementary and Secondary Education Act of 1965 (20
U.S.C. 7112).
(4) REGIONAL CORPORATION.—The term ‘‘Regional Corpora-
tion’’ has the meaning given the term in section 3 of the Alaska
Native Claims Settlement Act (43 U.S.C. 1602)).
(5) SCHOOL.—The term ‘‘school’’ means a public elementary
school or public secondary school.
(l) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to
be appropriated to carry out this section, $50,000,000 for each of fis-
cal years 2023 through 2027.
* * * * * * *
HIGHER EDUCATION ACT OF 1965
* * * * * * *
TITLE I—GENERAL PROVISIONS
PART A—DEFINITIONS
* * * * * * *
SEC. 103. ADDITIONAL DEFINITIONS.
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In this Act:
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(1) AUTHORIZING COMMITTEES.—The term ‘‘authorizing com-
mittees’’ means the Committee on Health, Education, Labor,
and Pensions of the Senate and the Committee on Education
and Labor of the House of Representatives.
(2) COMBINATION OF INSTITUTIONS OF HIGHER EDUCATION.—
The term ‘‘combination of institutions of higher education’’
means a group of institutions of higher education that have en-
tered into a cooperative arrangement for the purpose of car-
rying out a common objective, or a public or private nonprofit
agency, organization, or institution designated or created by a
group of institutions of higher education for the purpose of car-
rying out a common objective on the group‘s behalf.
(3) CRITICAL FOREIGN LANGUAGE.—Except as otherwise pro-
vided, the term ‘‘critical foreign language’’ means each of the
languages contained in the list of critical languages designated
by the Secretary in the Federal Register on August 2, 1985 (50
Fed. Reg. 31412; promulgated under the authority of section
212(d) of the Education for Economic Security Act (repealed by
section 2303 of the Augustus F. Hawkins-Robert T. Stafford El-
ementary and Secondary School Improvement Amendments of
1988)), as updated by the Secretary from time to time and pub-
lished in the Federal Register, except that in the implementa-
tion of this definition with respect to a specific title, the Sec-
retary may set priorities according to the purposes of such title
and the national security, economic competitiveness, and edu-
cational needs of the United States.
(4) DEPARTMENT.—The term ‘‘Department’’ means the De-
partment of Education.
(5) DIPLOMA MILL.—The term ‘‘diploma mill’’ means an entity
that—
(A)(i) offers, for a fee, degrees, diplomas, or certificates,
that may be used to represent to the general public that
the individual possessing such a degree, diploma, or certifi-
cate has completed a program of postsecondary education
or training; and
(ii) requires such individual to complete little or no edu-
cation or coursework to obtain such degree, diploma, or
certificate; and
(B) lacks accreditation by an accrediting agency or asso-
ciation that is recognized as an accrediting agency or asso-
ciation of institutions of higher education (as such term is
defined in section 102) by—
(i) the Secretary pursuant to subpart 2 of part H of
title IV; or
(ii) a Federal agency, State government, or other or-
ganization or association that recognizes accrediting
agencies or associations.
(6) DISABILITY.—The term ‘‘disability’’ has the same meaning
given that term under øsection 3(2)¿ section 3 of the Americans
With Disabilities Act of 1990.
(7) DISTANCE EDUCATION.—
(A) IN GENERAL.—Except as otherwise provided, the
term‘‘distance education’’means education that uses one or
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(i) to deliver instruction to students who are sepa-
rated from the instructor; and
(ii) to support regular and substantive interaction
between the students and the instructor, syn-
chronously or asynchronously.
(B) INCLUSIONS.—For the purposes of subparagraph (A),
the technologies used may include—
(i) the Internet;
(ii) one-way and two-way transmissions through
open broadcast, closed circuit, cable, microwave,
broadband lines, fiber optics, satellite, or wireless com-
munications devices;
(iii) audio conferencing; or
(iv) video cassettes, DVDs, and CD–ROMs, if the
cassettes, DVDs, or CD–ROMs are used in a course in
conjunction with any of the technologies listed in
clauses (i) through (iii).
(8) EARLY CHILDHOOD EDUCATION PROGRAM.—The term
‘‘early childhood education program’’ means—
(A) a Head Start program or an Early Head Start pro-
gram carried out under the Head Start Act (42 U.S.C.
9831 et seq.), including a migrant or seasonal Head Start
program, an Indian Head Start program, or a Head Start
program or an Early Head Start program that also re-
ceives State funding;
(B) a State licensed or regulated child care program; or
(C) a program that—
(i) serves children from birth through age six that
addresses the children‘s cognitive (including language,
early literacy, and early mathematics), social, emo-
tional, and physical development; and
(ii) is—
(I) a State prekindergarten program;
(II) a program authorized under section 619 or
part C of the Individuals with Disabilities Edu-
cation Act; or
(III) a program operated by a local educational
agency.
(9) ELEMENTARY SCHOOL.—The term ‘‘elementary school’’ has
the same meaning given that term under section 8101 of the
Elementary and Secondary Education Act of 1965.
(10) GIFTED AND TALENTED.—The term ‘‘gifted and talented’’
has the same meaning given that term under section 8101 of
the Elementary and Secondary Education Act of 1965.
(11) LOCAL EDUCATIONAL AGENCY.—The term ‘‘local edu-
cational agency’’ has the same meaning given that term under
section 8101 of the Elementary and Secondary Education Act
of 1965.
(12) NEW BORROWER.—The term ‘‘new borrower’’ when used
with respect to any date means an individual who on that date
has no outstanding balance of principal or interest owing on
any loan made, insured, or guaranteed under title IV.
(13) NONPROFIT.—The term ‘‘nonprofit’’ as applied to a
school, agency, organization, or institution means a school,
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or more nonprofit corporations or associations, no part of the
net earnings of which inures, or may lawfully inure, to the
benefit of any private shareholder or individual.
(14) POVERTY LINE.—The term ‘‘poverty line’’ means the pov-
erty line (as defined in section 673(2) of the Community Serv-
ices Block Grant Act (42 U.S.C. 9902(2)) applicable to a family
of the size involved.
(15) SCHOOL OR DEPARTMENT OF DIVINITY.—The term ‘‘school
or department of divinity’’ means an institution, or a depart-
ment or a branch of an institution, the program of instruction
of which is designed for the education of students—
(A) to prepare the students to become ministers of reli-
gion or to enter upon some other religious vocation (or to
provide continuing training for any such vocation); or
(B) to prepare the students to teach theological subjects.
(16) SECONDARY SCHOOL.—The term ‘‘secondary school’’ has
the same meaning given that term under section 8101 of the
Elementary and Secondary Education Act of 1965.
(17) SECRETARY.—The term ‘‘Secretary’’ means the Secretary
of Education.
(18) SERVICE-LEARNING.—The term ‘‘service-learning’’ has the
same meaning given that term under section 101(23) of the
National and Community Service Act of 1990.
(19) SPECIAL EDUCATION TEACHER.—The term ‘‘special edu-
cation teacher’’ means teachers who teach children with dis-
abilities as defined in section 602 of the Individuals with Dis-
abilities Education Act.
(20) STATE; FREELY ASSOCIATED STATES.—
(A) STATE.—The term ‘‘State’’ includes, in addition to the
several States of the United States, the Commonwealth of
Puerto Rico, the District of Columbia, Guam, American
Samoa, the United States Virgin Islands, the Common-
wealth of the Northern Mariana Islands, and the Freely
Associated States.
(B) FREELY ASSOCIATED STATES.—The term ‘‘Freely Asso-
ciated States’’ means the Republic of the Marshall Islands,
the Federated States of Micronesia, and the Republic of
Palau.
(21) STATE EDUCATIONAL AGENCY.—The term ‘‘State edu-
cational agency’’ has the same meaning given that term under
section 8101 of the Elementary and Secondary Education Act
of 1965.
(22) STATE HIGHER EDUCATION AGENCY.—The term ‘‘State
higher education agency’’ means the officer or agency primarily
responsible for the State supervision of higher education.
(23) UNIVERSAL DESIGN.—The term‘‘universal design’’has the
meaning given the term in section 3 of the Assistive Tech-
nology Act of 1998 (29 U.S.C. 3002).
(24) UNIVERSAL DESIGN FOR LEARNING.—The term ‘‘universal
design for learning’’ means a scientifically valid framework for
guiding educational practice that—
(A) provides flexibility in the ways information is pre-
sented, in the ways students respond or demonstrate
knowledge and skills, and in the ways students are en-
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(B) reduces barriers in instruction, provides appropriate
accommodations, supports, and challenges, and maintains
high achievement expectations for all students, including
students with disabilities and students who are limited
English proficient.
* * * * * * *
TITLE IV—STUDENT ASSISTANCE
* * * * * * *
PART G—GENERAL PROVISIONS RELATING TO STUDENT ASSISTANCE
PROGRAMS
* * * * * * *
SEC. 487. PROGRAM PARTICIPATION AGREEMENTS.
(a) REQUIRED FOR PROGRAMS OF ASSISTANCE; CONTENTS.—In
order to be an eligible institution for the purposes of any program
authorized under this title, an institution must be an institution of
higher education or an eligible institution (as that term is defined
for the purpose of that program) and shall, except with respect to
a program under subpart 4 of part A, enter into a program partici-
pation agreement with the Secretary. The agreement shall condi-
tion the initial and continuing eligibility of an institution to partici-
pate in a program upon compliance with the following require-
ments:
(1) The institution will use funds received by it for any pro-
gram under this title and any interest or other earnings there-
on solely for the purpose specified in and in accordance with
the provision of that program.
(2) The institution shall not charge any student a fee for
processing or handling any application, form, or data required
to determine the student‘s eligibility for assistance under this
title or the amount of such assistance.
(3) The institution will establish and maintain such adminis-
trative and fiscal procedures and records as may be necessary
to ensure proper and efficient administration of funds received
from the Secretary or from students under this title, together
with assurances that the institution will provide, upon request
and in a timely fashion, information relating to the administra-
tive capability and financial responsibility of the institution
to—
(A) the Secretary;
(B) the appropriate guaranty agency; and
(C) the appropriate accrediting agency or association.
(4) The institution will comply with the provisions of sub-
section (c) of this section and the regulations prescribed under
that subsection, relating to fiscal eligibility.
(5) The institution will submit reports to the Secretary and,
in the case of an institution participating in a program under
part B or part E, to holders of loans made to the institution‘s
students under such parts at such times and containing such
information as the Secretary may reasonably require to carry
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(6) The institution will not provide any student with any
statement or certification to any lender under part B that
qualifies the student for a loan or loans in excess of the
amount that student is eligible to borrow in accordance with
sections 425(a), 428(a)(2), and 428(b)(1) (A) and (B).
(7) The institution will comply with the requirements of sec-
tion 485.
(8) In the case of an institution that advertises job placement
rates as a means of attracting students to enroll in the institu-
tion, the institution will make available to prospective stu-
dents, at or before the time of application (A) the most recent
available data concerning employment statistics, graduation
statistics, and any other information necessary to substantiate
the truthfulness of the advertisements, and (B) relevant State
licensing requirements of the State in which such institution
is located for any job for which the course of instruction is de-
signed to prepare such prospective students.
(9) In the case of an institution participating in a program
under part B or D, the institution will inform all eligible bor-
rowers enrolled in the institution about the availability and eli-
gibility of such borrowers for State grant assistance from the
State in which the institution is located, and will inform such
borrowers from another State of the source for further informa-
tion concerning such assistance from that State.
(10) The institution certifies that it has in operation a drug
abuse prevention program that is determined by the institution
to be accessible to any officer, employee, or student at the in-
stitution.
(11) In the case of any institution whose students receive fi-
nancial assistance pursuant to section 484(d), the institution
will make available to such students a program proven suc-
cessful in assisting students in obtaining a certificate of high
school equivalency.
(12) The institution certifies that—
(A) the institution has established a campus security
policy; and
(B) the institution has complied with the disclosure re-
quirements of section 485(f).
(13) The institution will not deny any form of Federal finan-
cial aid to any student who meets the eligibility requirements
of this title on the grounds that the student is participating in
a program of study abroad approved for credit by the institu-
tion.
(14)(A) The institution, in order to participate as an eligible
institution under part B or D, will develop a Default Manage-
ment Plan for approval by the Secretary as part of its initial
application for certification as an eligible institution and will
implement such Plan for two years thereafter.
(B) Any institution of higher education which changes own-
ership and any eligible institution which changes its status as
a parent or subordinate institution shall, in order to partici-
pate as an eligible institution under part B or D, develop a De-
fault Management Plan for approval by the Secretary and im-
plement such Plan for two years after its change of ownership
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or status.
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(C) This paragraph shall not apply in the case of an institu-
tion in which (i) neither the parent nor the subordinate institu-
tion has a cohort default rate in excess of 10 percent, and (ii)
the new owner of such parent or subordinate institution does
not, and has not, owned any other institution with a cohort de-
fault rate in excess of 10 percent.
(15) The institution acknowledges the authority of the Sec-
retary, guaranty agencies, lenders, accrediting agencies, the
Secretary of Veterans Affairs, and the State agencies under
subpart 1 of part H to share with each other any information
pertaining to the institution‘s eligibility to participate in pro-
grams under this title or any information on fraud and abuse.
(16)(A) The institution will not knowingly employ an indi-
vidual in a capacity that involves the administration of pro-
grams under this title, or the receipt of program funds under
this title, who has been convicted of, or has pled nolo
contendere or guilty to, a crime involving the acquisition, use,
or expenditure of funds under this title, or has been judicially
determined to have committed fraud involving funds under
this title or contract with an institution or third party servicer
that has been terminated under section 432 involving the ac-
quisition, use, or expenditure of funds under this title, or who
has been judicially determined to have committed fraud involv-
ing funds under this title.
(B) The institution will not knowingly contract with or em-
ploy any individual, agency, or organization that has been, or
whose officers or employees have been—
(i) convicted of, or pled nolo contendere or guilty to, a
crime involving the acquisition, use, or expenditure of
funds under this title; or
(ii) judicially determined to have committed fraud in-
volving funds under this title.
(17) The institution will complete surveys conducted as a
part of the Integrated Postsecondary Education Data System
(IPEDS) or any other Federal postsecondary institution data
collection effort, as designated by the Secretary, in a timely
manner and to the satisfaction of the Secretary.
(18) The institution will meet the requirements established
pursuant to section 485(g).
(19) The institution will not impose any penalty, including
the assessment of late fees, the denial of access to classes, li-
braries, or other institutional facilities, or the requirement that
the student borrow additional funds, on any student because of
the student‘s inability to meet his or her financial obligations
to the institution as a result of the delayed disbursement of the
proceeds of a loan made under this title due to compliance with
the provisions of this title, or delays attributable to the institu-
tion.
(20) The institution will not provide any commission, bonus,
or other incentive payment based directly or indirectly on suc-
cess in securing enrollments or financial aid to any persons or
entities engaged in any student recruiting or admission activi-
ties or in making decisions regarding the award of student fi-
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nancial assistance, except that this paragraph shall not apply
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71
to the recruitment of foreign students residing in foreign coun-
tries who are not eligible to receive Federal student assistance.
(21) The institution will meet the requirements established
by the Secretary and accrediting agencies or associations, and
will provide evidence to the Secretary that the institution has
the authority to operate within a State.
(22) The institution will comply with the refund policy estab-
lished pursuant to section 484B.
(23)(A) The institution, if located in a State to which section
4(b) of the National Voter Registration Act of 1993 (42 U.S.C.
1973gg–2(b)) does not apply, will make a good faith effort to
distribute a mail voter registration form, requested and re-
ceived from the State, to each student enrolled in a degree or
certificate program and physically in attendance at the institu-
tion, and to make such forms widely available to students at
the institution.
(B) The institution shall request the forms from the State
120 days prior to the deadline for registering to vote within the
State. If an institution has not received a sufficient quantity of
forms to fulfill this section from the State within 60 days prior
to the deadline for registering to vote in the State, the institu-
tion shall not be held liable for not meeting the requirements
of this section during that election year.
(C) This paragraph shall apply to general and special elec-
tions for Federal office, as defined in section 301(3) of the Fed-
eral Election Campaign Act of 1971 (2 U.S.C. 431(3)), and to
the elections for Governor or other chief executive within such
State).
(D) The institution shall be considered in compliance
with the requirements of subparagraph (A) for each stu-
dent to whom the institution electronically transmits a
message containing a voter registration form acceptable for
use in the State in which the institution is located, or an
Internet address where such a form can be downloaded, if
such information is in an electronic message devoted exclu-
sively to voter registration.
(24) In the case of a proprietary institution of higher edu-
cation (as defined in section 102(b)), such institution will de-
rive not less than ten percent of such institution‘s revenues
from sources other than Federal funds that are disbursed or
delivered to or on behalf of a student to be used to attend such
institution (referred to in this paragraph and subsection (d) as
‘‘Federal education assistance funds’’), as calculated in accord-
ance with subsection (d)(1), or will be subject to the sanctions
described in subsection (d)(2).
(25) In the case of an institution that participates in a loan
program under this title, the institution will—
(A) develop a code of conduct with respect to such loans
with which the institution‘s officers, employees, and agents
shall comply, that—
(i) prohibits a conflict of interest with the respon-
sibilities of an officer, employee, or agent of an institu-
tion with respect to such loans; and
(ii) at a minimum, includes the provisions described
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in subsection (e);
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(B) publish such code of conduct prominently on the
institution‘s website; and
(C) administer and enforce such code by, at a minimum,
requiring that all of the institution‘s officers, employees,
and agents with responsibilities with respect to such loans
be annually informed of the provisions of the code of con-
duct.
(26) The institution will, upon written request, disclose to
the alleged victim of any crime of violence (as that term is de-
fined in section 16 of title 18, United States Code), or a non-
forcible sex offense, the report on the results of any discipli-
nary proceeding conducted by such institution against a stu-
dent who is the alleged perpetrator of such crime or offense
with respect to such crime or offense. If the alleged victim of
such crime or offense is deceased as a result of such crime or
offense, the next of kin of such victim shall be treated as the
alleged victim for purposes of this paragraph.
