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THE STATE
EDUCATION DEPARTMENT / THE UNIVERSITY
OF THE STATE OF NEW YORK / ALBANY, NY 12234 |
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TO: |
EMSC-VESID Committee |
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FROM: |
Rebecca H. Cort |
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SUBJECT: |
Extension of emergency adoption of proposed regulations relating to behavioral interventions, including the use of aversive behavioral interventions. |
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DATE: |
August 18,
2006 |
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STRATEGIC GOAL: |
Goals 1 and
2 |
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AUTHORIZATION(S): |
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SUMMARY
Issue for Decision
Should the Regents approve an extension of the emergency action taken at
the June 2006 Regents meeting which amended section 19.5 of the Rules of the
Board of Regents and sections 200.1, 200.4 and 200.7 of the Commissioner's
Regulations, and added a new section 200.22 of the Commissioner's Regulations,
relating to behavioral interventions, including the use of aversive behavioral
interventions?
Reason for Consideration
To ensure that the emergency rule adopted at the June 2006 Regents meeting remains continuously in effect until the effective date of the rule’s adoption on a permanent basis.
Proposed Handling
The proposed regulations are before the Committee for a second emergency
adoption. A Statement of the
Facts and Circumstances Which Necessitate Emergency Action is
attached.
Procedural History
This issue was first discussed at the March 2006
EMSC/VESID Committee Meeting. Draft
proposed regulations were discussed at the May 2006 EMSC/VESID Committee Meeting
and proposed regulations were adopted by emergency action at the June 2006
Regents meeting, effective June 23, 2006.
A Notice of Emergency Adoption and Proposed Rule Making was published in
the State Register on July 12, 2006.
The public comment period for these regulations closed on August 28,
2006. Three public hearings were
conducted in August 2006 (New York City, Albany and Syracuse).
Background
Information
The purpose of the proposed regulations is to establish policy and
general rules for behavioral interventions, including a prohibition on the use
of aversive behavioral interventions.
The regulations establish a process whereby a panel of independent
experts would provide a recommendation to a committee on special education (CSE)
or committee on preschool special education (CPSE) for a child-specific
exception to the prohibition on the use of aversive behavioral interventions
when necessary for behaviors that pose significant health and safety
concerns. The regulations also
establish standards for assessing student behaviors, developing and implementing
behavioral intervention plans, emergency interventions, use of time out rooms
and standards for programs using aversive behavioral interventions, as
authorized through the child-specific exception process.
The State Education Department has received a
substantial amount of public comment on the proposed rule making. It was initially anticipated that the
proposed rule would be presented to the Board of Regents for adoption as a
permanent rule at their September 11-12, 2006 meeting, which is the first
scheduled meeting after expiration of the 45-day public comment period mandated
by the State Administrative Procedure Act.
However, additional time is required to review the public comment and
determine whether any revisions should be made to the proposed rule in response
to the public comment.
Timetable for Implementation
The June 2006 emergency adoption will expire on
September 20, 2006, 90 days after its filing with the Department of State. A second emergency action is necessary
for the preservation of the public health and safety to ensure that the June
emergency adoption remains continuously in effect until the effective date of
its adoption as a permanent rule. A
Notice of Emergency Adoption will be published in the State Register on
October 4, 2006.
If no changes to the proposed rule are necessary after review of the
public comment, it will be presented for permanent adoption at the October
Regents meeting. In the event it is
determined that substantial revisions must be made to the proposed rule, the
revised rule cannot be presented for permanent adoption until the December 4-5,
2006 Regents meeting, which is the first scheduled meeting after expiration of
the 30-day public comment period for revised rules established by the State
Administrative Procedure Act. In
addition, since a second emergency action is effective for only 60 days, and
there is no Regents meeting in November, a third emergency action will be
necessary at the October Regents meeting to keep the proposed rule continuously
in effect until its permanent adoption in December.
