PROPOSED AMENDMENT OF
SECTION 19.5 OF THE RULES OF THE BOARD OF REGENTS AND SECTIONS 200.1, 200.4,
200.7 AND 201.2 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 INTERVENTIONS
Since publication of a Notice of Revised Rule Making in the State
Register on November 15, 2006, the State Education Department received the
following new comments that were not otherwise addressed in the Assessment of
Public Comment resulting from the Notice of Proposed Rule Making published on
July 12, 2006.
Section 19.5(b) –
Definition of Aversive Interventions
COMMENT:
Clarify if the phrase
“intrusive stimuli or activities” refers to how much the adult must “physically”
intervene; delete "intrusive stimuli or activities" as this is impossible to adequately
define.
DEPARTMENT
RESPONSE:
The word “intrusive” in this context is intended to mean having the
effect of causing pain or discomfort to the student.
COMMENT:
The new language regarding contingent food programs makes it more
difficult to interpret; the delay of food can be an important practice in
successfully treating children with significant feeding problems; delaying food
temporarily (within a treatment session) then providing preferred food
contingent upon eating nonpreferred food can be effective; revise the regulation
to state that contingent food programs that include the denial or delay of the
provision of meals “as a punisher” or altering staple food or drink is
prohibited.
DEPARTMENT
RESPONSE:
No further revision to the regulation is necessary to address these
comments since delaying food to address a medical feeding problem would not fall
within the definition of an aversive intervention intended to inflict pain or
discomfort to eliminate or reduce a maladaptive behavior.
COMMENT:
Clarify if physical restraint is a type of movement limitation; and for
prohibition purposes, redefine movement limitation to include mechanical, prone,
and other more intrusive restraint methods. Basket holds and brief physical
restrictions of movement (e.g., holding a child’s hands at their side) should be
excluded from the definition of an aversive intervention.
DEPARTMENT
RESPONSE:
Physical restraint is a type of movement limitation. Physical, mechanical or other types of
movement limitation used on a planned basis to provide a consequence to a
student’s behavior and that are intended to cause pain or discomfort to the
student for the purpose of reducing a maladaptive behavior fall within the
definition of an aversive intervention.
Brief physical prompts to interrupt or prevent a specific behavior and/or
that are medically necessary for the treatment or protection of the student are
not considered aversive interventions.
COMMENT:
Clarify if the new prohibition includes the use of electric skin
shock.
DEPARTMENT
RESPONSE:
Electric skin shock would be considered a prohibited aversive
intervention except through a child-specific exception pursuant to section
200.22(e) of the proposed regulation.
COMMENT:
The phrase “other stimuli
or actions similar to” the interventions identified in section 19.5(b)(2) is
overly broad and can cause confusion as to the aversive interventions that are
allowed.
DEPARTMENT
RESPONSE:
The phrase “other stimuli
or actions similar to” is necessary to provide authority to the Department to
determine if interventions other than those specifically listed would be
considered aversive.
COMMENT:
Section
200.7(a)(3)(iv) should start with a provision that recognizes that removal from
the approved list should not occur if a school has obtained court authorization
for the use of aversives and be revised to read, “If a school has not obtained
court authorization for the use of aversive interventions in a student’s
treatment plan, schools may be removed from the approved list five business
days….”; an exception should be added to section 200.7(b)(8)(i) to allow
aversives procedures that are approved by a court.
DEPARMENT
RESPONSE:
No revision to the proposed rulemaking is necessary since the regulations
establish standards for the use of aversives and do not alter the due process
rights of parties under section 200.5 to seek a hearing, administrative appeal
and court review.
Most
supported the prohibition on the use of
aversive interventions on preschoolers without exception. A few recommended continuation of
exceptions for use of aversives for preschool students: section 200.7(b)(8)(ii) should be deleted to allow
preschools to use aversives to ensure self-abuse can be effectively treated at
the earliest possible age; keep original language that provided a child-specific
exception for preschool and school-age children or restrict the use of the most
extraordinary methods (e.g., shock or mechanical restraint) but allow other
evidence-based methods as eligible for child specific exceptions for preschool
children as well as school-age children.
DEPARTMENT
RESPONSE:
The potential risk of harm, both physically and emotionally, to a
preschool child when a consequence is imposed that is intended to cause pain or
discomfort is greater than for a school age child, given a preschool child’s
physical and developmental levels.
The period of time a preschool child would have had the opportunity to
benefit from a full range of evidence-based positive behavioral interventions is
insufficient to ensure that the full-range of evidence based positive behaviors
interventions have been consistently employed and have failed to result in
sufficient improvement of the child’s behavior. Therefore, the proposed regulations
continue to prohibit the use of aversives by New York State approved preschool
program providers and prohibit a child-specific exception for any New York State
(NYS) preschool child.
COMMENT:
Clarify if a school that did not submit policies and procedures by August
15, 2006 or did not have them approved by June 30, 2007 would be able to make an
application after that date and if schools can no longer apply for
child-specific exceptions after June 30, 2009.