(27) In the case of an institution that has entered into a pre-
ferred lender arrangement, the institution will at least annu-
ally compile, maintain, and make available for students at-
tending the institution, and the families of such students, a
list, in print or other medium, of the specific lenders for loans
made, insured, or guaranteed under this title or private edu-
cation loans that the institution recommends, promotes, or en-
dorses in accordance with such preferred lender arrangement.
In making such list, the institution shall comply with the re-
quirements of subsection (h).
(28)(A) The institution will, upon the request of an applicant
for a private education loan, provide to the applicant the form
required under section 128(e)(3) of the Truth in Lending Act
(15 U.S.C. 1638(e)(3)), and the information required to com-
plete such form, to the extent the institution possesses such in-
formation.
(B) For purposes of this paragraph, the term ‘‘private edu-
cation loan’’ has the meaning given such term in section 140
of the Truth in Lending Act.
(29) The institution certifies that the institution—
(A) has developed plans to effectively combat the unau-
thorized distribution of copyrighted material, including
through the use of a variety of technology-based deter-
rents; and
(B) will, to the extent practicable, offer alternatives to il-
legal downloading or peer-to-peer distribution of intellec-
tual property, as determined by the institution in consulta-
tion with the chief technology officer or other designated
officer of the institution.
(30)(A) The institution will carry out the following:
(i) Adopt policies that make any of the following docu-
mentation submitted by an individual sufficient to estab-
lish that such individual is an individual with a disability:
(I) Documentation that the individual has had an in-
dividualized education program (IEP) in accordance
with section 614(d) of the Individuals with Disabilities
Education Act (20 U.S.C. 1414(d)), including an IEP
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that may not be current on the date of the determina-
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73
tion that the individual has a disability. The institu-
tion may ask for additional documentation from an in-
dividual who had an IEP but who was subsequently
evaluated and determined to be ineligible for services
under the Individuals with Disabilities Education Act,
including an individual determined to be ineligible
during elementary school.
(II) Documentation describing services or accom-
modations provided to the individual pursuant to sec-
tion 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794) (commonly referred to as a ‘‘Section 504 plan’’).
(III) A plan or record of service for the individual
from a private school, a local educational agency, a
State educational agency, or an institution of higher
education provided in accordance with the Americans
with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.).
(IV) A record or evaluation from a relevant licensed
professional finding that the individual has a dis-
ability.
(V) A plan or record of disability from another insti-
tution of higher education.
(VI) Documentation of a disability due to service in
the uniformed services, as defined in section 484C(a).
(ii) Adopt policies that are transparent and explicit re-
garding information about the process by which the institu-
tion determines eligibility for accommodations.
(iii) Disseminate such information to students, parents,
and faculty in an accessible format, including during any
student orientation and making such information readily
available on a public website of the institution.
(B) Nothing in this paragraph shall be construed to preclude
an institution from establishing less burdensome criteria than
that described in subparagraph (A) to establish an individual
as an individual with a disability and therefore eligible for ac-
commodations.
(31) The institution will submit, for inclusion in the Inte-
grated Postsecondary Education Data System (IPEDS) or any
other Federal postsecondary institution data collection effort,
key data related to undergraduate students enrolled at the in-
stitution who are formally registered as students with disabil-
ities with the institution‘s office of disability services (or the
equivalent office), including the total number of students with
disabilities enrolled, the number of students accessing or receiv-
ing accommodations, the percentage of students with disabil-
ities of all undergraduate students, and the total number of un-
dergraduate certificates or degrees awarded to students with
disabilities. An institution shall not be required to submit the
information described in the preceding sentence if the number
of such students would reveal personally identifiable informa-
tion about an individual student.
(b) HEARINGS.—(1) An institution that has received written no-
tice of a final audit or program review determination and that de-
sires to have such determination reviewed by the Secretary shall
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submit to the Secretary a written request for review not later than
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45 days after receipt of notification of the final audit or program
review determination.
(2) The Secretary shall, upon receipt of written notice under
paragraph (1), arrange for a hearing and notify the institution
within 30 days of receipt of such notice the date, time, and place
of such hearing. Such hearing shall take place not later than 120
days from the date upon which the Secretary notifies the institu-
tion.
(c) AUDITS; FINANCIAL RESPONSIBILITY; ENFORCEMENT OF STAND-
ARDS.—(1) Notwithstanding any other provisions of this title, the
Secretary shall prescribe such regulations as may be necessary to
provide for—
(A)(i) except as provided in clauses (ii) and (iii), a financial
audit of an eligible institution with regard to the financial con-
dition of the institution in its entirety, and a compliance audit
of such institution with regard to any funds obtained by it
under this title or obtained from a student or a parent who has
a loan insured or guaranteed by the Secretary under this title,
on at least an annual basis and covering the period since the
most recent audit, conducted by a qualified, independent orga-
nization or person in accordance with standards established by
the Comptroller General for the audit of governmental organi-
zations, programs, and functions, and as prescribed in regula-
tions of the Secretary, the results of which shall be submitted
to the Secretary and shall be available to cognizant guaranty
agencies, eligible lenders, State agencies, and the appropriate
State agency notifying the Secretary under subpart 1 of part
H, except that the Secretary may modify the requirements of
this clause with respect to institutions of higher education that
are foreign institutions, and may waive such requirements
with respect to a foreign institution whose students receive less
than $500,000 in loans under this title during the award year
preceding the audit period;
(ii) with regard to an eligible institution which is audited
under chapter 75 of title 31, United States Code, deeming such
audit to satisfy the requirements of clause (i) for the period
covered by such audit; or
(iii) at the discretion of the Secretary, with regard to an eli-
gible institution (other than an eligible institution described in
section 102(a)(1)(C)) that has obtained less than $200,000 in
funds under this title during each of the 2 award years that
precede the audit period and submits a letter of credit payable
to the Secretary equal to not less than 1⁄2 of the annual poten-
tial liabilities of such institution as determined by the Sec-
retary, deeming an audit conducted every 3 years to satisfy the
requirements of clause (i), except for the award year imme-
diately preceding renewal of the institution‘s eligibility under
section 498(g);
(B) in matters not governed by specific program provisions,
the establishment of reasonable standards of financial respon-
sibility and appropriate institutional capability for the admin-
istration by an eligible institution of a program of student fi-
nancial aid under this title, including any matter the Secretary
deems necessary to the sound administration of the financial
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aid programs, such as the pertinent actions of any owner,
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75
shareholder, or person exercising control over an eligible insti-
tution;
(C)(i) except as provided in clause (ii), a compliance audit of
a third party servicer (other than with respect to the servicer‘s
functions as a lender if such functions are otherwise audited
under this part and such audits meet the requirements of this
clause), with regard to any contract with an eligible institution,
guaranty agency, or lender for administering or servicing any
aspect of the student assistance programs under this title, at
least once every year and covering the period since the most
recent audit, conducted by a qualified, independent organiza-
tion or person in accordance with standards established by the
Comptroller General for the audit of governmental organiza-
tions, programs, and functions, and as prescribed in regula-
tions of the Secretary, the results of which shall be submitted
to the Secretary; or
(ii) with regard to a third party servicer that is audited
under chapter 75 of title 31, United States Code, such audit
shall be deemed to satisfy the requirements of clause (i) for the
period covered by such audit;
(D)(i) a compliance audit of a secondary market with regard
to its transactions involving, and its servicing and collection of,
loans made under this title, at least once a year and covering
the period since the most recent audit, conducted by a quali-
fied, independent organization or person in accordance with
standards established by the Comptroller General for the audit
of governmental organizations, programs, and functions, and
as prescribed in regulations of the Secretary, the results of
which shall be submitted to the Secretary; or
(ii) with regard to a secondary market that is audited under
chapter 75 of title 31, United States Code, such audit shall be
deemed to satisfy the requirements of clause (i) for the period
covered by the audit;
(E) the establishment, by each eligible institution under part
B responsible for furnishing to the lender the statement re-
quired by section 428(a)(2)(A)(i), of policies and procedures by
which the latest known address and enrollment status of any
student who has had a loan insured under this part and who
has either formally terminated his enrollment, or failed to re-
enroll on at least a half-time basis, at such institution, shall
be furnished either to the holder (or if unknown, the insurer)
of the note, not later than 60 days after such termination or
failure to re-enroll;
(F) the limitation, suspension, or termination of the partici-
pation in any program under this title of an eligible institution,
or the imposition of a civil penalty under paragraph (3)(B)
whenever the Secretary has determined, after reasonable no-
tice and opportunity for hearing, that such institution has vio-
lated or failed to carry out any provision of this title, any regu-
lation prescribed under this title, or any applicable special ar-
rangement, agreement, or limitation, except that no period of
suspension under this section shall exceed 60 days unless the
institution and the Secretary agree to an extension or unless
limitation or termination proceedings are initiated by the Sec-
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retary within that period of time;
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(G) an emergency action against an institution, under which
the Secretary shall, effective on the date on which a notice and
statement of the basis of the action is mailed to the institution
(by registered mail, return receipt requested), withhold funds
from the institution or its students and withdraw the
institution‘s authority to obligate funds under any program
under this title, if the Secretary—
(i) receives information, determined by the Secretary to
be reliable, that the institution is violating any provision
of this title, any regulation prescribed under this title, or
any applicable special arrangement, agreement, or limita-
tion,
(ii) determines that immediate action is necessary to
prevent misuse of Federal funds, and
(iii) determines that the likelihood of loss outweighs the
importance of the procedures prescribed under subpara-
graph (D) for limitation, suspension, or termination,
except that an emergency action shall not exceed 30 days un-
less limitation, suspension, or termination proceedings are ini-
tiated by the Secretary against the institution within that pe-
riod of time, and except that the Secretary shall provide the in-
stitution an opportunity to show cause, if it so requests, that
the emergency action is unwarranted;
(H) the limitation, suspension, or termination of the eligi-
bility of a third party servicer to contract with any institution
to administer any aspect of an institution‘s student assistance
program under this title, or the imposition of a civil penalty
under paragraph (3)(B), whenever the Secretary has deter-
mined, after reasonable notice and opportunity for a hearing,
that such organization, acting on behalf of an institution, has
violated or failed to carry out any provision of this title, any
regulation prescribed under this title, or any applicable special
arrangement, agreement, or limitation, except that no period of
suspension under this subparagraph shall exceed 60 days un-
less the organization and the Secretary agree to an extension,
or unless limitation or termination proceedings are initiated by
the Secretary against the individual or organization within
that period of time; and
(I) an emergency action against a third party servicer that
has contracted with an institution to administer any aspect of
the institution‘s student assistance program under this title,
under which the Secretary shall, effective on the date on which
a notice and statement of the basis of the action is mailed to
such individual or organization (by registered mail, return re-
ceipt requested), withhold funds from the individual or organi-
zation and withdraw the individual or organization‘s authority
to act on behalf of an institution under any program under this
title, if the Secretary—
(i) receives information, determined by the Secretary to
be reliable, that the individual or organization, acting on
behalf of an institution, is violating any provision of this
title, any regulation prescribed under this title, or any ap-
plicable special arrangement, agreement, or limitation,
(ii) determines that immediate action is necessary to
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prevent misuse of Federal funds, and
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(iii) determines that the likelihood of loss outweighs the
importance of the procedures prescribed under subpara-
graph (F), for limitation, suspension, or termination,
except that an emergency action shall not exceed 30 days un-
less the limitation, suspension, or termination proceedings are
initiated by the Secretary against the individual or organiza-
tion within that period of time, and except that the Secretary
shall provide the individual or organization an opportunity to
show cause, if it so requests, that the emergency action is un-
warranted.
(2) If an individual who, or entity that, exercises substantial con-
trol, as determined by the Secretary in accordance with the defini-
tion of substantial control in subpart 3 of part H, over one or more
institutions participating in any program under this title, or, for
purposes of paragraphs (1) (H) and (I), over one or more organiza-
tions that contract with an institution to administer any aspect of
the institution‘s student assistance program under this title, is de-
termined to have committed one or more violations of the require-
ments of any program under this title, or has been suspended or
debarred in accordance with the regulations of the Secretary, the
Secretary may use such determination, suspension, or debarment
as the basis for imposing an emergency action on, or limiting, sus-
pending, or terminating, in a single proceeding, the participation of
any or all institutions under the substantial control of that indi-
vidual or entity.
(3)(A) Upon determination, after reasonable notice and oppor-
tunity for a hearing, that an eligible institution has engaged in
substantial misrepresentation of the nature of its educational pro-
gram, its financial charges, or the employability of its graduates,
the Secretary may suspend or terminate the eligibility status for
any or all programs under this title of any otherwise eligible insti-
tution, in accordance with procedures specified in paragraph (1)(D)
of this subsection, until the Secretary finds that such practices
have been corrected.
(B)(i) Upon determination, after reasonable notice and oppor-
tunity for a hearing, that an eligible institution—
(I) has violated or failed to carry out any provision of this
title or any regulation prescribed under this title; or
(II) has engaged in substantial misrepresentation of the na-
ture of its educational program, its financial charges, and the
employability of its graduates,
the Secretary may impose a civil penalty upon such institution of
not to exceed $25,000 for each violation or misrepresentation.
(ii) Any civil penalty may be compromised by the Secretary. In
determining the amount of such penalty, or the amount agreed
upon in compromise, the appropriateness of the penalty to the size
of the institution of higher education subject to the determination,
and the gravity of the violation, failure, or misrepresentation shall
be considered. The amount of such penalty, when finally deter-
mined, or the amount agreed upon in compromise, may be deducted
from any sums owing by the United States to the institution
charged.
(4) The Secretary shall publish a list of State agencies which the
Secretary determines to be reliable authority as to the quality of
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public postsecondary vocational education in their respective States
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78
for the purpose of determining eligibility for all Federal student as-
sistance programs.
(5) The Secretary shall make readily available to appropriate
guaranty agencies, eligible lenders, State agencies notifying the
Secretary under subpart 1 of part H, and accrediting agencies or
associations the results of the audits of eligible institutions con-
ducted pursuant to paragraph (1)(A).
(6) The Secretary is authorized to provide any information col-
lected as a result of audits conducted under this section, together
with audit information collected by guaranty agencies, to any Fed-
eral or State agency having responsibilities with respect to student
financial assistance, including those referred to in subsection
(a)(15) of this section.
(7) Effective with respect to any audit conducted under this sub-
section after December 31, 1988, if, in the course of conducting any
such audit, the personnel of the Department of Education discover,
or are informed of, grants or other assistance provided by an insti-
tution in accordance with this title for which the institution has not
received funds appropriated under this title (in the amount nec-
essary to provide such assistance), including funds for which reim-
bursement was not requested prior to such discovery or informa-
tion, such institution shall be permitted to offset that amount
against any sums determined to be owed by the institution pursu-
ant to such audit, or to receive reimbursement for that amount (if
the institution does not owe any such sums).
(d) IMPLEMENTATION OF NON-FEDERAL REVENUE REQUIRE-
MENT.—
(1) CALCULATION.—In making calculations under subsection
(a)(24), a proprietary institution of higher education shall—
(A) use the cash basis of accounting, except in the case
of loans described in subparagraph (D)(i) that are made by
the proprietary institution of higher education;
(B) consider as revenue only those funds generated by
the institution from—
(i) tuition, fees, and other institutional charges for
students enrolled in programs eligible for assistance
under this title;
(ii) activities conducted by the institution that are
necessary for the education and training of the
institution‘s students, if such activities are—
(I) conducted on campus or at a facility under
the control of the institution;
(II) performed under the supervision of a mem-
ber of the institution‘s faculty; and
(III) required to be performed by all students in
a specific educational program at the institution;
and
(iii) funds paid by a student, or on behalf of a stu-
dent by a party other than the institution, for an edu-
cation or training program that is not eligible for
funds under this title, if the program—
(I) is approved or licensed by the appropriate
State agency;
(II) is accredited by an accrediting agency recog-
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nized by the Secretary; or
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(III) provides an industry-recognized credential
or certification;
(C) presume that any Federal education assistance funds
that are disbursed or delivered to or on behalf of a student
will be used to pay the student‘s tuition, fees, or other in-
stitutional charges, regardless of whether the institution
credits those funds to the student‘s account or pays those
funds directly to the student, except to the extent that the
student‘s tuition, fees, or other institutional charges are
satisfied by—
(i) grant funds provided by non-Federal public agen-
cies or private sources independent of the institution;
(ii) funds provided under a contractual arrangement
with a Federal, State, or local government agency for
the purpose of providing job training to low-income in-
dividuals who are in need of that training;
(iii) funds used by a student from savings plans for
educational expenses established by or on behalf of the
student and which qualify for special tax treatment
under the Internal Revenue Code of 1986; or
(iv) institutional scholarships described in subpara-
graph (D)(iii);
(D) include institutional aid as revenue to the school
only as follows:
(i) in the case of loans made by a proprietary insti-
tution of higher education on or after July 1, 2008 and
prior to July 1, 2012, the net present value of such
loans made by the institution during the applicable in-
stitutional fiscal year accounted for on an accrual
basis and estimated in accordance with generally ac-
cepted accounting principles and related standards
and guidance, if the loans—
(I) are bona fide as evidenced by enforceable
promissory notes;
(II) are issued at intervals related to the
institution‘s enrollment periods; and
(III) are subject to regular loan repayments and
collections;
(ii) in the case of loans made by a proprietary insti-
tution of higher education on or after July 1, 2012,
only the amount of loan repayments received during
the applicable institutional fiscal year, excluding re-
payments on loans made and accounted for as speci-
fied in clause (i); and
(iii) in the case of scholarships provided by a propri-
etary institution of higher education, only those schol-
arships provided by the institution in the form of mon-
etary aid or tuition discounts based upon the academic
achievements or financial need of students, disbursed
during each fiscal year from an established restricted
account, and only to the extent that funds in that ac-
count represent designated funds from an outside
source or from income earned on those funds;
(E) in the case of each student who receives a loan on
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thorized under section 428H or that is a Federal Direct
Unsubsidized Stafford Loan, treat as revenue received by
the institution from sources other than funds received
under this title, the amount by which the disbursement of
such loan received by the institution exceeds the limit on
such loan in effect on the day before the date of enactment
of the Ensuring Continued Access to Student Loans Act of
2008; and
(F) exclude from revenues—
(i) the amount of funds the institution received
under part C, unless the institution used those funds
to pay a student‘s institutional charges;
(ii) the amount of funds the institution received
under subpart 4 of part A;
(iii) the amount of funds provided by the institution
as matching funds for a program under this title;
(iv) the amount of funds provided by the institution
for a program under this title that are required to be
refunded or returned; and
(v) the amount charged for books, supplies, and
equipment, unless the institution includes that
amount as tuition, fees, or other institutional charges.
