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 January 16, 2007
as follows:
§ 19.5
Prohibition of corporal punishment and aversive
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 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
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 intervention means an intervention that
is intended to induce pain or discomfort to a student for the purpose of
eliminating or reducing maladaptive behaviors, including such interventions
as:
(i) contingent application of noxious, painful, intrusive stimuli or
activities;
(ii) any form of noxious, painful or intrusive spray, inhalant or
tastes;
(iii) contingent food programs that include the denial or delay of the
provision of meals or intentionally altering staple food or drink in order to
make it distasteful;
(iv) movement limitation used as a punishment, including but not
limited to helmets and mechanical restraint devices;
or
(v) other stimuli or actions similar to the interventions described in
subparagraphs (i) through (iv) 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. Subdivision
(r) of section 200.1 of the Regulations of the Commissioner of Education is
amended, effective January 16, 2007 as follows:
(r) Functional
behavioral assessment means the process of determining why the student engages
in behaviors that impede learning and how the student’s behavior relates to the
environment. The functional
behavioral assessment [includes] shall be developed consistent with the
requirements in section 200.22(a) of this Part and shall include, but is not
limited to, the identification of the problem behavior, the definition of the
behavior in concrete terms, the identification of the contextual factors that
contribute to the behavior (including cognitive and [effective] affective
factors) and the formulation of a hypothesis regarding the general conditions
under which a behavior usually occurs and probably consequences that serve to
maintain it.
3.
Subdivisions (lll) and (mmm) are added to section 200.1 of the
Regulations of the Commissioner of Education, effective January 16, 2007 as
follows:
(lll) Aversive
intervention means the same as such term is defined in section 19.5(b)(2) of
this Title.
(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
that include positive behavioral supports and services to address the
behavior.
4.
Subparagraph (i) of paragraph (3) of subdivision (d) of section 200.4 of
the Regulations of the Commissioner of Education is amended, effective January
16, 2007 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;
5.
Subparagraph (i) of paragraph (2) of subdivision (a) of section 200.7 of
the Regulations of the Commissioner is amended, effective January 16, 2007 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
interventions.
6.
Subparagraph (iv) of paragraph (3) of subdivision (a) of section 200.7 of
the Regulations of the Commissioner of Education is amended, effective January
16, 2007 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 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 interventions in a manner inconsistent with the standards as
established in section 200.22 (f) of this Part.
7. Paragraph
(8) is added to subdivision (b) of section 200.7 of the Regulations of the
Commissioner of Education, effective January 16, 2007 as follows:
(8) Aversive
interventions prohibited.
(i) Except as
provided in subdivision (e) of section 200.22 of this Part, an approved private
school serving school age students with disabilities, a State-operated school,
or a State-supported school is prohibited from using aversive interventions to
reduce or eliminate maladaptive behaviors of students.
(ii) An approved preschool program is
prohibited from using aversive interventions with preschool students with
disabilities without exception.
8. Paragraph
(6) is added to subdivision (c) of section 200.7 of the Regulations of the
Commissioner of Education, effective January 16, 2007 as
follows:
(6) Policies and
procedures relating to the use of aversive interventions. Not later than August 15, 2006, a
private school that proposes to use or to continue to use aversive interventions
in its program shall submit its written policies and procedures on behavioral
interventions to the Department.
Only those private schools with policies and procedures that are approved
pursuant to section 200.22(f)(8) on or before June 30, 2007 shall be authorized
to use such interventions with New York State students. Failure to comply with the provisions of
this paragraph may result in revocation of approval to accept new admissions of
New York State students or termination of private school approval pursuant to
paragraph (3) of subdivision (a) of this section.
Behavioral interventions for students with
disabilities 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. (1) The CSE or
CPSE shall consider the development of a behavioral intervention plan, as such
term is defined in section 200.1(mmm) of this Part, for a student with a
disability when:
(i) 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;
(ii) the student’s
behavior places the student or others at risk of harm or injury;
(iii) the CSE or CPSE
is considering more restrictive programs or placements as a result of the
student’s behavior; and/or
(iv) as required
pursuant to section 201.3 of this Title.
(2) 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.
(3) Except as
provided in subdivision (f) of this section, a behavioral intervention plan
shall not include the use of aversive interventions.
(4) 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.