DEPARTMENT
RESPONSE:
The proposed regulations would authorize only those schools that are
notified by the Department by June 30, 2007 that their policies and procedures
on the use of aversive interventions meet the standards of the Regulations of
the Commissioner. No additional
schools may apply to use aversive interventions. Only students with IEPs that, as of June
30, 2009, include a recommendation for aversives may be considered in subsequent
years for a child-specific exception to the prohibition on the use of aversives
after June 30, 2009.
COMMENT:
Add a requirement that the FBA propose a hypothesis as to the function of
a target behavior so that alternative, replacement behaviors can be identified
and taught to the student; require the FBA to provide a baseline of the
replacement behaviors with regard to frequency, duration, intensity, and/or
latency across activities, settings, people and time of
day.
DEPARTMENT RESPONSE:
No revision to the proposed rulemaking is necessary since the FBA is
defined in section 200.1(r) to mean the process of determining why a student
engages in behaviors that impede learning and how the student's behavior relates
to the environment. The FBA must include 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 affective factors) and the formulation of a hypothesis regarding the general
conditions under which a behavior usually occurs and probable consequences that
serve to maintain it. The
Department will consider the second comment in developing nonregulatory guidance
subsequent to the adoption of the proposed regulation.
COMMENT:
While the proposed amendment allows a CSE to consider the development of
a BIP when a student’s behavior impedes his/her learning or that of others,
federal law requires the creation of a BIP under these
circumstances.
DEPARTMENT
RESPONSE:
No changes are necessary since the proposed regulation requires more
specific criteria to be considered than is specified in federal regulation. The proposed regulation states that the
CSE shall consider the development of a BIP when 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;
the student’s behavior places the student or others at risk of harm or injury;
the CSE or CPSE is considering more restrictive programs or placements as a
result of the student’s behavior; and/or as required pursuant to section 201.3
of this Title.
COMMENT:
No FBA or BIP should be allowed to be implemented as a matter of federal
protective law unless and until parents or other lawfully appointed
representatives have fully consented to each and every portion thereof.
DEPARTMENT
RESPONSE:
No revisions are necessary to address this comment since section 200.4 of
the Regulations of the Commissioner requires parental consent for an initial
evaluation and reevaluation, which would include an FBA. The proposed regulation requires parent
consent when the use of aversive interventions is to be part of a student's
IEP. A parent who disagrees with a
recommendation of the CSE may exercise his or her due process rights under
section 200.5 of the Regulations of the Commissioner.
COMMENT:
Each special education child should have
a specific individualized behavioral plan prepared by an applied behavioral
specialist as well as a psychologist; the parents should be involved in the
preparation of a BIP; and require reinforcement schedules to strengthen
alternative behaviors.
DEPARTMENT RESPONSE:
No revisions are necessary to
address these comments since (1) not every student with a disability has
behaviors that interfere with his or her learning or that of others and
therefore not every student with a disability would need a BIP and (2) the need
for a BIP should be discussed at a CSE meeting, to which the student's parents
are members. Other comments will be
considered in developing nonregulatory guidance relating to these
regulations.
COMMENT:
Add more specific requirements related to the
acquisition and maintenance of alternative behaviors that are incompatible with
the target behaviors
DEPARTMENT RESPONSE:
The Department will consider this comment as it develops nonregulatory
guidance subsequent to the adoption of the proposed
amendment.
COMMENT:
DEPARTMENT RESPONSE:
The proposed regulations requires the BIP to identify
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).
COMMENT:
NYSED has proposed significant improvements to ensure there is more
reporting and oversight when using BIPs, time out rooms and emergency
interventions; however, the regulations are still lacking in some reporting
requirements and there is still no oversight by NYSED of any of the provisions;
regulations should require schools to provide parents with quarterly progress
reports, similar to reports on a student’s academic
progress.
The Department will enforce its regulatory standards on behavioral
interventions consistent with State and federal requirements. Parents must be provided with a report
of their child's progress, which should include reports of student progress
toward their annual goals relating to behavior.
COMMENT:
Additional criteria around the use of the time out room should be added;
require specialized training of staff monitoring time out rooms; clarify how a parent would report
inappropriate interventions used with his or her child during time out; require
time out room policies be given to parents with the procedural safeguards notice
when an IEP is implemented; timeout rooms have helped
many students and staff and administrators and professionals dealing with
time-out rooms are all made aware of the rules and consequences; time out rooms
are used to help and not hurt the child.
DEPARTMENT RESPONSE:
Revise the proposed amendment to add: no room used for time out or
seclusion purposes shall have a door with a lock and no device such as a chain
and padlock shall be used at any time to keep the door closed; no furniture or
objects may be used to block the door from the outside; and no person may hold
the door closed from the outside.
DEPARTMENT RESPONSE:
The revised proposed regulation requires that the
time out room shall be unlocked and the door must be able to be opened from the
inside. Since
the blocking of a door with a chain or padlock or furniture would be the same as
locking the door, thereby interfering with opening the door from the inside, no
further revision to the proposed regulation is necessary.
COMMENT:
Require that documentation procedures minimally include a record for each
student showing the date and time of each use, a detailed account of the
incident that led to use of time out room, the amount of time that the student
was in the time out room, and information to monitor the effectiveness of the
use of the time out room to decrease specified behaviors which resulted in the
student being placed in the room.