(2) SANCTIONS.—
(A) INELIGIBILITY.—A proprietary institution of higher
education that fails to meet a requirement of subsection
(a)(24) for two consecutive institutional fiscal years shall
be ineligible to participate in the programs authorized by
this title for a period of not less than two institutional fis-
cal years. To regain eligibility to participate in the pro-
grams authorized by this title, a proprietary institution of
higher education shall demonstrate compliance with all eli-
gibility and certification requirements under section 498
for a minimum of two institutional fiscal years after the
institutional fiscal year in which the institution became in-
eligible.
(B) ADDITIONAL ENFORCEMENT.—In addition to such
other means of enforcing the requirements of this title as
may be available to the Secretary, if a proprietary institu-
tion of higher education fails to meet a requirement of sub-
section (a)(24) for any institutional fiscal year, then the
institution‘s eligibility to participate in the programs au-
thorized by this title becomes provisional for the two insti-
tutional fiscal years after the institutional fiscal year in
which the institution failed to meet the requirement of
subsection (a)(24), except that such provisional eligibility
shall terminate—
(i) on the expiration date of the institution‘s pro-
gram participation agreement under this subsection
that is in effect on the date the Secretary determines
that the institution failed to meet the requirement of
subsection (a)(24); or
(ii) in the case that the Secretary determines that
the institution failed to meet a requirement of sub-
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81
years, on the date the institution is determined ineli-
gible in accordance with subparagraph (A).
(3) PUBLICATION ON COLLEGE NAVIGATOR WEBSITE.—The Sec-
retary shall publicly disclose on the College Navigator
website—
(A) the identity of any proprietary institution of higher
education that fails to meet a requirement of subsection
(a)(24); and
(B) the extent to which the institution failed to meet
such requirement.
(4) REPORT TO CONGRESS.—Not later than July 1, 2009, and
July 1 of each succeeding year, the Secretary shall submit to
the authorizing committees a report that contains, for each
proprietary institution of higher education that receives assist-
ance under this title, as provided in the audited financial state-
ments submitted to the Secretary by each institution pursuant
to the requirements of subsection (a)(24)—
(A) the amount and percentage of such institution‘s reve-
nues received from sources under this title; and
(B) the amount and percentage of such institution‘s reve-
nues received from other sources.
(e) CODE OF CONDUCT REQUIREMENTS.—An institution of higher
education‘s code of conduct, as required under subsection (a)(25),
shall include the following requirements:
(1) BAN ON REVENUE-SHARING ARRANGEMENTS.—
(A) PROHIBITION.—The institution shall not enter into
any revenue-sharing arrangement with any lender.
(B) DEFINITION.—For purposes of this paragraph, the
term ‘‘revenue-sharing arrangement’’ means an arrange-
ment between an institution and a lender under which—
(i) a lender provides or issues a loan that is made,
insured, or guaranteed under this title to students at-
tending the institution or to the families of such stu-
dents; and
(ii) the institution recommends the lender or the
loan products of the lender and in exchange, the lend-
er pays a fee or provides other material benefits, in-
cluding revenue or profit sharing, to the institution, an
officer or employee of the institution, or an agent.
(2) GIFT BAN.—
(A) PROHIBITION.—No officer or employee of the institu-
tion who is employed in the financial aid office of the insti-
tution or who otherwise has responsibilities with respect to
education loans, or agent who has responsibilities with re-
spect to education loans, shall solicit or accept any gift
from a lender, guarantor, or servicer of education loans.
(B) DEFINITION OF GIFT.—
(i) IN GENERAL.—In this paragraph, the term ‘‘gift’’
means any gratuity, favor, discount, entertainment,
hospitality, loan, or other item having a monetary
value of more than a de minimus amount. The term
includes a gift of services, transportation, lodging, or
meals, whether provided in kind, by purchase of a
ticket, payment in advance, or reimbursement after
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(ii) EXCEPTIONS.—The term ‘‘gift’’ shall not include
any of the following:
(I) Standard material, activities, or programs on
issues related to a loan, default aversion, default
prevention, or financial literacy, such as a bro-
chure, a workshop, or training.
(II) Food, refreshments, training, or informa-
tional material furnished to an officer or employee
of an institution, or to an agent, as an integral
part of a training session that is designed to im-
prove the service of a lender, guarantor, or
servicer of education loans to the institution, if
such training contributes to the professional de-
velopment of the officer, employee, or agent.
(III) Favorable terms, conditions, and borrower
benefits on an education loan provided to a stu-
dent employed by the institution if such terms,
conditions, or benefits are comparable to those
provided to all students of the institution.
(IV) Entrance and exit counseling services pro-
vided to borrowers to meet the institution‘s re-
sponsibilities for entrance and exit counseling as
required by subsections (b) and (l) of section 485,
as long as—
(aa) the institution‘s staff are in control of
the counseling, (whether in person or via elec-
tronic capabilities); and
(bb) such counseling does not promote the
products or services of any specific lender.
(V) Philanthropic contributions to an institution
from a lender, servicer, or guarantor of education
loans that are unrelated to education loans or any
contribution from any lender, guarantor, or
servicer that is not made in exchange for any ad-
vantage related to education loans.
(VI) State education grants, scholarships, or fi-
nancial aid funds administered by or on behalf of
a State.
(iii) RULE FOR GIFTS TO FAMILY MEMBERS.—For pur-
poses of this paragraph, a gift to a family member of
an officer or employee of an institution, to a family
member of an agent, or to any other individual based
on that individual‘s relationship with the officer, em-
ployee, or agent, shall be considered a gift to the offi-
cer, employee, or agent if—
(I) the gift is given with the knowledge and ac-
quiescence of the officer, employee, or agent; and
(II) the officer, employee, or agent has reason to
believe the gift was given because of the official
position of the officer, employee, or agent.
(3) CONTRACTING ARRANGEMENTS PROHIBITED.—
(A) PROHIBITION.—An officer or employee who is em-
ployed in the financial aid office of the institution or who
otherwise has responsibilities with respect to education
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education loans, shall not accept from any lender or affil-
iate of any lender any fee, payment, or other financial ben-
efit (including the opportunity to purchase stock) as com-
pensation for any type of consulting arrangement or other
contract to provide services to a lender or on behalf of a
lender relating to education loans.
(B) EXCEPTIONS.—Nothing in this subsection shall be
construed as prohibiting—
(i) an officer or employee of an institution who is not
employed in the institution‘s financial aid office and
who does not otherwise have responsibilities with re-
spect to education loans, or an agent who does not
have responsibilities with respect to education loans,
from performing paid or unpaid service on a board of
directors of a lender, guarantor, or servicer of edu-
cation loans;
(ii) an officer or employee of the institution who is
not employed in the institution‘s financial aid office
but who has responsibility with respect to education
loans as a result of a position held at the institution,
or an agent who has responsibility with respect to edu-
cation loans, from performing paid or unpaid service
on a board of directors of a lender, guarantor, or
servicer of education loans, if the institution has a
written conflict of interest policy that clearly sets forth
that officers, employees, or agents must recuse them-
selves from participating in any decision of the board
regarding education loans at the institution; or
(iii) an officer, employee, or contractor of a lender,
guarantor, or servicer of education loans from serving
on a board of directors, or serving as a trustee, of an
institution, if the institution has a written conflict of
interest policy that the board member or trustee must
recuse themselves from any decision regarding edu-
cation loans at the institution.
(4) INTERACTION WITH BORROWERS.—The institution shall
not—
(A) for any first-time borrower, assign, through award
packaging or other methods, the borrower‘s loan to a par-
ticular lender; or
(B) refuse to certify, or delay certification of, any loan
based on the borrower‘s selection of a particular lender or
guaranty agency.
(5) PROHIBITION ON OFFERS OF FUNDS FOR PRIVATE LOANS.—
(A) PROHIBITION.—The institution shall not request or
accept from any lender any offer of funds to be used for
private education loans (as defined in section 140 of the
Truth in Lending Act), including funds for an opportunity
pool loan, to students in exchange for the institution pro-
viding concessions or promises regarding providing the
lender with—
(i) a specified number of loans made, insured, or
guaranteed under this title;
(ii) a specified loan volume of such loans; or
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(B) DEFINITION OF OPPORTUNITY POOL LOAN.—In this
paragraph, the term ‘‘opportunity pool loan’’ means a pri-
vate education loan made by a lender to a student attend-
ing the institution or the family member of such a student
that involves a payment, directly or indirectly, by such in-
stitution of points, premiums, additional interest, or finan-
cial support to such lender for the purpose of such lender
extending credit to the student or the family.
(6) BAN ON STAFFING ASSISTANCE.—
(A) PROHIBITION.—The institution shall not request or
accept from any lender any assistance with call center
staffing or financial aid office staffing.
(B) CERTAIN ASSISTANCE PERMITTED.—Nothing in para-
graph (1) shall be construed to prohibit the institution
from requesting or accepting assistance from a lender re-
lated to—
(i) professional development training for financial
aid administrators;
(ii) providing educational counseling materials, fi-
nancial literacy materials, or debt management mate-
rials to borrowers, provided that such materials dis-
close to borrowers the identification of any lender that
assisted in preparing or providing such materials; or
(iii) staffing services on a short-term, nonrecurring
basis to assist the institution with financial aid-re-
lated functions during emergencies, including State-
declared or federally declared natural disasters, feder-
ally declared national disasters, and other localized
disasters and emergencies identified by the Secretary.
(7) ADVISORY BOARD COMPENSATION.—Any employee who is
employed in the financial aid office of the institution, or who
otherwise has responsibilities with respect to education loans
or other student financial aid of the institution, and who serves
on an advisory board, commission, or group established by a
lender, guarantor, or group of lenders or guarantors, shall be
prohibited from receiving anything of value from the lender,
guarantor, or group of lenders or guarantors, except that the
employee may be reimbursed for reasonable expenses incurred
in serving on such advisory board, commission, or group.
(f) INSTITUTIONAL REQUIREMENTS FOR TEACH-OUTS.—
(1) IN GENERAL.—In the event the Secretary initiates the
limitation, suspension, or termination of the participation of an
institution of higher education in any program under this title
under the authority of subsection (c)(1)(F) or initiates an emer-
gency action under the authority of subsection (c)(1)(G) and its
prescribed regulations, the Secretary shall require that institu-
tion to prepare a teach-out plan for submission to the
institution‘s accrediting agency or association in compliance
with section 496(c)(3), the Secretary‘s regulations on teach-out
plans, and the standards of the institution‘s accrediting agency
or association.
(2) TEACH-OUT PLAN DEFINED.—In this subsection, the term
‘‘teach-out plan’’ means a written plan that provides for the eq-
uitable treatment of students if an institution of higher edu-
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85
their program of study, and may include, if required by the
institution‘s accrediting agency or association, an agreement
between institutions for such a teach-out plan.
(g) INSPECTOR GENERAL REPORT ON GIFT BAN VIOLATIONS.—The
Inspector General of the Department shall—
(1) submit an annual report to the authorizing committees
identifying all violations of an institution‘s code of conduct that
the Inspector General has substantiated during the preceding
year relating to the gift ban provisions described in subsection
(e)(2); and
(2) make the report available to the public through the
Department‘s website.
(h) PREFERRED LENDER LIST REQUIREMENTS.—
(1) IN GENERAL.—In compiling, maintaining, and making
available a preferred lender list as required under subsection
(a)(27), the institution will—
(A) clearly and fully disclose on such preferred lender
list—
(i) not less than the information required to be dis-
closed under section 153(a)(2)(A);
(ii) why the institution has entered into a preferred
lender arrangement with each lender on the preferred
lender list, particularly with respect to terms and con-
ditions or provisions favorable to the borrower; and
(iii) that the students attending the institution, or
the families of such students, do not have to borrow
from a lender on the preferred lender list;
(B) ensure, through the use of the list of lender affiliates
provided by the Secretary under paragraph (2), that—
(i) there are not less than three lenders of loans
made under part B that are not affiliates of each other
included on the preferred lender list and, if the insti-
tution recommends, promotes, or endorses private edu-
cation loans, there are not less than two lenders of pri-
vate education loans that are not affiliates of each
other included on the preferred lender list; and
(ii) the preferred lender list under this paragraph—
(I) specifically indicates, for each listed lender,
whether the lender is or is not an affiliate of each
other lender on the preferred lender list; and
(II) if a lender is an affiliate of another lender
on the preferred lender list, describes the details
of such affiliation;
(C) prominently disclose the method and criteria used by
the institution in selecting lenders with which to enter into
preferred lender arrangements to ensure that such lenders
are selected on the basis of the best interests of the bor-
rowers, including—
(i) payment of origination or other fees on behalf of
the borrower;
(ii) highly competitive interest rates, or other terms
and conditions or provisions of loans under this title or
private education loans;
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(iv) additional benefits beyond the standard terms
and conditions or provisions for such loans;
(D) exercise a duty of care and a duty of loyalty to com-
pile the preferred lender list under this paragraph without
prejudice and for the sole benefit of the students attending
the institution, or the families of such students;
(E) not deny or otherwise impede the borrower‘s choice
of a lender or cause unnecessary delay in loan certification
under this title for those borrowers who choose a lender
that is not included on the preferred lender list; and
(F) comply with such other requirements as the Sec-
retary may prescribe by regulation.
(2) LENDER AFFILIATES LIST.—
(A) IN GENERAL.—The Secretary shall maintain and reg-
ularly update a list of lender affiliates of all eligible lend-
ers, and shall provide such list to institutions for use in
carrying out paragraph (1)(B).
(B) USE OF MOST RECENT LIST.—An institution shall use
the most recent list of lender affiliates provided by the Sec-
retary under subparagraph (A) in carrying out paragraph
(1)(B).
(i) DEFINITIONS.—For the purpose of this section:
(1) AGENT.—The term ‘‘agent’’ has the meaning given the
term in section 151.
(2) AFFILIATE.—The term ‘‘affiliate’’ means a person that con-
trols, is controlled by, or is under common control with another
person. A person controls, is controlled by, or is under common
control with another person if—
(A) the person directly or indirectly, or acting through
one or more others, owns, controls, or has the power to
vote five percent or more of any class of voting securities
of such other person;
(B) the person controls, in any manner, the election of a
majority of the directors or trustees of such other person;
or
(C) the Secretary determines (after notice and oppor-
tunity for a hearing) that the person directly or indirectly
exercises a controlling interest over the management or
policies of such other person‘s education loans.
(3) EDUCATION LOAN.—The term ‘‘education loan’’ has the
meaning given the term in section 151.
(4) ELIGIBLE INSTITUTION.—The term ‘‘eligible institution’’
means any such institution described in section 102 of this Act.
(5) OFFICER.—The term ‘‘officer’’ has the meaning given the
term in section 151.
(6) PREFERRED LENDER ARRANGEMENT.—The term ‘‘preferred
lender arrangement’’ has the meaning given the term in sec-
tion 151.
(j) CONSTRUCTION.—Nothing in the amendments made by the
Higher Education Amendments of 1992 shall be construed to pro-
hibit an institution from recording, at the cost of the institution, a
hearing referred to in subsection (b)(2), subsection (c)(1)(D), or sub-
paragraph (A) or (B)(i) of subsection (c)(2), of this section to create
a record of the hearing, except the unavailability of a recording
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shall not serve to delay the completion of the proceeding. The Sec-
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retary shall allow the institution to use any reasonable means, in-
cluding stenographers, of recording the hearing.
* * * * * * *
TITLE VII—GRADUATE AND POSTSEC-
ONDARY IMPROVEMENT PROGRAMS
* * * * * * *
PART D—PROGRAMS TO PROVIDE STUDENTS
WITH DISABILITIES WITH A QUALITY HIGH-
ER EDUCATION
* * * * * * *
Subpart 4—National Technical Assistance Center;
Coordinating Center
* * * * * * *
SEC. 777. NATIONAL TECHNICAL ASSISTANCE CENTER; COORDI-
NATING CENTER.
(a) NATIONAL CENTER.—
(1) IN GENERAL.—øFrom amounts appropriated under section
778,¿ From amounts appropriated under paragraph (5), the
Secretary shall award a grant to, or enter into a contract or co-
operative agreement with, an eligible entity to provide for the
establishment and support of a National Center for Informa-
tion and Technical Support for Postsecondary Students with
Disabilities (in this subsection referred to as the ‘‘National
Center’’). The National Center shall carry out the duties set
forth in paragraph (4).
(2) ADMINISTRATION.—The program under this section shall
be administered by the office in the Department that admin-
isters other postsecondary education programs.
(3) ELIGIBLE ENTITY.—In this subpart, the term ‘‘eligible en-
tity’’ means an institution of higher education, a nonprofit or-
ganization, or partnership of two or more such institutions or
organizations, with demonstrated expertise in—
(A) supporting students with disabilities in postsec-
ondary education;
(B) technical knowledge necessary for the dissemination
of information in accessible formats;
(C) working with diverse types of institutions of higher
education, including community colleges; and
(D) the subjects supported by the grants, contracts, or
cooperative agreements authorized in subparts 1, 2, and 3.