Recommendation
It is recommended that the Board of Regents take the following
action:
VOTED:
That section 19.5 of the Rules of the Board of Regents be amended; that
new paragraphs (lll) and (mmm) of section 200.1 of the Regulations of the
Commissioner be added; that subparagraph (i) of paragraph (3) of subdivision (d)
of section 200.4 of the Regulations of the Commissioner be amended; that
subparagraph (i) of paragraph (2) and subparagraph (iv) of paragraph (3) of
subdivision (a) of section 200.7 of the Regulations of the Commissioner be
amended; that a new paragraph (8) of subdivision (b) and a new paragraph (6) of
subdivision (c) be added to section 200.7 of the Regulations of the
Commissioner; and that a new section 200.22 be added to the Regulations of the
Commissioner, as submitted, effective September 19, 2006, as an emergency action
upon a finding by the Board of Regents that such action is necessary for the
preservation of the public health and safety to minimize the risk of physical
injury and/or emotional harm to students who are subject to aversive behavioral
interventions that inflict pain or discomfort, by ensuring that the rule's
standards providing for the use of such interventions only when absolutely
necessary and under conditions of minimal intensity and duration to accomplish
their purpose, remain continuously in effect until the effective date of the
rule's adoption on a permanent basis.
Attachments
PROPOSED AMENDMENT OF SECTION 19.5 OF THE RULES OF
THE BOARD OF REGENTS AND SECTIONS 200.1, 200.4 AND 200.7 OF THE REGULATIONS OF
THE COMMISSIONER OF EDUCATION AND PROMULGATION OF A NEW SECTION 200.22 OF THE
REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 207, 210, 305,
4401, 4402, 4403 AND 4410 OF THE EDUCATION LAW, RELATING TO BEHAVIORAL
INTERVENTIONS, INCLUDING THE USE OF AVERSIVE BEHAVIORAL
INTERVENTIONS
STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE
EMERGENCY ACTION
The purpose of the proposed rule is to establish standards for behavioral
interventions, including a prohibition on the use of aversive behavioral
interventions; to provide for a child-specific exception to the prohibition on
the use of aversive behavioral interventions; and to establish standards for
programs using aversive behavioral interventions.
Until the
adoption of emergency regulations, effective June 23, 2006, neither New York
State Education Law nor the Regulations of the Commissioner prohibited the use
of aversive behavioral interventions in school programs serving New York State
students. Aversive behavioral
interventions have the potential to affect the health and safety of children,
yet there was a lack of a clear policy and no standards on their use in school
programs. Through site visits,
reports and complaints filed by parents, school districts and others, the
Department identified concerns with preschool programs serving children with
disabilities that use aversive behavioral interventions such as sprays to the
face and noxious tastes placed on the child's lips, and an out-of-state
residential school serving more than 145 New York State students with
disabilities that is using contingent food programs, mechanical restraints and
electric shock interventions to modify students' behaviors. A recent site review of the out-of-state
residential school identified significant concerns for the potential impact on
the health and safety of New York's students placed at this school. Regulations are needed to limit the
aversive behavioral interventions that inflict pain and discomfort to children
and have the potential to result in physical injury and/or emotional harm. In those exceptional instances when a
child displays such extreme self-injurious or aggressive behaviors as to warrant
a form of punishment to intervene with the behavior, regulations are necessary
to ensure that such interventions are used in accordance with the highest
standards of oversight and monitoring and in accordance with research-based
practices.
The proposed rule was adopted as an emergency measure
at the June 2006 meeting of the Board of Regents, effective June 23, 2006, upon
a finding by the Board of Regents that such action is necessary for the
preservation of the public health and safety in order to minimize the risk of
physical injury and/or emotional harm to students who are subject to aversive
behavioral interventions that inflict pain or discomfort, by immediately
establishing standards for the use of such interventions that will ensure they
are used only when absolutely necessary and under conditions of minimal
intensity and duration to accomplish their purpose. A Notice of Emergency Adoption and
Proposed Rule Making was filed with the Department of State on June 23, 2006 and
was published in the State Register on July 12, 2006.
The State Education Department has received a
substantial amount of public comment on the proposed rule making in response to
its publication in the State Register, and three public hearings concerning the
proposed rule that were conducted by the Department in August 2006. It was initially anticipated that the
proposed rule would be presented to the Board of Regents for adoption as a
permanent rule at their September 11-12, 2006 meeting, which is the first
scheduled meeting after expiration of the 45-day public comment period mandated
by the State Administrative Procedure Act.