(5) 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. A time out room is an
area for a student to safely deescalate, regain control and prepare to meet
expectations to return to his or her education program. Time out rooms are to be used in
conjunction with a behavioral intervention plan in which a student is removed to
a supervised area in order to facilitate self-control or to remove a student
from a potentially dangerous situation and as provided in paragraph (3) of this
subdivision.
(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. The
school's policy and procedures shall minimally
include:
(i) prohibiting
placing a student in a locked room or space or in a room where the student
cannot be continuously observed and supervised;
(ii) factors which may
precipitate the use of the time out room;
(iii) time limitations
for the use of the time out room;
(iv) staff training on
the policies and procedures related to the use of time out
room;
(v) data collection
to monitor the effectiveness of the use of time out rooms; and
(vi) information to be
provided to parents.
(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
unanticipated situations that pose an immediate concern for the physical safety
of a student or others, the use of a time out room shall be used only in
conjunction with a behavioral intervention plan that is designed to teach and
reinforce alternative appropriate behaviors.
(4) The school
district shall inform the student’s parents prior to the initiation of a
behavioral intervention plan that will incorporate the use of a time out room
for a student and shall give the parent the opportunity to see the physical
space that will be used as a time out room and provide the parent with a copy of
the school’s policy on the use of time out rooms.
(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 is prohibited.
(7) Staff shall
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
Interventions.
(1) For
purposes of this subdivision, emergency means a situation in which immediate
intervention involving the use of reasonable physical force pursuant to section
19.5(a)(3) of this Title is necessary.
(2) Use of emergency
interventions. (i) Emergency
interventions shall be used only in situations in which alternative procedures
and methods not involving the use of physical force cannot reasonably be
employed.
(ii) Emergency
interventions shall not be used as a punishment or as a substitute for
systematic behavioral interventions that are designed to change, replace, modify
or eliminate a targeted behavior.
(3) Staff
training. Staff who may be called
upon to implement emergency interventions shall be provided with appropriate
training in safe and effective restraint procedures in accordance with section
100.2(l)(1)(i)(g) of this Title, and 200.15(f)(1) of this Part, as
applicable.
(4)
Documentation. The school
must maintain documentation on the use of emergency interventions for each
student, which shall include the name and date of birth of the student; the
setting and the location of the incident; the name of the staff or other persons
involved; a description of the incident and the emergency intervention used,
including duration; a statement as to whether the student has a current
behavioral intervention plan; and details of any injuries sustained by the
student or others, including staff, as a result of the incident. The parent of the student shall be
notified and documentation of emergency interventions shall be reviewed by
school supervisory personnel and, as necessary, the school nurse or other
medical personnel.
(5)
Applicability. 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 emergency
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.
(e) Child-specific
exception to use aversive interventions to reduce or modify student
behaviors. A child-specific
exception to the prohibition of the use of aversive interventions set forth in
section 19.5 of this Title may be granted for a school-age student, in
accordance with the procedures outlined in this subdivision, only during the
2006-2007, 2007-2008 and 2008-2009 school years; provided that a student whose
IEP includes the use of aversive interventions as of June 30, 2009 may be
granted a child-specific exception in each subsequent school year, unless the
IEP is revised to no longer include such exception. No child-specific exception shall be
granted for a preschool student.
(1) Aversive
interventions shall be considered only for students who are displaying
self-injurious and/or aggressive behaviors that threaten the physical well being
of the student or that of others, and only to address such behaviors.
(2) No child-specific
exception shall be granted for interventions used as a consequence for behavior
which are intended to induce pain or discomfort that include ice applications,
hitting, slapping, pinching, deep muscle squeezes, use of an automated aversive
conditioning device, the combined simultaneous use of physical or mechanical
restraints and the application of an aversive intervention; withholding of
sleep, shelter, bedding, bathroom facilities, denial or unreasonable delays in
providing regular meals to the student that would result in a student not
receiving adequate nutrition; the placement of a child unsupervised or
unobserved in a room from which the student cannot exit without assistance or
actions similar to these interventions at the discretion of the
Commissioner.
(3) Whenever a CSE is
considering whether a child-specific exception is warranted, the school district
shall submit an application to the commissioner in a form prescribed by the
commissioner requesting a review of student specific information by an
independent panel of experts.
(4) The commissioner
shall refer the application to an independent panel of experts appointed by the
commissioner or commissioner's designee for a recommendation to the CSE as to
whether a child-specific exception is warranted. The panel shall be comprised of three
professionals with appropriate clinical and behavioral expertise to make such
determinations.
(5) 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.
(6) The panel's
recommendation to the CSE that 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
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.