(4) DUTIES.—The duties of the National Center shall include
the following:
(A) ASSISTANCE TO STUDENTS AND FAMILIES.—The Na-
tional Center shall provide information and technical as-
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sistance to students with disabilities and the families of
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students with disabilities to support students across the
broad spectrum of disabilities, including—
(i) information to assist individuals with disabilities
who are prospective students of an institution of high-
er education in planning for postsecondary education
while the students are in secondary school;
(ii) information and technical assistance provided to
individualized education program teams (as defined in
section 614(d)(1) of the Individuals with Disabilities
Education Act) for secondary school students with dis-
abilities, and to early outreach and student services
programs, including programs authorized under sub-
parts 2, 4, and 5 of part A of title IV, to support stu-
dents across a broad spectrum of disabilities with the
successful transition to postsecondary education;
(iii) research-based supports, services, and accom-
modations which are available in postsecondary set-
tings, including services provided by other agencies
such as vocational rehabilitation;
(iv) information on student mentoring and net-
working opportunities for students with disabilities;
and
(v) effective recruitment and transition programs at
postsecondary educational institutions.
(B) ASSISTANCE TO INSTITUTIONS OF HIGHER EDU-
CATION.—The National Center shall provide information
and technical assistance to faculty, staff, and administra-
tors of institutions of higher education to improve the serv-
ices provided to, the accommodations for, the retention
rates of, and the completion rates of, students with disabil-
ities in higher education settings, which may include—
(i) collection and dissemination of best and prom-
ising practices and materials for accommodating and
supporting students with disabilities, including prac-
tices and materials supported by the grants, contracts,
or cooperative agreements authorized under subparts
1, 2, and 3;
(ii) development and provision of training modules
for higher education faculty on exemplary practices for
accommodating and supporting postsecondary stu-
dents with disabilities across a range of academic
fields, which may include universal design for learning
and practices supported by the grants, contracts, or co-
operative agreements authorized under subparts 1, 2,
and 3; and
(iii) development of technology-based tutorials for
higher education faculty and staff, including new fac-
ulty and graduate students, on best and promising
practices related to support and retention of students
with disabilities in postsecondary education.
(C) INFORMATION COLLECTION AND DISSEMINATION.—The
National Center shall be responsible for building, main-
taining, and updating a database of disability support
services information with respect to institutions of higher
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base of disabilities support services information with re-
spect to institutions of higher education. Such database
shall be available to the general public through a website
built to high technical standards of accessibility prac-
ticable for the broad spectrum of individuals with disabil-
ities. Such database and website shall include available in-
formation on—
(i) disability documentation requirements;
(ii) support services available;
(iii) links to financial aid;
(iv) accommodations policies;
(v) accessible instructional materials;
(vi) other topics relevant to students with disabil-
ities; and
(vii) the information in the report described in sub-
paragraph (E).
(D) DISABILITY SUPPORT SERVICES.—The National Center
shall work with organizations and individuals with proven
expertise related to disability support services for postsec-
ondary students with disabilities to evaluate, improve, and
disseminate information related to the delivery of high
quality disability support services at institutions of higher
education.
(E) REVIEW AND REPORT.—Not later than three years
after the establishment of the National Center, and every
two years thereafter, the National Center shall prepare
and disseminate a report to the Secretary and the author-
izing committees analyzing the condition of postsecondary
success for students with disabilities. Such report shall in-
clude—
(i) a review of the activities and the effectiveness of
the programs authorized under this part;
(ii) annual enrollment and graduation rates of stu-
dents with disabilities in institutions of higher edu-
cation from publicly reported data;
(iii) recommendations for effective postsecondary
supports and services for students with disabilities,
and how such supports and services may be widely im-
plemented at institutions of higher education;
(iv) recommendations on reducing barriers to full
participation for students with disabilities in higher
education; and
(v) a description of strategies with a demonstrated
record of effectiveness in improving the success of such
students in postsecondary education.
(F) STAFFING OF THE CENTER.—In hiring employees of
the National Center, the National Center shall consider
the expertise and experience of prospective employees in
providing training and technical assistance to practi-
tioners.
(5) AUTHORIZATION OF APPROPRIATIONS.—There is authorized
to be appropriated to carry out this subsection $2,000,000 for
each of fiscal years 2023 through 2027.
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(b) COORDINATING CENTER.—
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(1) DEFINITION OF ELIGIBLE ENTITY.—In this subsection, the
term ‘‘eligible entity’’ means an entity, or a partnership of enti-
ties, that has demonstrated expertise in the fields of—
(A) higher education;
(B) the education of students with intellectual disabil-
ities;
(C) the development of comprehensive transition and
postsecondary programs for students with intellectual dis-
abilities; and
(D) evaluation and technical assistance.
(2) IN GENERAL.—From amounts appropriated under section
778, the Secretary shall enter into a cooperative agreement, on
a competitive basis, with an eligible entity for the purpose of
establishing a coordinating center for institutions of higher
education that offer inclusive comprehensive transition and
postsecondary programs for students with intellectual disabil-
ities, including institutions participating in grants authorized
under subpart 2, to provide—
(A) recommendations related to the development of
standards for such programs;
(B) technical assistance for such programs; and
(C) evaluations for such programs.
(3) ADMINISTRATION.—The program under this subsection
shall be administered by the office in the Department that ad-
ministers other postsecondary education programs.
(4) DURATION.—The Secretary shall enter into a cooperative
agreement under this subsection for a period of five years.
(5) REQUIREMENTS OF COOPERATIVE AGREEMENT.—The eligi-
ble entity entering into a cooperative agreement under this
subsection shall establish and maintain a coordinating center
that shall—
(A) serve as the technical assistance entity for all com-
prehensive transition and postsecondary programs for stu-
dents with intellectual disabilities;
(B) provide technical assistance regarding the develop-
ment, evaluation, and continuous improvement of such
programs;
(C) develop an evaluation protocol for such programs
that includes qualitative and quantitative methodologies
for measuring student outcomes and program strengths in
the areas of academic enrichment, socialization, inde-
pendent living, and competitive or supported employment;
(D) assist recipients of grants under subpart 2 in efforts
to award a meaningful credential to students with intellec-
tual disabilities upon the completion of such programs,
which credential shall take into consideration unique State
factors;
(E) develop recommendations for the necessary compo-
nents of such programs, such as—
(i) academic, vocational, social, and independent liv-
ing skills;
(ii) evaluation of student progress;
(iii) program administration and evaluation;
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(iv) student eligibility; and
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(v) issues regarding the equivalency of a student‘s
participation in such programs to semester, trimester,
quarter, credit, or clock hours at an institution of
higher education, as the case may be;
(F) analyze possible funding streams for such programs
and provide recommendations regarding the funding
streams;
(G) develop model memoranda of agreement for use be-
tween or among institutions of higher education and State
and local agencies providing funding for such programs;
(H) develop mechanisms for regular communication, out-
reach and dissemination of information about comprehen-
sive transition and postsecondary programs for students
with intellectual disabilities under subpart 2 between or
among such programs and to families and prospective stu-
dents;
(I) host a meeting of all recipients of grants under sub-
part 2 not less often than once each year; and
(J) convene a workgroup to develop and recommend
model criteria, standards, and components of such pro-
grams as described in subparagraph (E), that are appro-
priate for the development of accreditation standards,
which workgroup shall include—
(i) an expert in higher education;
(ii) an expert in special education;
(iii) a disability organization that represents stu-
dents with intellectual disabilities;
(iv) a representative from the National Advisory
Committee on Institutional Quality and Integrity; and
(v) a representative of a regional or national accredi-
tation agency or association.
(6) REPORT.—Not later than five years after the date of the
establishment of the coordinating center under this subsection,
the coordinating center shall report to the Secretary, the au-
thorizing committees, and the National Advisory Committee on
Institutional Quality and Integrity on the recommendations of
the workgroup described in paragraph (5)(J).
* * * * * * *
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974
* * * * * * *
TITLE I—PROTECTION OF EMPLOYEE BENEFIT RIGHTS
* * * * * * *
SUBTITLE B—REGULATORY PROVISIONS
* * * * * * *
PART 4—FIDUCIARY RESPONSIBILITY
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* * * * * * *
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ESTABLISHMENT OF PLAN
SEC. 402. (a)(1) Every employee benefit plan shall be established
and maintained pursuant to a written instrument. Such instru-
ment shall provide for one or more named fiduciaries who jointly
or severally shall have authority to control and manage the oper-
ation and administration of the plan.
(2) For purposes of this title, the term ‘‘named fiduciary’’ means
a fiduciary who is named in the plan instrument, or who, pursuant
to a procedure specified in the plan, is identified as a fiduciary (A)
by a person who is an employer or employee organization with re-
spect to the plan or (B) by such an employer and such an employee
organization acting jointly.
(b) Every employee benefit plan shall—
(1) provide a procedure for establishing and carrying out a
funding policy and method consistent with the objectives of the
plan and the requirements of this title,
(2) describe any procedure under the plan for the allocation
of responsibilities for the operation and administration of the
plan (including any procedure described in section 405(c)(1)),
(3) provide a procedure for amending such plan, and for iden-
tifying the persons who have authority to amend the plan, and
(4) specify the basis on which payments are made to and
from the plan.
(c) Any employee benefit plan may provide—
(1) that any person or group of persons may serve in more
than one fiduciary capacity with respect to the plan (including
service both as trustee and administrator);
(2) that a named fiduciary, or a fiduciary designated by a
named fiduciary pursuant to a plan procedure described in sec-
tion 405(c)(1), may employ one or more persons to render ad-
vice with regard to any responsibility such fiduciary has under
the plan; or
(3) that a person who is a named fiduciary with respect to
control or management of the assets of the plan may appoint
an investment manager or managers to manage (including the
power to acquire and dispose of) any assets of a plan.
(d)(1) No covered person may—
(A) require participants or beneficiaries to agree to a
predispute arbitration provision as a condition for participation
in, or receipt of benefits under, a plan;
(B) agree to a postdispute arbitration provision with a partic-
ipant or beneficiary with respect to a plan or plan benefit unless
the conditions of clauses (i) through (iv) of section 502(n)(1)(B)
are satisfied with respect to such provision; or
(C) agree to any other covered provision with respect to a plan
or plan benefit under any circumstances under which such pro-
vision would not be valid and enforceable under subparagraphs
(C) through (E) section 502(n)(1).
(2) In this subsection—
(A) the term ‘‘covered person’’ means—
(i) a plan;
(ii) a plan sponsor;
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(iii) an employer; or
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93
(iv) a person engaged by a plan for purposes of admin-
istering or operating the plan; and
(B) the terms ‘‘covered provision’’, ‘‘predispute arbitration pro-
vision’’ and ‘‘postdispute arbitration provision’’ have the mean-
ings given such terms in section 502(n)(2).
* * * * * * *
PART 5—ADMINISTRATION AND ENFORCEMENT
* * * * * * *
CIVIL ENFORCEMENT
SEC. 502. (a) A civil action may be brought—
(1) by a participant or beneficiary—
(A) for the relief provided for in subsection (c) of this sec-
tion, or
(B) to recover benefits due to him under the terms of his
plan, to enforce his rights under the terms of the plan, or
to clarify his rights to future benefits under the terms of
the plan;
(2) by the Secretary, or by a participant, beneficiary or fidu-
ciary for appropriate relief under section 409;
(3) by a participant, beneficiary, or fiduciary (A) to enjoin
any act or practice which violates any provision of this title or
the terms of the plan, øor (B)¿ (B) to obtain other appropriate
equitable relief (i) to redress such violations or (ii) to enforce
any provisions of this title or the terms of the plan, or (C) to
require re-adjudication and payment of benefits to remedy vio-
lations of this title notwithstanding the availability of relief
under other provisions of this title;
(4) by the Secretary, or by a participant, or beneficiary for
appropriate relief in the case of a violation of 105(c);
(5) except as otherwise provided in subsection (b), by the Sec-
retary (A) to enjoin any act or practice which violates any pro-
vision of this title, øor (B)¿ (B) to obtain other appropriate eq-
uitable relief (i) to redress such violation or (ii) to enforce any
provision of this title, or (C) to require re-adjudication and pay-
ment of benefits to remedy violations of this title notwith-
standing the availability of relief under other provisions of this
title;
(6) by the Secretary to collect any civil penalty under para-
graph (2), (4), (5), (6), (7), (8), or (9) of subsection (c) or under
subsection (i) or (l);
(7) by a State to enforce compliance with a qualified medical
child support order (as defined in section 609(a)(2)(A));
(8) by the Secretary, or by an employer or other person re-
ferred to in section 101(f)(1), (A) to enjoin any act or practice
which violates subsection (f) of section 101, or (B) to obtain ap-
propriate equitable relief (i) to redress such violation or (ii) to
enforce such subsection;
(9) in the event that the purchase of an insurance contract
or insurance annuity in connection with termination of an
individual‘s status as a participant covered under a pension
plan with respect to all or any portion of the participant‘s pen-
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sion benefit under such plan constitutes a violation of part 4
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94
of this title or the terms of the plan, by the Secretary, by any
individual who was a participant or beneficiary at the time of
the alleged violation, or by a fiduciary, to obtain appropriate
relief, including the posting of security if necessary, to assure
receipt by the participant or beneficiary of the amounts pro-
vided or to be provided by such insurance contract or annuity,
plus reasonable prejudgment interest on such amounts;
(10) in the case of a multiemployer plan that has been cer-
tified by the actuary to be in endangered or critical status
under section 305, if the plan sponsor—
(A) has not adopted a funding improvement or rehabili-
tation plan under that section by the deadline established
in such section, or
(B) fails to update or comply with the terms of the fund-
ing improvement or rehabilitation plan in accordance with
the requirements of such section,
by an employer that has an obligation to contribute with re-
spect to the multiemployer plan or an employee organization
that represents active participants in the multiemployer plan,
for an order compelling the plan sponsor to adopt a funding
improvement or rehabilitation plan or to update or comply
with the terms of the funding improvement or rehabilitation
plan in accordance with the requirements of such section and
the funding improvement or rehabilitation plan; øor¿
(11) in the case of a multiemployer plan, by an employee rep-
resentative, or any employer that has an obligation to con-
tribute to the plan, (A) to enjoin any act or practice which vio-
lates subsection (k) of section 101 (or, in the case of an em-
ployer, subsection (l) of such section), or (B) to obtain appro-
priate equitable relief (i) to redress such violation or (ii) to en-
force such subsectionø.¿; or
(12) in any case relating to the provision of mental health
benefits and substance use disorder benefits under a group
health plan or under group health insurance coverage offered
by a health insurance issuer in connection with a group health
plan (as such terms are defined in section 733), by the Sec-
retary, or by a participant, beneficiary, or fiduciary, to enforce
any provision of this title or the terms of the plan or coverage
relating to such benefits against a group health plan, a health
insurance issuer, a fiduciary of a plan, or any other person that
contracts with a group health plan to provide group health in-
surance coverage or assistance in the administration of a group
health plan (including a third party administrator, managed
behavioral health organization, and a pharmacy benefit man-
ager), if such person participates in or conceals a violation of
any requirement of part 7 relating to such benefits or a wrong-
ful denial of a claim for mental health benefits or substance use
disorder benefits under the terms of the plan or coverage, to ob-
tain appropriate relief, in addition to any other relief otherwise
available under this section, including—
(A) to recover all losses to participants and beneficiaries;
(B) to reform impermissible plan or coverage terms and
policies (as written or in operation) in accordance with the
requirements of this title and its implementing regulations;
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or
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95
(C) to ensure the readjudication of claims and payment
of benefits in accordance with the plan or coverage terms
without any impermissible limitation, plan or coverage
term, or policy.
(b)(1) In the case of a plan which is qualified under section
401(a), 403(a), or 405(a) of the Internal Revenue Code of 1986 (or
with respect to which an application to so qualify has been filed
and has not been finally determined) the Secretary may exercise
his authority under subsection (a)(5) with respect to a violation of,
or the enforcement of, parts 2 and 3 of this subtitle (relating to par-
ticipation, vesting, and funding), only if—
(A) requested by the Secretary of the Treasury, or
(B) one or more participants, beneficiaries, or fiduciaries, of
such plan request in writing (in such manner as the Secretary
shall prescribe by regulation) that he exercise such authority
on their behalf. In the case of such a request under this para-
graph he may exercise such authority only if he determines
that such violation affects, or such enforcement is necessary to
protect, claims of participants or beneficiaries to benefits under
the plan.
(2) The Secretary shall not initiate an action to enforce section
515.
(3) Except as provided in subsections (c)(9) and (a)(6) (with re-
spect to collecting civil penalties under subsection (c)(9)), and ex-
cept with respect to enforcement by the Secretary of section 712 or
any other provision of part 7 in any case relating to mental health
benefits and substance use disorder benefits, the Secretary is not
authorized to enforce under this part any requirement of part 7
against a health insurance issuer offering health insurance cov-
erage in connection with a group health plan (as defined in section
ø706(a)(1)¿ 733(a)(1)). Nothing in this paragraph shall affect the
authority of the Secretary to issue regulations to carry out such
part.
(c)(1) Any administrator (A) who fails to meet the requirements
of paragraph (1) or (4) of section 606, section 101(e)(1), section
101(f), or section 105(a) with respect to a participant or beneficiary,
or (B) who fails or refuses to comply with a request for any infor-
mation which such administrator is required by this title to furnish
to a participant or beneficiary (unless such failure or refusal re-
sults from matters reasonably beyond the control of the adminis-
trator) by mailing the material requested to the last known address
of the requesting participant or beneficiary within 30 days after
such request may in the court‘s discretion be personally liable to
such participant or beneficiary in the amount of up to $100 a day
from the date of such failure or refusal, and the court may in its
discretion order such other relief as it deems proper. For purposes
of this paragraph, each violation described in subparagraph (A)
with respect to any single participant, and each violation described
in subparagraph (B) with respect to any single participant or bene-
ficiary, shall be treated as a separate violation.
(2) The Secretary may assess a civil penalty against any plan ad-
ministrator of up to $1,000 a day from the date of such plan
administrator‘s failure or refusal to file the annual report required
to be filed with the Secretary under section 101(b)(1). For purposes
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of this paragraph, an annual report that has been rejected under
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96
section 104(a)(4) for failure to provide material information shall
not be treated as having been filed with the Secretary.