However, additional time is required to review the public comment and
determine whether any revisions should be made to the proposed rule in response
to the public comment. In the event
it is determined that substantial revisions must be made to the proposed rule,
State Administrative Procedure Act section 202(4-a) requires that the revised proposed rule may not be
adopted as a permanent rule until at least 30 days after publication of a Notice
of Revised Rule Making in the State Register. Accordingly, the proposed rule cannot be
presented for permanent adoption until the October 23-24, 2006 Regents meeting
or, if revisions are necessary, the December 4-5, 2006 Regents meeting (no
Regents meeting is scheduled for November 2006).
However, pursuant to SAPA section 202(6)(b), the June
2006 emergency adoption will expire on September 20, 2006 (ninety days after the
date of its filing with the Department of State on June 23, 2006). A second emergency action is
necessary for the preservation of the public health and safety to minimize the
risk of physical injury and/or emotional harm to students who are subject to
aversive behavioral interventions that inflict pain or discomfort, by ensuring
that the rule's standards providing for the use of such interventions only when
absolutely necessary and under conditions of minimal intensity and duration to
accomplish their purpose, remain continuously in effect until the effective date
of the rule's adoption on a permanent basis.
Pursuant to Education Law
sections 207, 210, 305, 4401, 4402, 4403, and 4410
1.
Section 19.5 of the Rules of the Board of Regents is amended, effective
September 19, 2006, as follows:
§ 19.5 Prohibition of corporal punishment and
certain behavioral interventions.
(a)
Prohibition of corporal punishment.
(1) No
teacher, administrator, officer, employee or agent of a school district in this
State, [or of] a board of cooperative educational services (BOCES), a charter
school, State-operated or State-supported school, an approved preschool program,
an approved private school, an approved out-of-State day or residential school,
or a registered nonpublic nursery, kindergarten, elementary or secondary
school in this State, shall use corporal punishment against a
pupil.
[(b)] (2) As used in this section, corporal
punishment means any act of physical force upon a pupil for the purpose of
punishing that pupil, except as otherwise provided in [subdivision (c)]
paragraph 3 of this [section] subdivision.
[(c)] (3) In situations in which alternative
procedures and methods not involving the use of physical force cannot reasonably
be employed, nothing contained in this section shall be construed to prohibit
the use of reasonable physical force for the following
purposes:
[(1)] (i) to protect oneself from physical
injury;
[(2)] (ii) to protect another pupil or teacher
or any person from physical injury;
[(3)] (iii) to protect the property of the
school, school district or others; or
[(4)] (iv) to restrain or remove a pupil whose
behavior is interfering with the orderly exercise and performance of school
or school district functions, powers and duties, if that pupil has
refused to comply with a request to refrain from further disruptive acts.
(b) Prohibition of
the use of aversive behavioral interventions.
(1) No public school,
BOCES, charter school, approved preschool program, approved private school,
State-operated or State-supported school in this State, approved out-of-State
day or residential school, or registered nonpublic nursery, kindergarten,
elementary or secondary school in this State shall employ the use of aversive
behavioral interventions to reduce or eliminate maladaptive behaviors, except as
provided pursuant to section 200.22(e) and (f) of this
Title.
(2) As used in this
section, aversive behavioral intervention means:
(i) application of noxious, painful, intrusive stimuli or activities intended to induce pain such as electric skin shock, ice applications, hitting, slapping, pinching, kicking, hurling, strangling, shoving, deep muscle squeezes or other similar stimuli;
(ii) any form of
noxious, painful or intrusive spray, inhalant or
tastes;
(iii) withholding
sleep, shelter, bedding, bathroom facilities or
clothing;
(iv) contingent food programs that include withholding meals or limiting essential nutrition or hydration or intentionally altering staple food or drink in order to make it distasteful;
(v) movement limitation used as a punishment, including but not limited to helmets and mechanical restraint devices;
(vi) the placement of
a child unsupervised or unobserved in a room from which the student cannot exit
without assistance; or
(vii) other stimuli or
actions similar to the interventions described in subparagraphs (i) through (vi)
of this paragraph.
The term does not include such interventions as voice
control, limited to loud, firm commands; time-limited ignoring of a specific
behavior; token fines as part of a token economy system; brief physical prompts
to interrupt or prevent a specific behavior; interventions medically necessary
for the treatment or protection of the student; or other similar
interventions.
