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# Legislative Bulletin.....................................................June 25, 2008

**Contents:**

**H.R. 6358** --- Stop Child Abuse in Residential Programs for Teens Act
of 2008

**S. 3180** --- A bill to temporarily extend the programs under the
Higher Education Act of 1965

> **H. Con. Res. 377---** Authorizing the use of the rotunda of the
> Capitol for a ceremony commemorating the 60th Anniversary of the
> beginning of the integration of the United States Armed Forces

H.R. 6358--- Stop Child Abuse in Residential Programs for Teens Act of
2008

(*Miller, D-CA*)

**Please note the conservative concerns below.**

**[Order of Business]{.underline}**: H.R. 6358 is scheduled to be
considered on Wednesday, June 25, 2008, under a motion to suspend the
rules and pass the bill.

**[Background]{.underline}**: H.R. 5876 was considered by the House on
Tuesday, June 24, subject to a structured rule, [H. Res.
1276](http://www.rules.house.gov/SpecialRules_details.aspx?NewsID=3964).
Upon Republicans offering the Motion to Recommit, the Democrats pulled
H.R. 5876 from floor consideration. Rep. Miller introduced H.R. 6358
today, which builds upon H.R. 5876 by including the Manager's Amendment,
which passed by a vote of 422-0, **but not** the Republican Motion to
Recommit which would have amended the bill to require that a covered
facility under the bill create a policy to ensure that parental consent
is required before any prescription medication (including
contraception), not previously disclosed in writing by such parents or
legal guardians, may be dispensed to such child. In addition, the bill
does **not** contain the Rep. Shea-Porter amendment, which would have
required programs to have policies in place for ensuring that any
changes to a child's medication are made in consultation with a
qualified medical professional and a parent or legal guardian of the
child.

For more background on the original bill, see the [RSC Legislative
Bulletin on H.R.
5876](http://www.house.gov/hensarling/rsc/doc/lb_06192008_residential_treatment_facilities.doc)
published June 24, 2008.

**[Summary of Changes Included in H.R. 6358]{.underline}**

The Manager's Amendment made three changes to the definition of "covered
program" under H.R. 5876. It expanded the definition to include public
residential programs, and it struck the exclusion of psychiatric
residential treatment facilities and the exclusion of foster care group
homes. The amendment also struck the requirement for the Secretary of
Health and Human Services to make unannounced site inspections of
covered programs once every two years, and it struck Section 5 (private
right of action). The amendment required the Secretary to report to
Congress on the activities of the national toll-free hotline, directed
the Secretary to conduct a study on the outcomes of residential
programs, and amended one of the standards to require a timeline about
notifying parents.

This Manager's Amendment, now inserted into the bill, addressed some of
the initial concerns of the Ranking Member and other Republicans.
According to a document released by the Education and Labor Committee
Minority staff, the following concerns were addressed:

-   "H.R. 5876, as introduced, called for parallel regulatory and
    enforcement systems at the federal and state level, with cumbersome
    and intrusive federal involvement in private programs that are
    rightly governed by state child protection laws. Marking a
    considerable improvement, under the bill that will be considered by
    the House:

    -   "The federal government will not undertake biennial site visits
        of covered facilities, a requirement that would have been costly
        and impractical.

    -   "The federal government will not be responsible for
        investigating and enforcing allegations of abuse at such
        facilities, unless cases are referred by the states.

-   "The original legislation created a new private right of action to
    sue in federal court, an invitation for trial lawyers to try to
    capitalize on potential cases of abuse.

    -   "There is no new right-to-sue created specifically to benefit
        trial lawyers. Victims of abuse retain their right to seek
        remedies in the courts, but the focus is on prevention and
        protection, instead of litigation.

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-   "H.R. 5876 as originally drafted contained incomplete protections
    for the young people in these programs, covering only private
    facilities while ignoring proven cases of abuse and mistreatment at
    public programs. The Manager's Amendment makes the following
    changes:

    -   "Both public and private facilities are covered under the
        state-based abuse prevention structure included in the bill,
        ensuring equal protections for young people being treated in
        residential facilities.

    -   "The bill also maintains the same strong background check
        requirements to ensure that individuals treating vulnerable
        youth are thoroughly vetted."

**[Committee Action]{.underline}**: The bill was introduced on June 25,
2008 and referred to the House Committee on Education and Labor, where
no official action was taken.

**[Conservative Concerns]{.underline}**:

This legislation represents a large expansion of the oversight role of
the federal government through the Department of Health and Human
Services. Furthermore, it expands the Department's enforcement authority
over all state procedures and monitoring efforts of residential
treatment facilities---efforts that are already in effect. Many
conservatives may be concerned that increased federal government
oversight into state procedures may cause unnecessary conflict between
the federal government and the states.

In addition, the bill would require that in order for a state to receive
Child Abuse Prevention and Treatment Act (CAPTA) funding, they must
implement very specific regulations and licensing standards. CAPTA,
first enacted in 1974, was intended to create a focal point in the
federal government to identify and address issues of child abuse and
neglect, and to support effective methods of prevention and treatment.
This money is essential for states, and some may oppose it being tied to
increased regulations and standards.