(3) Any employer maintaining a plan who fails to meet the notice
requirement of section 101(d) with respect to any participant or
beneficiary or who fails to meet the requirements of section
101(e)(2) with respect to any person or who fails to meet the re-
quirements of section 302(d)(12)(E) with respect to any person may
in the court‘s discretion be liable to such participant or beneficiary
or to such person in the amount of up to $100 a day from the date
of such failure, and the court may in its discretion order such other
relief as it deems proper.
(4) The Secretary may assess a civil penalty of not more than
$1,000 a day for each violation by any person of subsection (j), (k),
or (l) of section 101 or section 514(e)(3).
(5) The Secretary may assess a civil penalty against any person
of up to $1,000 a day from the date of the person‘s failure or re-
fusal to file the information required to be filed by such person
with the Secretary under regulations prescribed pursuant to sec-
tion 101(g).
(6) If, within 30 days of a request by the Secretary to a plan ad-
ministrator for documents under section 104(a)(6), the plan admin-
istrator fails to furnish the material requested to the Secretary, the
Secretary may assess a civil penalty against the plan administrator
of up to $100 a day from the date of such failure (but in no event
in excess of $1,000 per request). No penalty shall be imposed under
this paragraph for any failure resulting from matters reasonably
beyond the control of the plan administrator.
(7) The Secretary may assess a civil penalty against a plan ad-
ministrator of up to $100 a day from the date of the plan
administrator‘s failure or refusal to provide notice to participants
and beneficiaries in accordance with subsection (i) or (m) of section
101. For purposes of this paragraph, each violation with respect to
any single participant or beneficiary shall be treated as a separate
violation.
(8) The Secretary may assess against any plan sponsor of a
multiemployer plan a civil penalty of not more than $1,100 per
day—
(A) for each violation by such sponsor of the requirement
under section 305 to adopt by the deadline established in
that section a funding improvement plan or rehabilitation
plan with respect to a multiemployer plan which is in en-
dangered or critical status, or
(B) in the case of a plan in endangered status which is
not in seriously endangered status, for failure by the plan
to meet the applicable benchmarks under section 305 by
the end of the funding improvement period with respect to
the plan.
(9)(A) The Secretary may assess a civil penalty against any em-
ployer of up to $100 a day from the date of the employer‘s failure
to meet the notice requirement of section 701(f)(3)(B)(i)(I). For pur-
poses of this subparagraph, each violation with respect to any sin-
gle employee shall be treated as a separate violation.
(B) The Secretary may assess a civil penalty against any plan ad-
ministrator of up to $100 a day from the date of the plan
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administrator‘s failure to timely provide to any State the informa-
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97
tion required to be disclosed under section 701(f)(3)(B)(ii). For pur-
poses of this subparagraph, each violation with respect to any sin-
gle participant or beneficiary shall be treated as a separate viola-
tion.
(10) SECRETARIAL ENFORCEMENT AUTHORITY RELATING TO
USE OF GENETIC INFORMATION.—
(A) GENERAL RULE.—The Secretary may impose a pen-
alty against any plan sponsor of a group health plan, or
any health insurance issuer offering health insurance cov-
erage in connection with the plan, for any failure by such
sponsor or issuer to meet the requirements of subsection
(a)(1)(F), (b)(3), (c), or (d) of section 702 or section 701 or
702(b)(1) with respect to genetic information, in connection
with the plan.
(B) AMOUNT.—
(i) IN GENERAL.—The amount of the penalty imposed
by subparagraph (A) shall be $100 for each day in the
noncompliance period with respect to each participant
or beneficiary to whom such failure relates.
(ii) NONCOMPLIANCE PERIOD.—For purposes of this
paragraph, the term ‘‘noncompliance period’’ means,
with respect to any failure, the period—
(I) beginning on the date such failure first oc-
curs; and
(II) ending on the date the failure is corrected.
(C) MINIMUM PENALTIES WHERE FAILURE DISCOVERED.—
Notwithstanding clauses (i) and (ii) of subparagraph (D):
(i) IN GENERAL.—In the case of 1 or more failures
with respect to a participant or beneficiary—
(I) which are not corrected before the date on
which the plan receives a notice from the Sec-
retary of such violation; and
(II) which occurred or continued during the pe-
riod involved;
the amount of penalty imposed by subparagraph (A)
by reason of such failures with respect to such partici-
pant or beneficiary shall not be less than $2,500.
(ii) HIGHER MINIMUM PENALTY WHERE VIOLATIONS
ARE MORE THAN DE MINIMIS.—To the extent violations
for which any person is liable under this paragraph for
any year are more than de minimis, clause (i) shall be
applied by substituting ‘‘$15,000’’ for ‘‘$2,500’’ with re-
spect to such person.
(D) LIMITATIONS.—
(i) PENALTY NOT TO APPLY WHERE FAILURE NOT DIS-
COVERED EXERCISING REASONABLE DILIGENCE.—No
penalty shall be imposed by subparagraph (A) on any
failure during any period for which it is established to
the satisfaction of the Secretary that the person other-
wise liable for such penalty did not know, and exer-
cising reasonable diligence would not have known,
that such failure existed.
(ii) PENALTY NOT TO APPLY TO FAILURES CORRECTED
WITHIN CERTAIN PERIODS.—No penalty shall be im-
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posed by subparagraph (A) on any failure if—
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98
(I) such failure was due to reasonable cause and
not to willful neglect; and
(II) such failure is corrected during the 30-day
period beginning on the first date the person oth-
erwise liable for such penalty knew, or exercising
reasonable diligence would have known, that such
failure existed.
(iii) OVERALL LIMITATION FOR UNINTENTIONAL FAIL-
URES.—In the case of failures which are due to reason-
able cause and not to willful neglect, the penalty im-
posed by subparagraph (A) for failures shall not ex-
ceed the amount equal to the lesser of—
(I) 10 percent of the aggregate amount paid or
incurred by the plan sponsor (or predecessor plan
sponsor) during the preceding taxable year for
group health plans; or
(II) $500,000.
(E) WAIVER BY SECRETARY.—In the case of a failure
which is due to reasonable cause and not to willful neglect,
the Secretary may waive part or all of the penalty imposed
by subparagraph (A) to the extent that the payment of
such penalty would be excessive relative to the failure in-
volved.
(F) DEFINITIONS.—Terms used in this paragraph which
are defined in section 733 shall have the meanings pro-
vided such terms in such section.
(11) The Secretary and the Secretary of Health and Human Serv-
ices shall maintain such ongoing consultation as may be necessary
and appropriate to coordinate enforcement under this subsection
with enforcement under section 1144(c)(8) of the Social Security
Act.
(12) The Secretary may assess a civil penalty against any
sponsor of a CSEC plan of up to $100 a day from the date of
the plan sponsor‘s failure to comply with the requirements of
section 306(j)(3) to establish or update a funding restoration
plan.
(d)(1) An employee benefit plan may sue or be sued under this
title as an entity. Service of summons, subpena, or other legal proc-
ess of a court upon a trustee or an administrator of an employee
benefit plan in his capacity as such shall constitute service upon
the employee benefit plan. In a case where a plan has not des-
ignated in the summary plan description of the plan an individual
as agent for the service of legal process, service upon the Secretary
shall constitute such service. The Secretary, not later than 15 days
after receipt of service under the preceding sentence, shall notify
the administrator or any trustee of the plan of receipt of such serv-
ice.
(2) Any money judgment under this title against an employee
benefit plan shall be enforceable only against the plan as an entity
and shall not be enforceable against any other person unless liabil-
ity against such person is established in his individual capacity
under this title.
(e)(1) Except for actions under subsection (a)(1)(B) of this section,
the district courts of the United States shall have exclusive juris-
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diction of civil actions under this title brought by the Secretary or
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by a participant, beneficiary, fiduciary, or any person referred to in
section 101(f)(1). State courts of competent jurisdiction and district
courts of the United States shall have concurrent jurisdiction of ac-
tions under paragraphs (1)(B) and (7) of subsection (a) of this sec-
tion.
(2) Where an action under this title is brought in a district court
of the United States, it may be brought in the district where the
plan is administered, where the breach took place, or where a de-
fendant resides or may be found, and process may be served in any
other district where a defendant resides or may be found.
(f) The district courts of the United States shall have jurisdiction,
without respect to the amount in controversy or the citizenship of
the parties, to grant the relief provided for in subsection (a) of this
section in any action.
(g)(1) In any action under this title (other than an action de-
scribed in paragraph (2)) by a participant, beneficiary, or fiduciary,
the court in its discretion may allow a reasonable attorney‘s fee
and costs of action to either party.
(2) In any action under this title by a fiduciary for or on behalf
of a plan to enforce section 515 in which a judgment in favor of the
plan is awarded, the court shall award the plan—
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of—
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an
amount not in excess of 20 percent (or such higher per-
centage as may be permitted under Federal or State law)
of the amount determined by the court under subpara-
graph (A),
(D) reasonable attorney‘s fees and costs of the action, to be
paid by the defendant, and
(E) such other legal or equitable relief as the court deems ap-
propriate.
For purposes of this paragraph, interest on unpaid contributions
shall be determined by using the rate provided under the plan, or,
if none, the rate prescribed under section 6621 of the Internal Rev-
enue Code of 1986.
(h) A copy of the complaint in any action under this title by a
participant, beneficiary, or fiduciary (other than an action brought
by one or more participants or beneficiaries under subsection
(a)(1)(B) which is solely for the purpose of recovering benefits due
such participants under the terms of the plan) shall be served upon
the Secretary and the Secretary of the Treasury by certified mail.
Either Secretary shall have the right in his discretion to intervene
in any action, except that the Secretary of the Treasury may not
intervene in any action under part 4 of this subtitle. If the Sec-
retary brings an action under subsection (a) on behalf of a partici-
pant or beneficiary, he shall notify the Secretary of the Treasury.
(i) In the case of a transaction prohibited by section 406 by a
party in interest with respect to a plan to which this part applies,
the Secretary may assess a civil penalty against such party in in-
terest. The amount of such penalty may not exceed 5 percent of the
amount involved in each such transaction (as defined in section
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4975(f)(4) of the Internal Revenue Code of 1986) for each year or
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100
part thereof during which the prohibited transaction continues, ex-
cept that, if the transaction is not corrected (in such manner as the
Secretary shall prescribe in regulations which shall be consistent
with section 4975(f)(5) of such Code) within 90 days after notice
from the Secretary (or such longer period as the Secretary may per-
mit), such penalty may be in an amount not more than 100 percent
of the amount involved. This subsection shall not apply to a trans-
action with respect to a plan described in section 4975(e)(1) of such
Code.
(j) In all civil actions under this title, attorneys appointed by the
Secretary may represent the Secretary (except as provided in sec-
tion 518(a) of title 28, United States Code), but all such litigation
shall be subject to the direction and control of the Attorney Gen-
eral.
(k) Suits by an administrator, fiduciary, participant, or bene-
ficiary of an employee benefit plan to review a final order of the
Secretary, to restrain the Secretary from taking any action con-
trary to the provisions of this Act, or to compel him to take action
required under this title, may be brought in the district court of the
United States for the district where the plan has its principal of-
fice, or in the United States District Court for the District of Co-
lumbia.
(l)(1) In the case of—
(A) any breach of fiduciary responsibility under (or other vio-
lation of) part 4 by a fiduciary, or
(B) any knowing participation in such a breach or violation
by any other person,
the Secretary shall assess a civil penalty against such fiduciary or
other person in an amount equal to 20 percent of the applicable re-
covery amount.
(2) For purposes of paragraph (1), the term ‘‘applicable recovery
amount’’ means any amount which is recovered from a fiduciary or
other person with respect to a breach or violation described in
paragraph (1)—
(A) pursuant to any settlement agreement with the Sec-
retary, or
(B) ordered by a court to be paid by such fiduciary or other
person to a plan or its participants and beneficiaries in a judi-
cial proceeding instituted by the Secretary under subsection
(a)(2) or (a)(5).
(3) The Secretary may, in the Secretary‘s sole discretion, waive
or reduce the penalty under paragraph (1) if the Secretary deter-
mines in writing that—
(A) the fiduciary or other person acted reasonably and in
good faith, or
(B) it is reasonable to expect that the fiduciary or other per-
son will not be able to restore all losses to the plan (or to pro-
vide the relief ordered pursuant to subsection (a)(9)) without
severe financial hardship unless such waiver or reduction is
granted.
(4) The penalty imposed on a fiduciary or other person under this
subsection with respect to any transaction shall be reduced by the
amount of any penalty or tax imposed on such fiduciary or other
person with respect to such transaction under subsection (i) of this
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section and section 4975 of the Internal Revenue Code of 1986.
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(m) In the case of a distribution to a pension plan participant or
beneficiary in violation of section 206(e) by a plan fiduciary, the
Secretary shall assess a penalty against such fiduciary in an
amount equal to the value of the distribution. Such penalty shall
not exceed $10,000 for each such distribution.
(n)(1) In any civil action brought by, or on behalf of, a participant
or beneficiary pursuant to this section or with respect to a common
law claim involving a plan or plan benefit, notwithstanding any
other provision of law—
(A) no predispute arbitration provision shall be valid or en-
forceable if it requires arbitration of a matter related to a claim
brought under this section;
(B) no postdispute arbitration provision shall be valid or en-
forceable unless—
(i) the provision was not required by any person, obtained
by coercion or threat of adverse action, or made a condition
of participating in a plan, receiving benefits under a plan,
or receiving any other employment, work, or any employ-
ment-related or work-related privilege or benefit;
(ii) each participant or beneficiary agreeing to the provi-
sion was informed, through a paper notice, in a manner
reasonably calculated to be understood by the average plan
participant, of the right of the participant or beneficiary
under subparagraph (C) to refuse to agree to the provision
without retaliation or threat of retaliation;
(iii) each participant or beneficiary agreeing to the provi-
sion so agreed after a waiting period of not fewer than 45
days, beginning on the date on which the participant or
beneficiary was provided both the final text of the provision
and the disclosures required under clause (ii); and
(iv) each participant or beneficiary agreeing to the provi-
sion affirmatively consented to the provision in writing;
(C) no covered provision shall be valid or enforceable, if prior
to a dispute to which the covered provision applies, a partici-
pant or beneficiary undertakes or promises not to pursue, bring,
join, litigate, or support any kind of individual, joint, class, rep-
resentative, or collective claim available under this section in
any forum that, but for such covered provision, is of competent
jurisdiction;
(D) no covered provision shall be valid or enforceable, if after
a dispute to which the covered provision applies arises, a par-
ticipant or beneficiary undertakes or promises not to pursue,
bring, join, litigate, or support any kind of individual, joint,
class, representative, or collective claim under this section in
any forum that, but for such covered provision, is of competent
jurisdiction, unless the covered provision meets the require-
ments of subparagraph (B); and
(E) no covered provision related to a plan other than a multi-
employer plan shall be valid or enforceable that purports to
confer discretionary authority to any person with respect to ben-
efit determinations or interpretation of plan language, or to pro-
vide a standard of review of such determinations or interpreta-
tion by a reviewing court in an action brought under this sec-
tion that would require anything other than de novo review of
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such determinations or interpretation.
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(2) In this subsection—
(A) the term ‘‘covered provision’’ means any document, instru-
ment, or agreement related to a plan or plan benefit, regardless
of whether such provision appears in a plan document or in a
separate agreement;
(B) the term ‘‘predispute arbitration provision’’ means a cov-
ered provision that requires a participant or beneficiary to arbi-
trate a dispute related to the plan or an amendment to the plan
that had not yet arisen at the time such provision took effect;
(C) the term ‘‘postdispute arbitration provision’’ means a cov-
ered provision that requires a participant or beneficiary to arbi-
trate a dispute related to the plan or an amendment to the plan
that arose before the time such provision took effect; and
(D) the term ‘‘retaliation’’ means any action in violation of
section 510.
(3)(A) Any dispute as to whether a covered provision that requires
a participant or beneficiary to arbitrate a dispute related to a plan
is valid and enforceable shall be determined by a court, rather than
an arbitrator, regardless of whether any contractual provision pur-
ports to delegate such determinations to the arbitrator and irrespec-
tive of whether the party resisting arbitration challenges the arbitra-
tion agreement specifically or in conjunction with other terms of the
contract containing such agreement.
(B) For purposes of this subsection, a dispute shall be considered
to arise only when a plaintiff has actual knowledge (within the
meaning of such term in section 413) of a breach or violation giving
rise to a claim under this section.
* * * * * * *
PART 7—GROUP HEALTH PLAN REQUIREMENTS
* * * * * * *
SUBPART B—OTHER REQUIREMENTS
* * * * * * *
SEC. 712. PARITY IN MENTAL HEALTH AND SUBSTANCE USE DIS-
ORDER BENEFITS.
(a) IN GENERAL.—
(1) AGGREGATE LIFETIME LIMITS.—In the case of a group
health plan (or health insurance coverage offered in connection
with such a plan) that provides both medical and surgical ben-
efits and mental health or substance use disorder benefits—
(A) NO LIFETIME LIMIT.—If the plan or coverage does not
include an aggregate lifetime limit on substantially all
medical and surgical benefits, the plan or coverage may
not impose any aggregate lifetime limit on mental health
or substance use disorder benefits.
(B) LIFETIME LIMIT.—If the plan or coverage includes an
aggregate lifetime limit on substantially all medical and
surgical benefits (in this paragraph referred to as the ‘‘ap-
plicable lifetime limit’’), the plan or coverage shall either—
(i) apply the applicable lifetime limit both to the
medical and surgical benefits to which it otherwise
would apply and to mental health and substance use
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tion of such limit between such medical and surgical
benefits and mental health and substance use disorder
benefits; or
(ii) not include any aggregate lifetime limit on men-
tal health or substance use disorder benefits that is
less than the applicable lifetime limit.