2. Paragraphs
(lll) and (mmm) are added to section 200.1 of the Regulations of the
Commissioner of Education, effective September 19, 2006, as
follows:
(lll) Aversive
behavioral intervention means application of noxious, painful, intrusive stimuli
or activities intended to induce pain such as electric skin shock, ice
applications, hitting, slapping, pinching, kicking, hurling, strangling,
shoving, deep muscle squeezes or other similar stimuli; any form of noxious,
painful or intrusive spray, inhalant or tastes; withholding sleep, shelter,
bedding, bathroom facilities or clothing; contingent food programs that include
withholding meals or limiting essential nutrition or hydration or intentionally
altering staple food or drink in order to make it distasteful; movement
limitation used as a punishment, including but not limited to helmets and
mechanical restraint devices; the placement of a child unsupervised or
unobserved in a room from which the student cannot exit without assistance;
or other similar stimuli or
actions. The term does not include
such interventions as voice control, limited to loud, firm commands;
time-limited ignoring of a specific behavior; token fines as part of a token
economy system; brief physical prompts to interrupt or prevent a specific
behavior; interventions medically necessary for the treatment or protection of
the student; or other similar interventions.
(mmm)
Behavioral intervention plan means a plan that is based on the results of
a functional behavioral assessment and, at a minimum, includes a description of
the problem behavior, global and specific hypotheses as to why the problem
behavior occurs and intervention strategies to address the
behavior.
3.
Subparagraph (i) of paragraph (3) of subdivision (d) of section 200.4 of
the Regulations of the Commissioner of Education is amended, effective September
19, 2006, as follows:
(i) in the case
of a student whose behavior impedes his or her learning or that of others,
consider strategies, including positive behavioral interventions, and supports
and other strategies to address that behavior that are consistent with the
requirements in section 200.22 of this Part;
4.
Subparagraph (i) of paragraph (2) of subdivision (a) of section 200.7 of
the Regulations of the Commissioner is amended, effective September 19, 2006, as
follows:
(i) Conditional
approval for private schools shall be limited to a period of one school year, or
the period of time required to complete approval, and will be based
on:
(a) . . .
(b) . . .
(c) . . .
(d)
for schools
operating as corporate entities, evidence of the
following:
(1) . . .
(2)
. . .
(3)
for out-of-state
schools, a license or charter from the state education agency of the state in
which the school is located; [and]
(e) at least one
onsite program review visit by program or fiscal staff of the Education
Department; and
(f) submission
for approval of the school’s procedures regarding behavioral interventions,
including, if applicable, procedures for the use of aversive behavioral
interventions.
5.
Subparagraph (iv) of paragraph (3) of subdivision (a) of section 200.7 of
the Regulations of the Commissioner of Education is amended, effective September
19, 2006, as follows:
(iv) Schools may be
removed from the approved list five business days after written notice by the
commissioner indicating that there is a clear and present danger to the health
or safety of students attending the school, and listing the dangerous conditions
at the school, including, but not limited to, evidence that an approved
private school is using aversive behavioral interventions to reduce or eliminate
maladaptive behaviors of students without a child-specific exception provided
pursuant to section 200.22(e) of this Part or that an approved private school is
using aversive behavioral interventions in a manner inconsistent with the
standards as established in section 200.22 (f) of this
Part.
6. Paragraph
(8) is added to subdivision (b) of section 200.7 of the Regulations of the
Commissioner of Education, effective September 19, 2006, as follows:
(8) Except as
provided in subdivision (e) of section 200.22 of this Part, an approved private
school, a State-operated school, or a State-supported school is prohibited from
using corporal punishment and aversive behavioral interventions to reduce or
eliminate maladaptive behaviors of students.
7. Paragraph
(6) is added to subdivision (c) of section 200.7 of the Regulations of the
Commissioner of Education, effective September 19, 2006, as
follows:
(6) Policies and procedures relating to the use of aversive behavioral interventions. Not later than August 15, 2006, a private school that proposes to use or to continue to use aversive behavioral interventions in its program shall submit its written policies and procedures on behavioral interventions to the Department with certification that the school’s policies, procedures and practices are demonstrably in compliance with the standards established in section 200.22(f) of this Part. Any school that fails to meet this requirement shall be immediately closed to new admissions of New York students and shall be prohibited from using aversive behavioral interventions with any New York State student placed in such program. Failure to comply with this requirement may result in termination of private school approval pursuant to paragraph (3) of subdivision (a) of this section.