**Furthermore, this bill authorizes \$250 million each year for five
years to expand the authority of the federal government, and to
implement programs which are already being run at the state level. With
such a significant cost, some conservatives may be concerned that this
legislation is being considered under suspension of the rules.**

**[Administration Position]{.underline}**: A recent [Statement of
Administration
Policy](http://www.whitehouse.gov/omb/legislative/sap/110-2/saphr5876-h.pdf)
on H.R. 5876 released by the Administration states:

> The Administration strongly supports the overall goal of H.R. 5876,
> which is to protect children from child abuse and neglect in private
> facilities. However, the Administration is concerned that H.R. 5876,
> as reported by the Committee on Education and Labor, would drastically
> expand the oversight role and enforcement authority of the Federal
> Government in dealing with private residential programs for teens and
> potentially conflict and interfere with State enforcement procedures.
> For the reasons that follow, the Administration strongly opposes House
> passage of H.R. 5876.
>
> The Administration strongly objects to the expanded role for the
> Department of Health and Human Services (HHS) under H.R. 5876 and
> opposes the authorization of spending outside of the President's FY
> 2009 budget. Under current law, HHS provides funds to States to
> improve systems that identify and address child abuse and neglect and
> requires States that receive funding to establish licensing standards
> for residential programs. Youth who are not in foster care and placed
> in private institutions that receive no funds from HHS are outside the
> purview of the Federal Government. In addition, the Federal Government
> has no oversight over child abuse and neglect investigations. Each
> State currently has its own process for defining abuse and neglect,
> investigating allegations of such offenses, and enforcing the law
> against abuse and neglect. H.R. 5876 would involve the Federal
> Government in these investigation and enforcement systems by requiring
> Federal investigations of individual child fatalities as well as
> Federal-State joint investigations of child abuse and neglect at
> covered programs. The Administration objects to the expansion of the
> Federal Government into this traditionally State-regulated area
> because Federal involvement would likely interfere and conflict with
> State procedures.
>
> This expansion is also problematic in that it could create a
> disincentive for States to take on additional responsibilities as
> would be required by the bill. For example, H.R. 5876 conditions a
> State's eligibility for Child Abuse Prevention and Treatment Act
> (CAPTA) funding on its implementation of certain licensing standards
> and enforcement procedures with respect to the residential programs.
> However, the bill also expands and then continues the Federal
> Government's enforcement role over these same residential programs.
> This expanded role of the Federal Government could have the unintended
> consequence of lessening both the need and the incentive for States to
> assume the additional costs and responsibility of implementing these
> new standards and procedures that would be required for CAPTA funding.
>
> Furthermore, the Administration notes that the bill is inconsistent in
> its definition of "protection and advocacy" systems, which sometimes
> refers only to such systems for individuals with developmental
> disabilities while at other times referencing other types of
> protection and advocacy systems as well. For example, in referencing
> "the appropriate protection and advocacy system," the bill appears to
> include protection and advocacy systems for individuals with other
> disabilities or with mental illness, but the narrow definition of
> protection and advocacy system does not include such other systems.
> The Administration is concerned that this inconsistency could lead to
> confusion and incomplete coverage of residential programs.

**[Cost to Taxpayers]{.underline}**: While no CBO estimate exists for
H.R. 6358, CBO estimates that H.R. 5876 authorizes the appropriation of
\$250 million per year for fiscal years 2009 through 2013 for child
abuse prevention programs. CBO estimates that implementing the bill
would cost \$805 million over the 2009-2013 period, assuming
appropriation of the authorized amounts. CBO also estimates that
enacting H.R. 5876 would not affect direct spending. Furthermore, the
bill would create new civil penalties, which CBO estimates would have an
insignificant effect on revenues over the 2009-2018 period.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}**: Yes, the bill increases the role of the
federal government by granting the Department of Health and Human
Services the authority to regulate and enforce measures at state
residential treatment programs to ensure the safety of the youth at such
programs.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: No.

**[Does the Bill Comply with House Rules Regarding Earmarks/Limited Tax
Benefits/Limited Tariff Benefits?]{.underline}**: While no House Report
exists for H.R. 6358, the Education and Labor Committee, in [House
Report
110-669](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr669):),
asserts that, "H.R. 5876 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in clauses
9(d), 9(e) or 9(f) of rule XXI of the Rules of the House of
Representatives."

**[Constitutional Authority]{.underline}**: While no House Report exists
for H.R. 6358, the Education and Labor Committee, in [House Report
110-669](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr669):),
cites constitutional authority in Article I, section 8, clauses 1, 3 and
18 of the U.S. Constitution (Congress' power to make all Laws which
shall be necessary and proper for carrying into Execution [the foregoing
Powers]{.underline}). **This constitutional authority statement fails to
cite a foregoing power of Congress.** House Rule XIII, Section 3(d)(1),
requires that all committee reports contain "a statement citing the
*specific* *powers* granted to Congress in the Constitution to enact the
law proposed by the bill or joint resolution." *\[emphasis added\]*

[Note]{.underline}: Article VI, Clause 3 of the U.S. Constitution states
that, "The Senators and Representatives...and all executive and judicial
Officers...shall be bound by Oath or Affirmation, to support this
Constitution."