(C) RULE IN CASE OF DIFFERENT LIMITS.—In the case of
a plan or coverage that is not described in subparagraph
(A) or (B) and that includes no or different aggregate life-
time limits on different categories of medical and surgical
benefits, the Secretary shall establish rules under which
subparagraph (B) is applied to such plan or coverage with
respect to mental health and substance use disorder bene-
fits by substituting for the applicable lifetime limit an av-
erage aggregate lifetime limit that is computed taking into
account the weighted average of the aggregate lifetime
limits applicable to such categories.
(2) ANNUAL LIMITS.—In the case of a group health plan (or
health insurance coverage offered in connection with such a
plan) that provides both medical and surgical benefits and
mental health or substance use disorder benefits—
(A) NO ANNUAL LIMIT.—If the plan or coverage does not
include an annual limit on substantially all medical and
surgical benefits, the plan or coverage may not impose any
annual limit on mental health or substance use disorder
benefits.
(B) ANNUAL LIMIT.—If the plan or coverage includes an
annual limit on substantially all medical and surgical ben-
efits (in this paragraph referred to as the ‘‘applicable an-
nual limit’’), the plan or coverage shall either—
(i) apply the applicable annual limit both to medical
and surgical benefits to which it otherwise would
apply and to mental health and substance use disorder
benefits and not distinguish in the application of such
limit between such medical and surgical benefits and
mental health and substance use disorder benefits; or
(ii) not include any annual limit on mental health or
substance use disorder benefits that is less than the
applicable annual limit.
(C) RULE IN CASE OF DIFFERENT LIMITS.—In the case of
a plan or coverage that is not described in subparagraph
(A) or (B) and that includes no or different annual limits
on different categories of medical and surgical benefits, the
Secretary shall establish rules under which subparagraph
(B) is applied to such plan or coverage with respect to
mental health and substance use disorder benefits by sub-
stituting for the applicable annual limit an average annual
limit that is computed taking into account the weighted
average of the annual limits applicable to such categories.
(3) FINANCIAL REQUIREMENTS AND TREATMENT LIMITA-
TIONS.—
(A) IN GENERAL.—In the case of a group health plan (or
health insurance coverage offered in connection with such
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a plan) that provides both medical and surgical benefits
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and mental health or substance use disorder benefits, such
plan or coverage shall ensure that—
(i) the financial requirements applicable to such
mental health or substance use disorder benefits are
no more restrictive than the predominant financial re-
quirements applied to substantially all medical and
surgical benefits covered by the plan (or coverage), and
there are no separate cost sharing requirements that
are applicable only with respect to mental health or
substance use disorder benefits; and
(ii) the treatment limitations applicable to such
mental health or substance use disorder benefits are
no more restrictive than the predominant treatment
limitations applied to substantially all medical and
surgical benefits covered by the plan (or coverage) and
there are no separate treatment limitations that are
applicable only with respect to mental health or sub-
stance use disorder benefits.
(B) DEFINITIONS.—In this paragraph:
(i) FINANCIAL REQUIREMENT.—The term ‘‘financial
requirement’’ includes deductibles, copayments, coin-
surance, and out-of-pocket expenses, but excludes an
aggregate lifetime limit and an annual limit subject to
paragraphs (1) and (2),
(ii) PREDOMINANT.—A financial requirement or
treatment limit is considered to be predominant if it
is the most common or frequent of such type of limit
or requirement.
(iii) TREATMENT LIMITATION.—The term ‘‘treatment
limitation’’ includes limits on the frequency of treat-
ment, number of visits, days of coverage, or other simi-
lar limits on the scope or duration of treatment.
(4) AVAILABILITY OF PLAN INFORMATION.—The criteria for
medical necessity determinations made under the plan with re-
spect to mental health or substance use disorder benefits (or
the health insurance coverage offered in connection with the
plan with respect to such benefits) shall be made available by
the plan administrator (or the health insurance issuer offering
such coverage) in accordance with regulations to any current or
potential participant, beneficiary, or contracting provider upon
request. The reason for any denial under the plan (or coverage)
of reimbursement or payment for services with respect to men-
tal health or substance use disorder benefits in the case of any
participant or beneficiary shall, on request or as otherwise re-
quired, be made available by the plan administrator (or the
health insurance issuer offering such coverage) to the partici-
pant or beneficiary in accordance with regulations.
(5) OUT-OF-NETWORK PROVIDERS.—In the case of a plan or
coverage that provides both medical and surgical benefits and
mental health or substance use disorder benefits, if the plan or
coverage provides coverage for medical or surgical benefits pro-
vided by out-of-network providers, the plan or coverage shall
provide coverage for mental health or substance use disorder
benefits provided by out-of-network providers in a manner that
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(6) COMPLIANCE PROGRAM GUIDANCE DOCUMENT.—
(A) IN GENERAL.—The Secretary, the Secretary of Health
and Human Services, and the Secretary of the Treasury,
in consultation with the Inspector General of the Depart-
ment of Health and Human Services, the Inspector Gen-
eral of the Department of Labor, and the Inspector Gen-
eral of the Department of the Treasury, shall issue a com-
pliance program guidance document to help improve com-
pliance with this section, section 2726 of the Public Health
Service Act, and section 9812 of the Internal Revenue Code
of 1986, as applicable. In carrying out this paragraph, the
Secretaries may take into consideration the 2016 publica-
tion of the Department of Health and Human Services and
the Department of Labor, entitled ‘‘Warning Signs - Plan
or Policy Non-Quantitative Treatment Limitations
(NQTLs) that Require Additional Analysis to Determine
Mental Health Parity Compliance’’.
(B) EXAMPLES ILLUSTRATING COMPLIANCE AND NON-
COMPLIANCE.—
(i) IN GENERAL.—The compliance program guidance
document required under this paragraph shall provide
illustrative, de-identified examples (that do not dis-
close any protected health information or individually
identifiable information) of previous findings of compli-
ance and noncompliance with this section, section
2726 of the Public Health Service Act, or section 9812
of the Internal Revenue Code of 1986, as applicable,
based on investigations of violations of such sections,
including—
(I) examples illustrating requirements for infor-
mation disclosures and nonquantitative treatment
limitations; and
(II) descriptions of the violations uncovered dur-
ing the course of such investigations.
(ii) NONQUANTITATIVE TREATMENT LIMITATIONS.—To
the extent that any example described in clause (i) in-
volves a finding of compliance or noncompliance with
regard to any requirement for nonquantitative treat-
ment limitations, the example shall provide sufficient
detail to fully explain such finding, including a full de-
scription of the criteria involved for approving medical
and surgical benefits and the criteria involved for ap-
proving mental health and substance use disorder ben-
efits.
(iii) ACCESS TO ADDITIONAL INFORMATION REGARDING
COMPLIANCE.—In developing and issuing the compli-
ance program guidance document required under this
paragraph, the Secretaries specified in subparagraph
(A)—
(I) shall enter into interagency agreements with
the Inspector General of the Department of
Health and Human Services, the Inspector Gen-
eral of the Department of Labor, and the Inspec-
tor General of the Department of the Treasury to
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with this section, section 2726 of the Public
Health Service Act, or section 9812 of the Internal
Revenue Code of 1986, as applicable; and
(II) shall seek to enter into an agreement with
a State to share information on findings of compli-
ance and noncompliance with this section, section
2726 of the Public Health Service Act, or section
9812 of the Internal Revenue Code of 1986, as ap-
plicable.
(C) RECOMMENDATIONS.—The compliance program guid-
ance document shall include recommendations to advance
compliance with this section, section 2726 of the Public
Health Service Act, or section 9812 of the Internal Rev-
enue Code of 1986, as applicable, and encourage the devel-
opment and use of internal controls to monitor adherence
to applicable statutes, regulations, and program require-
ments. Such internal controls may include illustrative ex-
amples of nonquantitative treatment limitations on mental
health and substance use disorder benefits, which may fail
to comply with this section, section 2726 of the Public
Health Service Act, or section 9812 of the Internal Rev-
enue Code of 1986, as applicable, in relation to non-
quantitative treatment limitations on medical and surgical
benefits.
(D) UPDATING THE COMPLIANCE PROGRAM GUIDANCE DOC-
UMENT.—The Secretary, the Secretary of Health and
Human Services, and the Secretary of the Treasury, in
consultation with the Inspector General of the Department
of Health and Human Services, the Inspector General of
the Department of Labor, and the Inspector General of the
Department of the Treasury, shall update the compliance
program guidance document every 2 years to include illus-
trative, de-identified examples (that do not disclose any
protected health information or individually identifiable in-
formation) of previous findings of compliance and non-
compliance with this section, section 2726 of the Public
Health Service Act, or section 9812 of the Internal Rev-
enue Code of 1986, as applicable.
(7) ADDITIONAL GUIDANCE.—
(A) IN GENERAL.—The Secretary, the Secretary of Health
and Human Services, and the Secretary of the Treasury
shall issue guidance to group health plans and health in-
surance issuers offering group health insurance coverage
to assist such plans and issuers in satisfying the require-
ments of this section, section 2726 of the Public Health
Service Act, or section 9812 of the Internal Revenue Code
of 1986, as applicable.
(B) DISCLOSURE.—
(i) GUIDANCE FOR PLANS AND ISSUERS.—The guid-
ance issued under this paragraph shall include clari-
fying information and illustrative examples of methods
that group health plans and health insurance issuers
offering group or individual health insurance coverage
may use for disclosing information to ensure compli-
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ance with the requirements under this section, section
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2726 of the Public Health Service Act, or section 9812
of the Internal Revenue Code of 1986, as applicable,
(and any regulations promulgated pursuant to such
sections, as applicable).
(ii) DOCUMENTS FOR PARTICIPANTS, BENEFICIARIES,
CONTRACTING PROVIDERS, OR AUTHORIZED REPRESENTA-
TIVES.—The guidance issued under this paragraph
shall include clarifying information and illustrative ex-
amples of methods that group health plans and health
insurance issuers offering group health insurance cov-
erage may use to provide any participant, beneficiary,
contracting provider, or authorized representative, as
applicable, with documents containing information
that the health plans or issuers are required to dis-
close to participants, beneficiaries, contracting pro-
viders, or authorized representatives to ensure compli-
ance with this section, section 2726 of the Public
Health Service Act, or section 9812 of the Internal
Revenue Code of 1986, as applicable, compliance with
any regulation issued pursuant to such respective sec-
tion, or compliance with any other applicable law or
regulation. Such guidance shall include information
that is comparative in nature with respect to—
(I) nonquantitative treatment limitations for
both medical and surgical benefits and mental
health and substance use disorder benefits;
(II) the processes, strategies, evidentiary stand-
ards, and other factors used to apply the limita-
tions described in subclause (I); and
(III) the application of the limitations described
in subclause (I) to ensure that such limitations are
applied in parity with respect to both medical and
surgical benefits and mental health and substance
use disorder benefits.
(C) NONQUANTITATIVE TREATMENT LIMITATIONS.—The
guidance issued under this paragraph shall include clari-
fying information and illustrative examples of methods,
processes, strategies, evidentiary standards, and other fac-
tors that group health plans and health insurance issuers
offering group health insurance coverage may use regard-
ing the development and application of nonquantitative
treatment limitations to ensure compliance with this sec-
tion, section 2726 of the Public Health Service Act, or sec-
tion 9812 of the Internal Revenue Code of 1986, as applica-
ble, (and any regulations promulgated pursuant to such re-
spective section), including—
(i) examples of methods of determining appropriate
types of nonquantitative treatment limitations with
respect to both medical and surgical benefits and men-
tal health and substance use disorder benefits, includ-
ing nonquantitative treatment limitations pertaining
to—
(I) medical management standards based on
medical necessity or appropriateness, or whether
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a treatment is experimental or investigative;
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(II) limitations with respect to prescription drug
formulary design; and
(III) use of fail-first or step therapy protocols;
(ii) examples of methods of determining—
(I) network admission standards (such as
credentialing); and
(II) factors used in provider reimbursement
methodologies (such as service type, geographic
market, demand for services, and provider supply,
practice size, training, experience, and licensure)
as such factors apply to network adequacy;
(iii) examples of sources of information that may
serve as evidentiary standards for the purposes of
making determinations regarding the development
and application of nonquantitative treatment limita-
tions;
(iv) examples of specific factors, and the evidentiary
standards used to evaluate such factors, used by such
plans or issuers in performing a nonquantitative treat-
ment limitation analysis;
(v) examples of how specific evidentiary standards
may be used to determine whether treatments are con-
sidered experimental or investigative;
(vi) examples of how specific evidentiary standards
may be applied to each service category or classifica-
tion of benefits;
(vii) examples of methods of reaching appropriate
coverage determinations for new mental health or sub-
stance use disorder treatments, such as evidence-
based early intervention programs for individuals with
a serious mental illness and types of medical manage-
ment techniques;
(viii) examples of methods of reaching appropriate
coverage determinations for which there is an indirect
relationship between the covered mental health or
substance use disorder benefit and a traditional cov-
ered medical and surgical benefit, such as residential
treatment or hospitalizations involving voluntary or
involuntary commitment; and
(ix) additional illustrative examples of methods,
processes, strategies, evidentiary standards, and other
factors for which the Secretary determines that addi-
tional guidance is necessary to improve compliance
with this section, section 2726 of the Public Health
Service Act, or section 9812 of the Internal Revenue
Code of 1986, as applicable.
(D) PUBLIC COMMENT.—Prior to issuing any final guid-
ance under this paragraph, the Secretary shall provide a
public comment period of not less than 60 days during
which any member of the public may provide comments on
a draft of the guidance.
(8) COMPLIANCE REQUIREMENTS.—
(A) NONQUANTITATIVE TREATMENT LIMITATION (NQTL) RE-
QUIREMENTS.—In the case of a group health plan or a
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coverage that provides both medical and surgical benefits
and mental health or substance use disorder benefits and
that imposes nonquantitative treatment limitations (re-
ferred to in this section as ‘‘NQTLs’’) on mental health or
substance use disorder benefits, such plan or issuer shall
perform and document comparative analyses of the design
and application of NQTLs and, beginning 45 days after the
date of enactment of the Consolidated Appropriations Act,
2021, make available to the Secretary, upon request, the
comparative analyses and the following information:
(i) The specific plan or coverage terms or other rel-
evant terms regarding the NQTLs, that applies to
such plan or coverage, and a description of all mental
health or substance use disorder and medical or sur-
gical benefits to which each such term applies in each
respective benefits classification.
(ii) The factors used to determine that the NQTLs
will apply to mental health or substance use disorder
benefits and medical or surgical benefits.
(iii) The evidentiary standards used for the factors
identified in clause (ii), when applicable, provided that
every factor shall be defined, and any other source or
evidence relied upon to design and apply the NQTLs
to mental health or substance use disorder benefits
and medical or surgical benefits.
(iv) The comparative analyses demonstrating that
the processes, strategies, evidentiary standards, and
other factors used to apply the NQTLs to mental
health or substance use disorder benefits, as written
and in operation, are comparable to, and are applied
no more stringently than, the processes, strategies,
evidentiary standards, and other factors used to apply
the NQTLs to medical or surgical benefits in the bene-
fits classification.
(v) The specific findings and conclusions reached by
the group health plan or health insurance issuer with
respect to the health insurance coverage, including
any results of the analyses described in this subpara-
graph that indicate that the plan or coverage is or is
not in compliance with this section.
(B) SECRETARY REQUEST PROCESS.—
(i) SUBMISSION UPON REQUEST.—The Secretary shall
request that a group health plan or a health insurance
issuer offering group health insurance coverage submit
the comparative analyses described in subparagraph
(A) for plans that involve potential violations of this
section or complaints regarding noncompliance with
this section that concern NQTLs and any other in-
stances in which the Secretary determines appro-
priate. The Secretary shall request not fewer than 20
such analyses per year.
(ii) ADDITIONAL INFORMATION.—In instances in
which the Secretary has concluded that the group
health plan or health insurance issuer with respect to
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sufficient information for the Secretary to review the
comparative analyses described in subparagraph (A),
as requested under clause (i), the Secretary shall
specify to the plan or issuer the information the plan
or issuer must submit to be responsive to the request
under clause (i) for the Secretary to review the com-
parative analyses described in subparagraph (A) for
compliance with this section. Nothing in this para-
graph shall require the Secretary to conclude that a
group health plan or health insurance issuer is in
compliance with this section solely based upon the in-
spection of the comparative analyses described in sub-
paragraph (A), as requested under clause (i).
(iii) REQUIRED ACTION.—
(I) IN GENERAL.—In instances in which the Sec-
retary has reviewed the comparative analyses de-
scribed in subparagraph (A), as requested under
clause (i), and determined that the group health
plan or health insurance issuer is not in compli-
ance with this section, the plan or issuer—
(aa) shall specify to the Secretary the ac-
tions the plan or issuer will take to be in com-
pliance with this section and provide to the
Secretary additional comparative analyses de-
scribed in subparagraph (A) that demonstrate
compliance with this section not later than 45
days after the initial determination by the
Secretary that the plan or issuer is not in
compliance; and
(bb) following the 45-day corrective action
period under item (aa), if the Secretary makes
a final determination that the plan or issuer
still is not in compliance with this section, not
later than 7 days after such determination,
shall notify all individuals enrolled in the
plan or applicable health insurance coverage
offered by the issuer that the plan or issuer,
with respect to such coverage, has been deter-
mined to be not in compliance with this sec-
tion.
(II) EXEMPTION FROM DISCLOSURE.—Documents
or communications produced in connection with
the Secretary‘s recommendations to a group
health plan or health insurance issuer shall not be
subject to disclosure pursuant to section 552 of
title 5, United States Code.