8. A new
section 200.22 is added to Part 200 of the Regulations of the Commissioner of
Education, effective September 19, 2006, as follows:
§ 200.22 Program standards
for behavioral interventions.
Behavioral intervention plans shall be provided in
accordance with this section and those other applicable provisions of this Part
and/or Part 201 that are not inconsistent with this section.
(a) Assessment of student
behaviors. For purposes of this section, an assessment
of student behaviors shall mean a functional behavioral assessment (FBA), as
such term is defined in section 200.1(r) of this Part.
(1) A FBA shall be
conducted as required in section 200.4 of this Part and section 201.3 of this
Title.
(2) The FBA shall, as
appropriate, be based on multiple sources of data including, but not limited to,
information obtained from direct observation of the student, information from
the student, the student’s teacher(s) and/or related service provider(s), a
review of available data and information from the student's record and other
sources including any relevant information provided by the student’s
parent. The FBA shall not be based
solely on the student’s history of presenting problem
behaviors.
(3) The FBA shall provide a baseline of the student's problem behaviors with regard to frequency, duration, intensity and/or latency across activities, settings, people and times of the day and include the information required in section 200.1(r) of this Part in sufficient detail to form the basis for a behavioral intervention plan for the student that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement.
(b) Behavioral
intervention plan. The CSE or CPSE
shall consider the development of a behavioral intervention plan for a student
with a disability whenever the student exhibits persistent behaviors that impede
his or her learning or that of others, despite consistently implemented general
school-wide or classroom-wide interventions; when the student’s behavior places
the student or others at risk of harm or injury; when the CSE or CPSE is
considering more restrictive programs or placements as a result of the student’s
behavior; and as required pursuant to section 201.3 of this
Title.
(1) In accordance
with the requirements in section 200.4 of this Part, in the case of a student
whose behavior impedes his or her learning or that of others, the CSE or CPSE
shall consider strategies, including positive behavioral interventions and
supports and other strategies to address that behavior. If a particular device or service,
including an intervention, accommodation or other program modification is needed
to address the student’s behavior that impedes his or her learning or that of
others, the IEP shall so indicate.
A student’s need for a behavioral intervention plan shall be documented
on the IEP and such plan shall be reviewed at least annually by the CSE or
CPSE.
(2) Except as provided in subdivision (f) of this section, a behavioral intervention plan shall not include the use of aversive behavioral interventions.
(3) The behavioral intervention plan shall identify:
(i) the
baseline measure of the problem behavior, including the frequency, duration,
intensity and/or latency of the targeted behaviors. Such baseline shall, to the extent
practicable, include data taken across activities, settings, people and times of
the day. The baseline data shall be
used as a standard to establish performance criteria and against which to
evaluate intervention effectiveness;
(ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and
(iii) a schedule to
measure the effectiveness of the interventions, including the frequency,
duration and intensity of the targeted behaviors at scheduled
intervals.
(4) Progress Monitoring. The implementation of a student’s
behavioral intervention plan shall include regular progress monitoring of
the frequency, duration and intensity of the behavioral interventions at
scheduled intervals, as specified in the behavioral intervention plan and on the
student's IEP. The results of the
progress monitoring shall be documented and reported to the student's parents
and to the CSE or CPSE and shall be considered in any determination to revise a
student's behavioral intervention plan or IEP.
(c) Use of time out
rooms. (1) Each school which
uses a time out room as part of its behavior management approach shall ensure
that the school’s policy and procedures on the use of the time out room are
developed and implemented consistent with this subdivision, including the
physical and monitoring requirements, parental rights and IEP requirements for
students with disabilities.
(2) A student’s IEP
shall specify when a behavioral intervention plan includes the use of a time out
room for a student with a disability, including the maximum amount of time a
student will need to be in a time out room as a behavioral consequence as
determined on an individual basis in consideration of the student’s age and
individual needs.
(3) Except for
emergency interventions, the use of a time out room shall only be used in
conjunction with a behavioral intervention plan that is designed to teach and
reinforce alternative appropriate behaviors.
(4) Parents shall be
informed prior to the initiation of a behavioral intervention plan which will
incorporate the use of a time out room.