(7) 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 students whose current IEP does not
include a child-specific exception, the panel shall provide such notice within
15 business days of receipt of an application.
(8) The CSE shall
determine, based on its consideration of the recommendation of the panel,
whether the student's IEP shall include a child-specific exception allowing the
use of aversive interventions. The
determination to provide a child-specific exception shall be made by the CSE and
not by a subcommittee. The CSE
shall request the participation of the school physician member in such
determination. The school district
shall notify and provide a copy of the student's IEP to the commissioner when a
child-specific exception has been included in the student's
IEP.
(9) Any IEP providing
for a child-specific exception allowing the use of aversive interventions shall
identify the specific:
(i)
self-injurious and/or aggressive targeted behavior(s);
(ii) aversive
intervention(s) to be used to address the behavior(s);
and
(iii) aversive conditioning
device(s) and/or mechanical restraint device(s) where the aversive
intervention(s) includes the use of such device(s).
(10) Nothing in this section shall
authorize the use of aversive interventions without the informed written consent
of the student's parent.
(11)
Any such child-specific exception shall be in effect only during the time
period the IEP providing such exception is in effect. If the continued use of an aversive
intervention for a student is being considered for subsequent IEP(s), the CSE
shall submit an annual application to the commissioner for each such
IEP(s). If the student's IEP is
amended or a subsequent IEP is adopted to no longer include a child-specific
exception, the school district need not notify the panel but shall submit a
revised copy of the student's IEP to the commissioner.
(12) 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
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.
(13) Coordination with licensing
agencies. Nothing in this section
shall authorize a school or agency to provide aversive interventions that are
otherwise prohibited by the State agency licensing such
program.
(f) Program
standards for the use of aversive interventions.
(1)
Applicability. (i) The requirements in this subdivision
shall apply to any public school, BOCES, charter school, approved private
school, State-operated or State-supported school in this State and an approved
out-of-State day or residential school that proposes to use aversive
interventions subject to the approval of the
Department.
(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
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 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. 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
intervention procedures may be used
only if such interventions are recommended by the CSE consistent with the
student’s IEP and behavioral intervention plan as determined by the
CSE.
(iii) Aversive 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, such as verbal or other counseling services, speech and language therapy
and/or functional communication training.
(iv) Aversive
interventions shall be combined with reinforcement procedures, as individually
determined based on an assessment of the student’s reinforcement
preferences.
(v) Aversive 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
interventions.
(vi) The use of
aversive 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 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
interventions. In the event the
aversive 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
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
combine the simultaneous use on a student of a physical or mechanical restraint
device with another aversive intervention.
(3) Human Rights
Committee. (i) Each school that uses aversive
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 interventions to ensure the protection of legal and human
rights of individuals.
(ii) Each 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 and may
include not more than two additional individuals selected by the school or
agency. 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
interventions. A written report on
the findings and recommendations of the Human Rights Committee regarding an
individual student shall be provided to the CSE of the student and to the agency
that placed the student in the program.
(4) Supervision and
training requirements. Aversive
interventions shall be administered by appropriately licensed professionals or
certified special education teachers in accordance with Part 80 of this Title
and sections 200.6 and 200.7 of this Part or under the direct supervision and
direct observation of such staff.
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 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 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 intervention. A parent shall be given a copy of the
school's policies and procedures on the use of aversive
interventions.
(6) Quality assurance
reviews. The program providing
aversive interventions shall conduct periodic reviews of all incident reports
relating to such interventions 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 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 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 interventions with such
student shall be responsible to ensure that the student’s IEP and behavioral
intervention plan are being implemented.
The CSE 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 has recommended the use of aversive interventions. Such review shall include the review of
written progress monitoring and incident reports, documentation from
observations of and, as appropriate, interviews with the student in the program
and the concerns of the student’s parent.
A representative of the school district shall observe the student at
least every six months and, as appropriate, interview the student in the program
and communicate regularly with the student’s parent and shall report the results
thereof to the CSE.
(8) Policies and
procedures. Each school that
proposes to use aversive 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. Only those schools with policies and
procedures approved by the Department on or before June 30, 2007 shall be
authorized to use such interventions.
10. Subdivision (a) of section 201.2 of the
Regulations of the Commissioner of Education is amended, effective January 16,
2007, as follows:
(a) Behavioral intervention plan means a
plan that is based on the results of the 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 that include positive behavioral supports and services to address
the behavior.