(iv) REPORT.—Not later than 1 year after the date of
enactment of this paragraph, and not later than Octo-
ber 1 of each year thereafter, the Secretary shall sub-
mit to Congress, and make publicly available, a report
that contains—
(I) a summary of the comparative analyses re-
quested under clause (i), including the identity of
each group health plan or health insurance issuer,
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111
that is determined to be not in compliance after
the final determination by the Secretary described
in clause (iii)(I)(bb);
(II) the Secretary‘s conclusions as to whether
each group health plan or health insurance issuer
submitted sufficient information for the Secretary
to review the comparative analyses requested
under clause (i) for compliance with this section;
(III) for each group health plan or health insur-
ance issuer that did submit sufficient information
for the Secretary to review the comparative anal-
yses requested under clause (i), the Secretary‘s
conclusions as to whether and why the plan or
issuer is in compliance with the disclosure re-
quirements under this section;
(IV) the Secretary‘s specifications described in
clause (ii) for each group health plan or health in-
surance issuer that the Secretary determined did
not submit sufficient information for the Secretary
to review the comparative analyses requested
under clause (i) for compliance with this section;
and
(V) the Secretary‘s specifications described in
clause (iii) of the actions each group health plan
or health insurance issuer that the Secretary de-
termined is not in compliance with this section
must take to be in compliance with this section,
including the reason why the Secretary deter-
mined the plan or issuer is not in compliance.
(C) COMPLIANCE PROGRAM GUIDANCE DOCUMENT UPDATE
PROCESS.—
(i) IN GENERAL.—The Secretary shall include in-
stances of noncompliance that the Secretary discovers
upon reviewing the comparative analyses requested
under subparagraph (B)(i) in the compliance program
guidance document described in paragraph (6), as it is
updated every 2 years, except that such instances
shall not disclose any protected health information or
individually identifiable information.
(ii) GUIDANCE AND REGULATIONS.—Not later than 18
months after the date of enactment of this paragraph,
the Secretary shall finalize any draft or interim guid-
ance and regulations relating to mental health parity
under this section. Such draft guidance shall include
guidance to clarify the process and timeline for current
and potential participants and beneficiaries (and au-
thorized representatives and health care providers of
such participants and beneficiaries) with respect to
plans to file complaints of such plans or issuers being
in violation of this section, including guidance, by plan
type, on the relevant State, regional, or national office
with which such complaints should be filed.
(iii) STATE.—The Secretary shall share information
on findings of compliance and noncompliance discov-
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112
quested under subparagraph (B)(i) shall be shared
with the State where the group health plan is located
or the State where the health insurance issuer is li-
censed to do business for coverage offered by a health
insurance issuer in the group market, in accordance
with paragraph (6)(B)(iii)(II).
(b) CONSTRUCTION.—Nothing in this section shall be
construed—
(1) as requiring a group health plan (or health insurance cov-
erage offered in connection with such a plan) to provide any
mental health or substance use disorder benefits; or
(2) in the case of a group health plan (or health insurance
coverage offered in connection with such a plan) that provides
mental health or substance use disorder benefits, as affecting
the terms and conditions of the plan or coverage relating to
such benefits under the plan or coverage, except as provided in
subsection (a).
(c) EXEMPTIONS.—
(1) SMALL EMPLOYER EXEMPTION.—
(A) IN GENERAL.—This section shall not apply to any
group health plan (and group health insurance coverage
offered in connection with a group health plan) for any
plan year of a small employer.
(B) SMALL EMPLOYER.—For purposes of subparagraph
(A), the term ‘‘small employer’’ means, in connection with
a group health plan with respect to a calendar year and
a plan year, an employer who employed an average of at
least 2 (or 1 in the case of an employer residing in a State
that permits small groups to include a single individual)
but not more than 50 employees on business days during
the preceding calendar year.
(C) APPLICATION OF CERTAIN RULES IN DETERMINATION
OF EMPLOYER SIZE.—For purposes of this paragraph—
(i) APPLICATION OF AGGREGATION RULE FOR EMPLOY-
ERS.—Rules similar to the rules under subsections (b),
(c), (m), and (o) of section 414 of the Internal Revenue
Code of 1986 shall apply for purposes of treating per-
sons as a single employer.
(ii) EMPLOYERS NOT IN EXISTENCE IN PRECEDING
YEAR.—In the case of an employer which was not in
existence throughout the preceding calendar year, the
determination of whether such employer is a small
employer shall be based on the average number of em-
ployees that it is reasonably expected such employer
will employ on business days in the current calendar
year.
(iii) PREDECESSORS.—Any reference in this para-
graph to an employer shall include a reference to any
predecessor of such employer.
(2) COST EXEMPTION.—
(A) IN GENERAL.—With respect to a group health plan
(or health insurance coverage offered in connection with
such a plan), if the application of this section to such plan
(or coverage) results in an increase for the plan year in-
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medical and surgical benefits and mental health and sub-
stance use disorder benefits under the plan (as determined
and certified under subparagraph (C)) by an amount that
exceeds the applicable percentage described in subpara-
graph (B) of the actual total plan costs, the provisions of
this section shall not apply to such plan (or coverage) dur-
ing the following plan year, and such exemption shall
apply to the plan (or coverage) for 1 plan year. An em-
ployer may elect to continue to apply mental health and
substance use disorder parity pursuant to this section with
respect to the group health plan (or coverage) involved re-
gardless of any increase in total costs.
(B) APPLICABLE PERCENTAGE.—With respect to a plan (or
coverage), the applicable percentage described in this sub-
paragraph shall be—
(i) 2 percent in the case of the first plan year in
which this section is applied; and
(ii) 1 percent in the case of each subsequent plan
year.
(C) DETERMINATIONS BY ACTUARIES.—Determinations as
to increases in actual costs under a plan (or coverage) for
purposes of this section shall be made and certified by a
qualified and licensed actuary who is a member in good
standing of the American Academy of Actuaries. All such
determinations shall be in a written report prepared by
the actuary. The report, and all underlying documentation
relied upon by the actuary, shall be maintained by the
group health plan or health insurance issuer for a period
of 6 years following the notification made under subpara-
graph (E).
(D) 6-MONTH DETERMINATIONS.—If a group health plan
(or a health insurance issuer offering coverage in connec-
tion with a group health plan) seeks an exemption under
this paragraph, determinations under subparagraph (A)
shall be made after such plan (or coverage) has complied
with this section for the first 6 months of the plan year in-
volved.
(E) NOTIFICATION.—
(i) IN GENERAL.—A group health plan (or a health
insurance issuer offering coverage in connection with
a group health plan) that, based upon a certification
described under subparagraph (C), qualifies for an ex-
emption under this paragraph, and elects to imple-
ment the exemption, shall promptly notify the Sec-
retary, the appropriate State agencies, and partici-
pants and beneficiaries in the plan of such election.
(ii) REQUIREMENT.—A notification to the Secretary
under clause (i) shall include—
(I) a description of the number of covered lives
under the plan (or coverage) involved at the time
of the notification, and as applicable, at the time
of any prior election of the cost-exemption under
this paragraph by such plan (or coverage);
(II) for both the plan year upon which a cost ex-
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tion of the actual total costs of coverage with re-
spect to medical and surgical benefits and mental
health and substance use disorder benefits under
the plan; and
(III) for both the plan year upon which a cost
exemption is sought and the year prior, the actual
total costs of coverage with respect to mental
health and substance use disorder benefits under
the plan.
(iii) CONFIDENTIALITY.—A notification to the Sec-
retary under clause (i) shall be confidential. The Sec-
retary shall make available, upon request and on not
more than an annual basis, an anonymous itemization
of such notifications, that includes—
(I) a breakdown of States by the size and type
of employers submitting such notification; and
(II) a summary of the data received under
clause (ii).
(F) AUDITS BY APPROPRIATE AGENCIES.—To determine
compliance with this paragraph, the Secretary may audit
the books and records of a group health plan or health in-
surance issuer relating to an exemption, including any ac-
tuarial reports prepared pursuant to subparagraph (C),
during the 6 year period following the notification of such
exemption under subparagraph (E). A State agency receiv-
ing a notification under subparagraph (E) may also con-
duct such an audit with respect to an exemption covered
by such notification.
(d) SEPARATE APPLICATION TO EACH OPTION OFFERED.—In the
case of a group health plan that offers a participant or beneficiary
two or more benefit package options under the plan, the require-
ments of this section shall be applied separately with respect to
each such option.
(e) DEFINITIONS.—For purposes of this section and section
502(a)(12)—
(1) AGGREGATE LIFETIME LIMIT.—The term ‘‘aggregate life-
time limit’’ means, with respect to benefits under a group
health plan or health insurance coverage, a dollar limitation on
the total amount that may be paid with respect to such bene-
fits under the plan or health insurance coverage with respect
to an individual or other coverage unit.
(2) ANNUAL LIMIT.—The term ‘‘annual limit’’ means, with re-
spect to benefits under a group health plan or health insurance
coverage, a dollar limitation on the total amount of
benefits that may be paid with respect to such benefits in a 12-
month period under the plan or health insurance coverage with
respect to an individual or other coverage unit.
(3) MEDICAL OR SURGICAL BENEFITS.—The term ‘‘medical or
surgical benefits’’ means benefits with respect to
medical or surgical services, as defined under the terms of the
plan or coverage (as the case may be), but does not include
mental health or substance use disorder benefits.
(4) MENTAL HEALTH BENEFITS.—The term ‘‘mental health
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115
health conditions, as defined under the terms of the plan and
in accordance with applicable Federal and State law.
(5) SUBSTANCE USE DISORDER BENEFITS.—The term ‘‘sub-
stance use disorder benefits’’ means benefits with respect to
services for substance use disorders, as defined under the
terms of the plan and in accordance with applicable Federal
and State law.
(f) SECRETARY REPORT.—The Secretary shall, by January 1, 2012,
and every two years thereafter, submit to the appropriate commit-
tees of Congress a report on compliance of group health plans (and
health insurance coverage offered in connection with such plans)
with the requirements of this section. Such report shall include the
results of any surveys or audits on compliance of group health
plans (and health insurance coverage offered in connection with
such plans) with such requirements and an analysis of the reasons
for any failures to comply.
(g) NOTICE AND ASSISTANCE.—The Secretary, in cooperation with
the Secretaries of Health and Human Services and Treasury, as
appropriate, shall publish and widely disseminate guidance and in-
formation for group health plans, participants and beneficiaries,
applicable State and local regulatory bodies, and the National As-
sociation of Insurance Commissioners concerning the requirements
of this section and shall provide assistance concerning such re-
quirements and the continued operation of applicable State law.
Such guidance and information shall inform participants and bene-
ficiaries of how they may obtain assistance under this section, in-
cluding, where appropriate, assistance from State consumer and in-
surance agencies.
* * * * * * *
SUBPART C—GENERAL PROVISIONS
* * * * * * *
SEC. 733. DEFINITIONS.
(a) GROUP HEALTH PLAN.—For purposes of this part and section
502(a)(12)—
(1) IN GENERAL.—The term ‘‘group health plan’’ means an
employee welfare benefit plan to the extent that the plan pro-
vides medical care (as defined in paragraph (2) and including
items and services paid for as medical care) to employees or
their dependents (as defined under the terms of the plan) di-
rectly or through insurance, reimbursement, or otherwise.
Such term shall not include any qualified small employer
health reimbursement arrangement (as defined in section
9831(d)(2) of the Internal Revenue Code of 1986).
(2) MEDICAL CARE.—The term ‘‘medical care’’ means amounts
paid for—
(A) the diagnosis, cure, mitigation, treatment, or preven-
tion of disease, or amounts paid for the purpose of affect-
ing any structure or function of the body,
(B) amounts paid for transportation primarily for and es-
sential to medical care referred to in subparagraph (A),
and
(C) amounts paid for insurance covering medical care re-
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116
(b) DEFINITIONS RELATING TO HEALTH INSURANCE.—For purposes
of this part and section 502(a)(12)—
(1) HEALTH INSURANCE COVERAGE.—The term ‘‘health insur-
ance coverage’’ means benefits consisting of medical care (pro-
vided directly, through insurance or reimbursement, or other-
wise and including items and services paid for as medical care)
under any hospital or medical service policy or certificate, hos-
pital or medical service plan contract, or health maintenance
organization contract offered by a health insurance issuer.
(2) HEALTH INSURANCE ISSUER.—The term ‘‘health insurance
issuer’’ means an insurance company, insurance service, or in-
surance organization (including a health maintenance organi-
zation, as defined in paragraph (3)) which is licensed to engage
in the business of insurance in a State and which is subject to
State law which regulates insurance (within the meaning of
section 514(b)(2)). Such term does not include a group health
plan.
(3) HEALTH MAINTENANCE ORGANIZATION.—The term ‘‘health
maintenance organization’’ means—
(A) a federally qualified health maintenance organiza-
tion (as defined in section 1301(a) of the Public Health
Service Act (42 U.S.C. 300e(a))),
(B) an organization recognized under State law as a
health maintenance organization, or
(C) a similar organization regulated under State law for
solvency in the same manner and to the same extent as
such a health maintenance organization.
(4) GROUP HEALTH INSURANCE COVERAGE.—The term ‘‘group
health insurance coverage’’ means, in connection with a group
health plan, health insurance coverage offered in connection
with such plan.
(c) EXCEPTED BENEFITS.—For purposes of this part, the term ‘‘ex-
cepted benefits’’ means benefits under one or more (or any com-
bination thereof) of the following:
(1) BENEFITS NOT SUBJECT TO REQUIREMENTS.—
(A) Coverage only for accident, or disability income in-
surance, or any combination thereof.
(B) Coverage issued as a supplement to liability insur-
ance.
(C) Liability insurance, including general liability insur-
ance and automobile liability insurance.
(D) Workers‘ compensation or similar insurance.
(E) Automobile medical payment insurance.
(F) Credit-only insurance.
(G) Coverage for on-site medical clinics.
(H) Other similar insurance coverage, specified in regu-
lations, under which benefits for medical care are sec-
ondary or incidental to other insurance benefits.
(2) BENEFITS NOT SUBJECT TO REQUIREMENTS IF OFFERED
SEPARATELY.—
(A) Limited scope dental or vision benefits.
(B) Benefits for long-term care, nursing home care, home
health care, community-based care, or any combination
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(C) Such other similar, limited benefits as are specified
in regulations.
(3) BENEFITS NOT SUBJECT TO REQUIREMENTS IF OFFERED AS
INDEPENDENT, NONCOORDINATED BENEFITS.—
(A) Coverage only for a specified disease or illness.
(B) Hospital indemnity or other fixed indemnity insur-
ance.
(4) BENEFITS NOT SUBJECT TO REQUIREMENTS IF OFFERED AS
SEPARATE INSURANCE POLICY.—Medicare supplemental health
insurance (as defined under section 1882(g)(1) of the Social Se-
curity Act), coverage supplemental to the coverage provided
under chapter 55 of title 10, United States Code, and similar
supplemental coverage provided to coverage under a group
health plan.
(d) OTHER DEFINITIONS.—For purposes of this part—
(1) COBRA CONTINUATION PROVISION.—The term ‘‘COBRA
continuation provision’’ means any of the following:
(A) Part 6 of this subtitle.
(B) Section 4980B of the Internal Revenue Code of 1986,
other than subsection (f)(1) of such section insofar as it re-
lates to pediatric vaccines.
(C) Title XXII of the Public Health Service Act.
(2) HEALTH STATUS-RELATED FACTOR.—The term ‘‘health sta-
tus-related factor’’ means any of the factors described in sec-
tion 702(a)(1).
(3) NETWORK PLAN.—The term ‘‘network plan’’ means health
insurance coverage offered by a health insurance issuer under
which the financing and delivery of medical care (including
items and services paid for as medical care) are provided, in
whole or in part, through a defined set of providers under con-
tract with the issuer.
(4) PLACED FOR ADOPTION.—The term ‘‘placement’’, or being
‘‘placed’’, for adoption, has the meaning given such term in sec-
tion 609(c)(3)(B).
(5) FAMILY MEMBER.—The term ‘‘family member’’ means,
with respect to an individual—
(A) a dependent (as such term is used for purposes of
section 701(f)(2)) of such individual, and
(B) any other individual who is a first-degree, second-de-
gree, third-degree, or fourth-degree relative of such indi-
vidual or of an individual described in subparagraph (A).
(6) GENETIC INFORMATION.—
(A) IN GENERAL.—The term ‘‘genetic information’’ means,
with respect to any individual, information about—
(i) such individual‘s genetic tests,
(ii) the genetic tests of family members of such indi-
vidual, and
(iii) the manifestation of a disease or disorder in
family members of such individual.
(B) INCLUSION OF GENETIC SERVICES AND PARTICIPATION
IN GENETIC RESEARCH.—Such term includes, with respect
to any individual, any request for, or receipt of, genetic
services, or participation in clinical research which in-
cludes genetic services, by such individual or any family
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118
(C) EXCLUSIONS.—The term ‘‘genetic information’’ shall
not include information about the sex or age of any indi-
vidual.
(7) GENETIC TEST.—
(A) IN GENERAL.—The term ‘‘genetic test’’ means an
analysis of human DNA, RNA, chromosomes, proteins, or
metabolites, that detects genotypes, mutations, or chromo-
somal changes.
(B) EXCEPTIONS.—The term ‘‘genetic test’’ does not
mean—
(i) an analysis of proteins or metabolites that does
not detect genotypes, mutations, or chromosomal
changes; or
(ii) an analysis of proteins or metabolites that is di-
rectly related to a manifested disease, disorder, or
pathological condition that could reasonably be de-
tected by a health care professional with appropriate
training and expertise in the field of medicine in-
volved.
(8) GENETIC SERVICES.—The term ‘‘genetic services’’ means—
(A) a genetic test;
(B) genetic counseling (including obtaining, interpreting,
or assessing genetic information); or
(C) genetic education.
(9) UNDERWRITING PURPOSES.—The term ‘‘underwriting pur-
poses’’ means, with respect to any group health plan, or health
insurance coverage offered in connection with a group health
plan—
(A) rules for, or determination of, eligibility (including
enrollment and continued eligibility) for benefits under the
plan or coverage;
(B) the computation of premium or contribution amounts
under the plan or coverage;
(C) the application of any pre-existing condition exclu-
sion under the plan or coverage; and
(D) other activities related to the creation, renewal, or
replacement of a contract of health insurance or health
benefits.