Upon request, parents must be shown the physical space that will be used
as a time out room.
(5) The physical
space used as a time out room shall provide a means for continuous visual and
auditory monitoring of the student.
The room shall be of adequate width, length and height to allow the
student to move about and recline comfortably. Wall and floor coverings should be
designed to prevent injury to the student and there shall be adequate lighting
and ventilation. The temperature of
the room shall be within the normal comfort range and consistent with the rest
of the building. The room shall be
clean and free of objects and fixtures that could be potentially dangerous to a
student and shall meet all local fire and safety codes.
(6) The time out room
shall be unlocked and the door must be able to be opened from the inside. The use of locked rooms or spaces for
purposes of time out or emergency interventions is
prohibited.
(7) Staff shall be
assigned to continuously monitor the student in a time out room. The staff must be able to see and hear
the student at all times.
(8) The school shall
establish and implement procedures to document the use of the time out room,
including information to monitor the effectiveness of the use of the time out
room to decrease specified behaviors.
(9) For an education
program operated pursuant to section 112 of the Education Law and Part 116 of
this Title, if a provision of this section relating to use of time out rooms
conflicts with the rules of the respective State agency operating such program,
the rules of such State agency shall prevail and the conflicting provisions of
this section shall not apply.
(d) Emergency use of
physical restraints.
(1)
The use of physical force
to restrain a student from engaging in behaviors shall not be used as a
substitute for systematic behavioral interventions that are designed to change,
replace, modify or eliminate a targeted behavior.
(2) Staff who may be
called upon to implement emergency interventions shall be provided with
appropriate training in safe and effective restraint
interventions.
(3) Emergency use of
physical restraints shall be used only when no other methods of controlling the
student's behaviors would be effective.
(4) For
an education program operated pursuant to section 112 of the Education Law and
Part 116 of this Title, if a provision of this section relating to the emergency
use of physical restraints conflicts with the rules of the respective State
agency operating such program, the rules of such State agency shall prevail and
the conflicting provision of this section shall not
apply.
(e) Child-specific exception to use aversive behavioral interventions to reduce or modify student behaviors.
(1) (i) Effective on or after October 1, 2006, whenever a CSE or CPSE is considering whether a child-specific exception to the prohibition of the use of aversive behavioral interventions set forth in section 19.5(b) of this Title is warranted, the school district shall submit an application to the commissioner.
(ii) For any student with an IEP in effect prior to October 1, 2006 that includes the use of aversive behavioral interventions, such application shall be submitted prior to the next scheduled review of the student’s IEP, but not later than October 1, 2006.
(2) The application
shall be in a form prescribed by the commissioner. The commissioner shall refer the
application to an independent panel of experts appointed by the commissioner or
commissioner's designee. The panel
shall be comprised of three professionals with appropriate clinical and
behavioral expertise to make such determinations.
(3) The panel shall
review the written application; the student's IEP; the student's diagnosis(es);
the student’s functional behavioral assessment; any proposed, current and/or
prior behavioral intervention plans for the student, including documentation of
the implementation and progress monitoring of the effectiveness of such plans;
and other relevant individual evaluations and medical information that allow for
an assessment of the student’s cognitive and adaptive abilities and general
health status, including any information provided by the student’s
parent.
(4) The panel's
recommendation to the CSE or CPSE as to whether a child-specific exception is
warranted shall be based on the professional judgment of the panel
that:
(i) the student
is displaying self-injurious or aggressive behaviors that threaten the physical
well being of the student or that of others and a full range of evidence-based
positive behavioral interventions have been consistently employed over an
appropriate period of time and have failed to result in sufficient improvement
of a student’s behavior; or
(ii) the student's
self-injurious or aggressive behaviors are of such severity as to pose
significant health and safety concerns that warrant the use of aversive
behavioral interventions to effect rapid suppression of the behavior and a range
of nonaversive prevention strategies have been employed and have failed to
provide a sufficient level of safety.
(5) The panel shall
notify the school district and the commissioner of its recommendation as to
whether a child-specific exception is warranted and the reasons therefor. For applications received pursuant to
subparagraph (i) of paragraph (1) of this subdivision, the panel shall provide
such notice within 15 business days of receipt of an
application.