**[RSC Staff Contact]{.underline}**: Sarah Makin,
<sarah.makin@mail.house.gov>, (202) 226-0718.

**S. 3180---A bill to temporarily extend the programs under the Higher
Education Act of 1965 *(Kennedy, D-MA)***

**[Order of Business]{.underline}**: S. 3180 is scheduled to be
considered on Wednesday, June 25, 2008, under a motion to suspend the
rules and pass the resolution.

**[Summary]{.underline}**: S. 3180 would extend the authorization (at
current, FY08 levels) for the Higher Education Act of 1965 (HEA) through
July 31, 2008. The HEA current extension is set to expire on June 30,
2008.

**[Additional Background]{.underline}**: The Higher Education Act of
1965 (HEA) provides the majority of the federal government's higher
education financial aid programs. According to CRS, HEA programs
comprise the government's "major student aid programs to support
postsecondary education attendance, as well as other significant
programs such as those providing aid to special groups of institutions
of higher education and support services to enable disadvantaged
students to complete secondary school and enter and complete college."
The HEA has been operating under temporary extensions while a long-term
extension of the program is negotiated. On February 7, 2008, the House
passed H.R. 4137, the College Opportunity and Affordability Act of 2007,
which would extend the HEA through FY 2014. The bill has yet to be taken
up by the Senate. The last temporary extension of the HEA was passed May
20, 2008 and extended programs through June 30, 2008.

[**Committee Action**:]{.underline} S. 3180 was introduced on June 23,
2008 at which time the Senate considered the bill and passed it without
amendment by Unanimous Consent.

[**Cost to Taxpayers**:]{.underline} A CBO score for S. 3180 is not
available.

[**Does the Bill Expand the Size and Scope of the Federal
Government?**:]{.underline} No.

[]{.mark}

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: No.

**[Constitutional Authority]{.underline}**: A committee report citing
constitutional authority is unavailable.

**[RSC Staff Contact]{.underline}**: Sarah Makin;
<sarah.makin@mail.house.gov>; 202-226-0718.

**H. Con. Res. 377---** **Authorizing the use of the rotunda of the
Capitol for a ceremony commemorating the 60th Anniversary of the
beginning of the integration of the United States Armed Forces
*(Skelton, D-MO)***

**[Order of Business]{.underline}**: H. Con. Res. 377 is scheduled to be
considered on Wednesday, June 25, 2008, under a motion to suspend the
rules and pass the resolution.

**[Summary]{.underline}**: H. Con. Res. 377 would express that it is
resolved by the House of Representatives (the Senate concurring) that
the House allow;

-   "Use of Rotunda-The rotunda of the Capitol is authorized to be used
    on July 23, 2008, for a ceremony commemorating the 60th anniversary
    of President Truman's Executive Order 9981, which states, 'It is
    hereby declared to be the policy of the President that there shall
    be equality of treatment and opportunity for all persons in the
    armed services without regard to race, color, religion or national
    origin.'

-   "Preparations- Physical preparations for the ceremony referred to in
    subsection (a) shall be carried out in accordance with such
    conditions as the Architect of the Capitol may prescribe."

The bill lists the following findings:

-   "African-American men and women have served with distinction,
    courage, and honor in the United States Armed Forces throughout the
    history of the nation, even when they were denied the basic
    constitutional freedoms promised to all citizens;

-   "The practice of racial segregation and discrimination in the
    military prevented African-Americans from receiving the full
    recognition to which they were entitled as a result of their
    service;

-   "African-Americans, in leading the effort to protest discriminatory
    treatment in the armed forces, paved the way for successful
    integration of women, Asians, Hispanics, and other ethnic
    minorities;

-   "The dedicated and heroic service of African-American men and women
    during World War II led to President Truman's historic Executive
    Order 60 years ago that marked the beginning of racial integration
    in the United States Armed Forces;

-   "As a result of President Truman's action, the United States Armed
    Forces has become one of the nation's best examples of an
    institution committed to equality, opportunity, and advancement
    based on merit rather than race, religion, or ethnicity; and

-   "The heroic contributions of each member of the United States Armed
    Forces should be honored and celebrated."

[Committee Action]{.underline}: H. Con. Res. 377 was introduced on June
23, 2008 and referred to the House Committee on House Administration,
which took no further action.

[Cost to Taxpayers]{.underline}: The resolution does not authorize
expenditures.\
\
[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline} No.\
\
[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline} No.\
\
[RSC Staff Contact]{.underline}: Sarah Makin; 202-226-0718;
[**sarah.makin@mail.house.gov**](mailto:sarah.makin@mail.house.gov).