* * * * * * *
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MINORITY VIEWS
INTRODUCTION
We continue to see the terrible consequences of students and
young adults suffering from mental health issues. In the wake of
prolonged school closures, Democrats have received a giant warn-
ing: stop playing to the base and start working across the aisle to
save lives.
School closures were particularly damaging for young people. In
2021, more than one-third of high school students reported they ex-
perienced poor mental health during the COVID–19 pandemic, and
over 40 percent reported persistent feelings of sadness or hopeless-
ness during the preceding year.1 Studies show that the prolonged
shutdown of schools exacerbated students’ mental health issues.2
The pandemic created a pervasive sense of fear, economic insta-
bility, and forced physical distancing, which significantly worsened
the stresses young people already faced. School closures caried high
social and economic costs, and the impact was particularly severe
for the most vulnerable students and families.3 According to the
Centers for Disease Control and Prevention, fewer than half of
youth reported feeling close to peers and teachers at school during
the pandemic.4 Youth who were more disconnected from school
were found to be more likely to have feelings of hopelessness, seri-
ous considerations of suicide, or attempts of suicide.5 Additionally,
fifteen percent of youth reported suffering from at least one major
depressive episode in the preceding year.6 Childhood depression is
more likely to persist into adulthood if gone untreated.7 Suicide is
the fourth leading cause of death among teens and young adults
globally and the second leading cause of death in youth in the
United States.8
TITLES I–IV
Democrats included two currently funded programs and two new
programs related to education and Head Start programs in H.R.
7780 as the base for their proposal to address mental health chal-
lenges in schools. While these were a good start to addressing the
mental health needs of students, there are improvements that
could be made to better target this support. To truly work for the
students, these programs should be better connected to the needs
on the ground.
1 https://www.cdc.gov/media/releases/2022/p0331-youth-mental-health-covid-19.html.
2 Student anxiety, depression increasing during school closures, survey finds | EdSource.
3 Student anxiety, depression increasing during school closures, survey finds | EdSource.
4 https://www.cdc.gov/media/releases/2022/p0331-youth-mental-health-covid-19.html.
5 https://www.cdc.gov/mmwr/volumes/69/wr/mm6945a3.htm.
6 https://www.cdc.gov/mmwr/volumes/69/wr/mm6945a3.htm.
7 Youth Data 2021 | Mental Health America (mhanational.org).
8 https://www.nimh.nih.gov/health/statistics/suicide.
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Despite current funding for these efforts being just under $125
million, H.R. 7780 authorizes over $5 billion in additional spend-
ing, an irresponsible amount with no guarantee that the Depart-
ment can award those funds to high-quality programs.
That is why Republicans took a more practical, reliable, and re-
sponsible approach to help local school and community leaders ad-
dress the mental health needs for students. First, the Republican
proposal is funded at $125 million over five years. This corresponds
to the existing funding and, with the legislative improvements pro-
posed, would be real funds available for states and school districts
to use to address mental health. In the time since this bill was
marked up, Congress hastily passed other legislation that included
these programs, thus making this bill obsolete before the report
was filed. Unfortunately, that legislation included significant new
funding for these programs without addressing the basic concern of
ensuring these taxpayer funds will be used in an effective manner
to meet its intended purpose: to help students.
Republican Amendment
Beyond addressing funding levels, Republicans streamlined the
existing programs to avoid duplication of effort. By streamlining
funding, eligible entities can spend less time filling out paperwork
and tracking duplicative requirements and more time meeting the
mental health needs of students. Further, the Republican proposal
is structured around actual needs on the ground. By requiring a
need analysis by the state, the program allows the state to use the
funds to address the actual needs they are facing rather than forc-
ing the state to use those funds on whatever needs Washington,
D.C. has determined to be significant. There is also a requirement
for the local eligible entity to have a need analysis which can either
be a part of the state analysis or can be conducted by the eligible
entity. The Republican plan makes it clear that these funds are in-
tended to help all students in need, whether they be traditional
public school students, charter school students, or private school
students. As previously noted, the school closures had a severe,
negative impact on students, increasing the mental health crisis
communities are facing. The Republican proposal would ensure
local school leaders have access to funding to address the particular
needs of their community.
The Republican proposal also recognizes the need for coordina-
tion of programs. Rather than layer program on top of program like
the Democrat proposal does, the Republican plan provides grants
to states which in turn provide grants to local eligible entities. This
ensures the state is aware of the needs in each community that re-
ceives funding and can both better support those efforts and can
avoid wasteful and duplicative work. Further, the Republican plan
provides the state with funding to support the local grantees
through technical assistance and other support. This protects the
taxpayer‘s investment to ensure the funds are well spent. The plan
also includes funding for states to offer statewide programs to ad-
dress the mental health needs students face; these programs must
be tied to the need analysis. Finally, by including statewide activi-
ties, Republicans ensure greater support to students across the
state.
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Finally, the Republican proposal includes important account-
ability metrics and would restrict any funds from going to states
or local entities if they cannot demonstrate adequate progress to-
ward the stated goals in the application. In other words, if the
state or local grantee is not doing what they said they would or if
what they are doing simply does not work, the taxpayer would stop
funding it. This plan would support success and cut off failed
projects.
TITLE V: RISE ACT
Title V of the Mental Health Matters Act contains the Respond,
Innovate, Succeed, and Empower (RISE) Act. Republicans support
the intent of this language: we agree that students with disabilities
should face fewer hoops to jump through when documenting their
disability to their college or university and receiving their legally
required accommodations. Unfortunately, the RISE Act has unin-
tended consequences that should be addressed before this package
proceeds. These flaws are the inevitable result when the majority
rushes legislation through the process without taking the time ei-
ther to engage with outside stakeholders or to reach across the
aisle to understand the impact of a bill.
First, this bill could force colleges and universities to accept long-
outdated documentation from students who are claiming disability
status but who do not in fact have a qualifying disability under fed-
eral disability law. Second, the bill removes almost all discretion
from colleges and universities in determining if a student qualifies
as a student with a disability. The Individuals with Disabilities
Education Act, which imposes a stricter legal framework on ele-
mentary and secondary schools than colleges and universities face
under section 504 of the Rehabilitation Act of 1973 or the Ameri-
cans with Disabilities Act, gives elementary and secondary schools
more discretion than this bill provides colleges and universities.
Whether this is an admirable feature of the bill or a concerning one
is debatable—and that is the point: we should debate it, among
ourselves and with outside experts, so that we can fully understand
the consequences of such a decision before we move forward.
Committee Republicans would happily engage with stakeholders
and our friends across the aisle to come to a bipartisan resolution
on this bill. And perhaps we will be able to do that in the next Con-
gress in the context of a comprehensive reform of the Higher Edu-
cation Act. Unfortunately, until the majority allows that process to
play out, we must urge opposition to this language.
TITLES VI AND VII OF H.R. 7780
Titles VI and VII of H.R. 7780 include the text of two bills 9 in-
troduced less than a week before the markup of H.R. 7780 and that
were never discussed at a Committee hearing. Committee Repub-
licans are dedicated to improving access to employee benefits and
reducing the burdens on employers who offer such benefits. That
is why Committee Republicans worked with Committee Democrats
9 H.R. 7767, the Strengthening Behavioral Health Benefits Act, was introduced by Rep. Joe
Courtney (D–CT) on May 13, 2022, and H.R. 7740, the Employee and Retiree Access to Justice
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Act of 2022, was introduced by Rep. Mark DeSaulnier (D–CA) on May 12, 2022.
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on a bipartisan basis to pass H.R. 5891, the Retirement Improve-
ment and Savings Enhancement Act (RISE Act) as part of H.R.
2954, the Securing a Strong Retirement Act (SSRA). Rather than
push partisan legislation like H.R. 7780, which will threaten access
and affordability of workplace benefits, the Committee should focus
on enacting the bipartisan reforms in the RISE Act and SSRA.
H.R. 7780 THREATENS AND DELAYS ACCESS TO WORKPLACE BENEFITS
DOL Enforcement Authority
Committee Republicans support mental health parity, which is
why Congress has passed multiple laws to ensure employers are
able to meet mental health parity requirements under the Mental
Health Parity and Addiction Equity Act (MHPAEA). Unfortunately,
Title VI of H.R. 7780 inappropriately expands DOL’s ability to
bring civil actions against plans governed by the Employee Retire-
ment Income Security Act of 1974 (ERISA) that voluntarily offer
mental health benefits. Allowing recoveries for ‘‘all losses’’ is am-
biguous and overly broad, especially given the difficulty of deter-
mining what would be required to make the plan participant
whole. Such a change to ERISA could cause employers to drop
mental health and substance use disorder benefits altogether for
fear of excessive litigation. The Partnership for Employer-Spon-
sored Coverage stated as follows:
Two proposals in H.R. 7780 (to encourage individual and
DOL [Department of Labor]/EBSA [Employee Benefits Se-
curity Administration] enforcement of parity standards;
and to ban arbitration and other discretionary clauses) es-
sentially weaponize the relationship between employers
that sponsor health coverage and their covered employees
as regards to mental health care and substance abuse dis-
order and coverage. Litigation will add to the cost of cov-
erage for employees and employers without meaningfully
improving coverage.10
There is great value in providing patients with robust mental
health coverage, which is why many employers voluntarily include
mental health coverage as part of a benefits package. However, de-
spite receiving explicit direction from Congress outlining the infor-
mation DOL must provide plans, the Department has yet to issue
guidance illustrating how plans may demonstrate compliance with
the law. DOL’s 2020 MHPAEA report to Congress stated that 100
percent of plans were out of compliance with the Department’s
mental health parity analysis requirements.11 If DOL believes that
every plan is out of compliance, the Department has clearly failed
to explain to plans what is required and to assist them in adhering
to those requirements.
10 Letter from Partnership for Employer-Sponsored Coverage to Reps. Bobby Scott and Vir-
ginia Foxx (May 17, 2022).
11 2022 MHPAEA REPORT TO CONGRESS, https://www.dol.gov/sites/dolgov/files/EBSA/laws-and-
regulations/laws/mental-health-parity/ report-to-congress-2022-realizing-parity-reducing-stigma-
dlhill on DSK120RN23PROD with HEARING
and-raising-awareness.pdf.
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Discretionary Clauses
Most ERISA benefit plans, including health and retirement
plans, adopt discretionary clauses which grant the plan adminis-
trator discretionary authority to interpret the plan documents and
resolve disputes pursuant to DOL regulations.12 This ability to del-
egate authority to the plan administrator is born out of ERISA’s
goal of encouraging employers to sponsor and implement benefit
plans. Further, ERISA‘s claims process is meant to be expedited,
and factual determinations need to be made about the terms of the
plan.
By prohibiting discretionary clauses in ERISA plans under Title
VII of H.R. 7780, any benefit determinations made by the plan
would be far more likely to be challenged in court. Every time an
issue arises where the plan terms are not 100 percent clear, the
plan administrator would be powerless to interpret the plan, leav-
ing litigation as the only means of resolving the issue. This out-
come will substantially increase the costs and liability of offering
mental health and retirement benefits to workers and their fami-
lies. The American Retirement Association agree with this assess-
ment, stating as follows:
This change will simply result in more retirement plan
administrative costs and litigation that will benefit the
plaintiffs’ bar but not everyday working Americans who
are saving for a secure retirement. This legislation only of-
fers more deterrent to maintaining retirement plans and
should be opposed.13
The U.S. Chamber of Commerce shared similar concerns with the
Committee:
Contrary to its name, by effectively prohibiting arbitra-
tion in ERISA claims and prohibiting discretionary
clauses, this provision would limit recovery amounts, in-
crease the costs of claims for benefits, and increase the
time for courts to resolve claims for benefits, including
time sensitive claims such as disability and severance.14
At best, employers sponsoring mental health and retirement
plans will divert cash to pay plaintiffs’ attorneys that could be bet-
ter spent providing benefits to employees. At worst, plan sponsors
will reduce or eliminate benefits altogether. Either way, there will
be downward pressure on mental health benefits and retirement
savings—at a time when soaring inflation is eating away both
wages and savings.
Arbitration Clauses
Title VII of H.R. 7780 further delays ERISA’s benefits claims
process at the expense of plan participants by prohibiting pre-dis-
pute arbitration and curtailing post-dispute arbitration. Arbitration
clauses are important tools for protecting participants and benefit
12 Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101 (1989).
13 Letter from Brian H. Graff, Exec. Dir./CEO, Am. Ret. Ass’n., to Reps. Bobby Scott and Vir-
ginia Foxx (May 17, 2022).
14 Letter from Neil L. Bradley, Exec. Dir., Chief Pol’y Off., & Head of Strategic Advocacy, U.S.
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Chamber of Com., to Reps. Bobby Scott and Virginia Foxx (May 18, 2022).
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plans from the costs of litigation and the fees paid to plaintiffs’ at-
torneys. Unlike litigation, which takes years to realize results, arbi-
tration can facilitate the timely receipt of benefits owed to partici-
pants. The national average time between filing a civil case and a
trial in U.S. district courts is more than two years; if the court is
overworked, the average is often three or four years.15 In compari-
son, a recent study found that consumer- and employee-arbitration
claimants are more likely to win, receive higher monetary awards,
and spend less time in arbitration than in litigation.16 Given the
advantages of arbitration to plan participants, Title VII of H.R.
7780’s curtailment of arbitration only benefits trial lawyers who
reap attorneys‘ fees in litigation.
H.R. 7780 NEEDLESSLY SPENDS TAXPAYER DOLLARS
H.R. 7780 needlessly appropriates an additional $275 million in
new mandatory funding over 10 years to EBSA for mental health
parity enforcement. To put this into perspective, EBSA’s Fiscal
Year 2022 budget is $181 million. In addition to annual appropria-
tions, EBSA received $8.6 million in FY 2021 and $23.8 million in
FY 2020 to implement the mental health parity requirements of
the Consolidated Appropriations Act, 2020.17
REPUBLICAN AMENDMENTS
Rep. Rick Allen (R–GA) offered an amendment at the Committee
markup to ensure that DOL assists employers and health plans to
meet mental health parity requirements and to protect taxpayers
from yet more needless government spending. The amendment
makes implementation of Title VI of H.R. 7780 conditional on DOL
fulfilling its statutory duty by issuing a rule that provides clear
guidance and compliance assistance to employers and plans on how
to meet its mental health parity requirements. The amendment
also strikes Title VI’s $275 million in new mandatory funding for
mental health parity enforcement. Congress should not provide
DOL with additional enforcement authority and taxpayer dollars to
create mental health parity rules through litigation and legal
claims. DOL could more effectively advance mental health if it fo-
cused its efforts on establishing clear guidance and compliance as-
sistance instead of harassing plans and employers. Democrats
voted against this commonsense amendment.
Rep. Diana Harshbarger (R–TN) offered an amendment high-
lighting Democrats‘ preferential treatment for union-run benefit
plans. The amendment strikes Title VII‘s exemption of multiem-
ployer benefit plans from the bill‘s prohibition on discretionary
clauses. Prohibiting discretionary clauses is a drastic and ill-con-
ceived departure from current law that will only benefit trial law-
15 The Judicial Conference’s Recommendation for More Judgeships: Hearing Before the S.
Comm. on the Judiciary, 116th Cong. (June 30, 2020) (statement of Judge Brian Stacy Miller,
D.C. Ark., at 10).
16 NAM D. PHAM & MARY DONAVAN, NDP ANALYTICS, FAIRER, FASTER, BETTER III: AN EMPIR-
ICAL ASSESSMENT OF CONSUMER AND EMPLOYMENT ARBITRATION (Mar. 2022), https://
instituteforlegalreform.com/wp-content/uploads/2022/03/FINAL-ndp-Consumer-and-Employment-
Arbitration-Paper-2022.pdf.
17 Title VI’s large increase in spending reflects the Department of Labor’s FY 2023 budget re-
quest for mental health parity enforcement. The budget request proposes doubling EBSA’s full-
time employees auditing plans. FY 2023 CONGRESSIONAL BUDGET JUSTIFICATION, EMP. BENEFITS
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SECURITY ADMIN., https://www.dol.gov/sites/dolgov/files/general/budget/2023/CBJ-2023-V2-01.pdf.
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yers at the expense of workers and retirees who rely on employee
benefit plans. If Democrats insist on disrupting the administration
of employee benefits, then they should not exempt their friends in
Big Labor who run multiemployer benefit plans. While alarming,
this blatant display of favoritism is not surprising. Last year,
Democrats enacted an irresponsible and uncapped taxpayer-funded
bailout of mismanaged multiemployer pension plans under the
guise of COVID 19 relief in the so-called American Rescue Plan
Act.18 Rather than apply the law equally to single employer and
multiemployer plans, Democrats rejected this amendment in a
party-line vote.
Rep. Mary Miller (R–IL) offered an amendment to strike the re-
quirement to provide graduates specific education regarding how to
meet the needs of lesbian, gay, bisexual, transgender, queer, or
questioning, non-binary, or Two-Spirit. This grant is supposed to be
for increasing the number of school-based mental health profes-
sionals serving in high-need school districts and federal grants
should be structured to help local areas address the various needs
they face.
CONCLUSION
Mental health is a grave issue that impacts families and children
alike. Washington should stop pretending there is one solution that
works for every community. If America is going to solve this crisis,
it will take clearer goals, stronger support, and more flexibility
given to local leaders on how best to solve the problems faced on
the ground. The Republican alternative does all this in a fiscally
responsible manner. Republicans are ready to work with Democrats
once they are drop their bloated proposals that fail to focus on local
needs.
VIRGINIA FOXX,
Ranking Member.
GLENN ‘‘GT’’ THOMPSON.
TIM WALBERG.
GLENN GROTHMAN.
ELISE M. STEFANIK.
RICK W. ALLEN.
JAMES COMER.
RUSS FULCHER.
FRED KELLER.
BURGESS OWENS.
LISA C. MCCLAIN.
MARY E. MILLER.
SCOTT FITZGERALD.
CHRIS JACOBS.
BRAD FINSTAD.
Æ
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18 Pub. L. No. 117–2 (2021), 29 U.S.C. § 1432.
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