(6) The CSE or CPSE
shall, based on its consideration of the recommendation of the panel, determine
whether the student's IEP shall include a child-specific exception allowing the
use of aversive behavioral interventions.
The school district shall notify the commissioner when a child-specific
exception has been included in the student's IEP.
(7) Any IEP providing
for a child-specific exception allowing the use of aversive behavioral
interventions shall identify the specific:
(i) targeted
behavior(s);
(ii) aversive
behavioral intervention(s) to be used to address the behavior(s);
and
(iii) aversive conditioning
device(s) where the aversive behavioral intervention(s) includes the use of such
device(s).
(8) Nothing in this section shall authorize the use of aversive behavioral interventions without the informed written consent of the student's parent.
(9) Any such
child-specific exception shall be in effect only during the school year for
which such IEP applies. If the
student's IEP is amended, or a subsequent IEP is adopted, that no longer permits
the use of aversive behavioral interventions, the school district need not
notify the panel or the commissioner.
(10)
For an education program operated pursuant to section 112 of the
Education Law and Part 116 of this Title, if a provision of this section
relating to the use of aversive behavioral interventions conflicts with the
rules of the respective State agency operating such program, the rules of such
State agency shall prevail and the conflicting provision of this section shall
not apply.
(11)
Coordination with licensing agencies. Nothing in this section shall authorize
a school or agency to provide aversive behavioral interventions that are
otherwise prohibited by the State agency licensing such
program.
(f) Program
standards for the use of aversive behavioral interventions.
(1)
Applicability. (i) The requirements in this subdivision
shall apply to a public school, BOCES, charter school, approved preschool
program, approved private school, State-operated or State-supported school in
this State and an approved out-of-State day or residential
school.
(ii) For an education program operated pursuant to section 112 of the Education Law and Part 116 of this Title, if a provision of this section relating to the use of aversive behavioral interventions conflicts with the rules of the respective State agency operating such program, the rules of such State agency shall prevail and the conflicting provision of this section shall not apply.
(2) General
requirements. Any program that
employs the use of aversive behavioral interventions to modify an individual
student's behavior as authorized pursuant to subdivision (e) of this section
shall comply with the following standards:
(i) The program
shall provide for the humane and dignified treatment of the student and for the
development of such student’s full potential at all times. The program shall promote respect for
the student’s personal dignity and right to privacy and shall not employ the use
of threats of harm, ridicule or humiliation, nor implement behavioral
interventions in a manner that shows a lack of respect for basic human needs and
rights.
(ii) Aversive behavioral
intervention procedures may be used
only if such interventions are recommended by the CSE or CPSE consistent with
the student’s IEP and behavioral intervention plan as determined by the CSE or
CPSE.
(iii)
Aversive behavioral
intervention procedures shall not be the sole or primary intervention used with
a student and shall be used in conjunction with other related services, as
determined by the CSE or CPSE, such as verbal or other counseling services,
speech and language therapy and/or functional communication
training.
(iv) Aversive
behavioral interventions shall be combined with reinforcement procedures, as
individually determined based on an assessment of the student’s reinforcement
preferences.
(v) Aversive behavioral
interventions shall be implemented consistent with peer-reviewed research based
practices and shall include individualized procedures for generalization and
maintenance of behaviors and for the fading of the use of such aversive
behavioral interventions.
(vi) The use of
aversive behavioral interventions shall be limited to those self-injurious or
aggressive behaviors identified for such interventions on the student’s
IEP.
(vii) Whenever possible, the
use of aversive behavioral interventions shall apply the lowest intensity for
the shortest duration and period of time that is effective to treat the problem
behavior and employ strategies that increase the effectiveness of mild levels of
aversive behavioral interventions.
In the event the aversive behavioral intervention fails to result in a
suppression or reduction of the behavior over time, alternative procedures shall
be considered that do not include increasing the magnitude of the aversive
behavioral intervention.
(viii) The use of any aversive
conditioning device used to administer an electrical shock or other noxious
stimuli to a student to modify undesirable behavioral characteristics shall be
limited to devices tested for safety and efficacy and approved for such use by
the United States Food and Drug Administration where such approval is required
by federal regulation. The
magnitude, frequency and duration of any administration of aversive stimulus
from such a device must have been shown to be safe and effective in clinical
peer-reviewed studies. The use of
automated aversive conditioning devices is prohibited.
(ix) No program may
use an aversive behavioral intervention on a student while the student is in a
physical or mechanical restraint.
(x) Behavioral intervention plans shall be designed and supervised by qualified professionals in accordance with their respective areas of professional competence. All personnel involved in the development, application, monitoring, data collection or review of a behavioral intervention plan that includes the use of aversive behavioral interventions shall be appropriately certified in accordance with the provisions of Part 80 of this Title and sections 200.6 and 200.7 of this Part
(3) Human Rights
Committee. (i) Each school
that uses aversive behavioral interventions with students shall establish a
Human Rights Committee to monitor the school’s behavior intervention program for
any student being considered for or receiving aversive behavioral interventions
to ensure the protection of legal and human rights of individuals.
(ii) The Human Rights
Committee shall be comprised of individuals not employed by the school or
agency, which shall include at least one licensed psychologist with appropriate
credentials in applied behavior analysis; one licensed physician, physician’s
assistant or nurse practitioner; one registered dietician or nutritionist; one
attorney, law student or paralegal; and one parent or parent advocate. In addition, when the purpose of the
Human Rights Committee meeting includes a review of an individual New York State
student’s program, a representative of the school district or agency placing the
student in the program and a representative of the Department shall be invited
to participate.
(iii) The Human Rights
Committee shall meet at least quarterly to review, monitor and investigate the
implementation of students’ behavioral intervention plans that include aversive
behavioral interventions. A written
report on the findings and recommendations of the Human Rights Committee
regarding an individual student shall be provided to the CSE or CPSE of the
student and to the agency that placed the student in the program.
(4) Supervision and
training requirements. Any
person who uses aversive behavioral interventions on students shall receive
appropriate supervision, including direct observation. Appropriate training shall be provided
on a regular, but at least annual basis, which shall include, but not be limited
to, training on:
(i) safe and
therapeutic emergency physical restraint
interventions;
(ii) data collection
of the frequency, duration and latency of behaviors;
(iii) identification of
antecedent behaviors and reinforcing
consequences of the behavior;
(iv) approaches to
teach alternative skills or behaviors including functional communication
training;
(v) assessment of
student preferences for reinforcement,
(vi) assessing and
responding to the collateral effects of the use of aversive behavioral
interventions including, but not limited to, effects on a student’s health,
increases in aggression, increases in escape behaviors and/or emotional
reactions;
(vii) privacy rights of
students; and
(viii) documentation and reporting
of incidents, including emergency restraints and injuries.
(5) Parent consent. Aversive behavioral interventions shall be provided only with the informed written consent of the parent and no parent shall be required by the program to remove the student from the program if he or she refuses consent for an aversive behavioral intervention.
(6) Quality assurance
reviews. The program’s use of
aversive behavioral interventions, including a review of all incident reports
relating to such interventions, shall be subject to quality assurance reviews to
ensure that practices are clinically sound, supported by proper documentation
and consistent with these program standards and the school’s policies and
procedures as approved by the Department.
(7) Progress monitoring. (i) The program shall provide for ongoing monitoring of student progress, including the collection and review of data and information. Such information shall include reports on the assessment of and strategies used to address any indirect or collateral effects the use of aversive behavioral interventions may be having on the student, including, but not limited to, increases in aggressive or escape behaviors, health-related effects and/or emotional reactions. The program shall submit quarterly written progress reports on the implementation of the student’s behavioral intervention program to the CSE or CPSE and to the agency that placed the student in the program.
(ii) A school district
that places a student in a program that uses aversive behavioral interventions
with such student shall be responsible to ensure that the student’s IEP and
behavioral intervention plan are being implemented. The CSE or CPSE shall convene at least
every six months, or more frequently as needed, to review the student’s
educational program and placement for any student for whom the CSE or CPSE has
recommended the use of aversive behavioral interventions. Such review shall include the review of
written progress monitoring and incident reports, at least annual observations
of and, as appropriate, interviews with the student in the program and regular
communication with the student’s parent.
(8) Policies and procedures. Each school that proposes to use aversive behavioral interventions pursuant to a child-specific exception shall submit its policies and procedures consistent with this subdivision to the Department for approval prior to the use of such interventions.