Establish a maximum limit on the amount of time a child can spend in a
time out room, both consecutively and cumulatively, for any five day
period.
DEPARTMENT RESPONSE:
The revised proposed regulation requires the school policy and procedures
on the use of time out rooms to establish time limitations on the use of time
rooms and to include data collection to monitor the use and effectiveness of the
use of the time out rooms. Such
data collection should appropriately include the information provided in the
above comment.
COMMENT:
Clarify if the use of a time out room is an aversive intervention. If the time out room is not considered
an aversive intervention, the requirements on time out rooms should appear in
another section of the regulations or in a guidance memorandum. NYSED has not provided any
research-validated findings or well-founded psychological, psychiatric or
educational rationale for allowing the use of time out rooms for
punishment.
DEPARTMENT
RESPONSE:
Section 200.22 of the proposed regulation addresses behavioral
interventions in general and does not pertain exclusively to aversive
interventions. The use of time out
rooms is not considered an aversive intervention and may not be used as a
punishing consequence to a student's behavior. The revised proposed regulation
specifically defines a time out room as an area for a student to safely
deescalate, regain control and prepare to meet the expectations to return to his
or her education program.
COMMENT:
Clarify whether sections 200.22(c)(9) and (d)(5) excludes Boards of
Cooperative Educational Services (BOCES) facilities from the time out room and
emergency intervention requirements and, if so, revise the regulations so that
BOCES are not exempt from complying with the minimal standards in this
section.
DEPARTMENT RESPONSE:
Part 116 of the Regulations of the Commissioner of Education governs
education programs and services for children in full-time residential care in
homes or facilities operated or supervised by a State department or political
agency, which would not include a board of education or BOCES program. The exception pertaining to Part 116
programs, therefore, does not pertain to BOCES programs.
COMMENT:
Parents should be notified verbally on the same day and in writing within
24 hours of each incident of placing a student in seclusion.
DEPARTMENT RESPONSE:
The proposed regulation would prohibit the use of a time out room for
seclusion of the student. The
schools policies/procedures on the use of time out rooms must address information to be provided to
parents, which should include a policy on when parents would be notified if
their child was placed in a time out room.
Minimally, whenever a time out room is used as an emergency intervention
pursuant to section 200.22(d),
the parent must be notified of the emergency intervention. It is expected that such notification
would be provided the same day whenever possible.
COMMENT:
NYSED should be required to publish monthly information including the
number of each use of a time out room, and each use of restraints and seclusion,
for each school and BOCES program, and to make such information easily
accessible to parents and the public.
DEPARTMENT RESPONSE:
The proposed regulation prohibits seclusion. The parent of the student would have
access to information on the use of restraints for his/her own child. The proposed regulation requires a
school to maintain documentation on the use of emergency interventions and the
use of time out rooms; such data could be subject to Department review. To require public reporting of such data
would be overly burdensome.
COMMENT:
Clarify what interventions could be considered “emergency” interventions;
require consistent and coordinated standards for physical restraints and
therapeutic crisis interventions when a program is licensed or certified by more
than one agency.
DEPARTMENT RESPONSE:
The proposed regulations were developed in review of the regulations
governing other State agency programs and specifies that, for an education
program operated by another State agency, if a provision of the proposed
regulations 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 the regulations would not apply. NYS agencies are developing
recommendations for coordinated standards for the use of restraints in NYS
treatment programs serving children and youth.
COMMENT:
Revised amendments fail to adequately protect the health and safety of
students exposed to restraint.
DEPARMENT
RESPONSE:
COMMENT:
Clarify how soon after the intervention is employed that parents be
notified; at a minimum schools should be required to attempt to verbally notify
parents of the use of an emergency intervention by the end of the same day the
intervention was used and to send
parents written notification within three calendar days of the intervention used
including, information on the school’s attempt to verbally notify the parent if
the school was unsuccessful in doing so.
DEPARTMENT
RESPONSE:
The proposed regulation requires that parents be notified when emergency
interventions are used with his/her child.
It is expected that such notification would be provided the same day
whenever possible.
COMMENT:
Revise the definition of emergency to mean a situation in which there is
an imminent risk of serious physical injury to the students or others and
require that emergency interventions only be used where there is such an
emergency and alternative procedures and methods not involving the use of
physical force, but which do include the use of research-validated protocols to
defuse behavioral crises, have been attempted, but failed, or cannot reasonably be employed. Require those who use physical
interventions to be trained in research-validated methods of crisis
de-escalation and to hold current certification from the authority or
organization providing the training.
DEPARTMENT
RESPONSE:
The Department interprets the circumstances specified in section
19.5(a)(3) of this Title for which the use of reasonable physical force could be
used to be limited only to those student behaviors that would pose imminent risk
of injury to the student or others. The proposed regulation requires appropriate
training in safe and effective restraint procedures.
Require schools to report to NYSED on a regular basis the number of times
schools emergency interventions are used with students with disabilities; and
require that documentation on the use of emergency interventions include a
“detailed” description of the incident and that parents be notified in writing
within 24 hours, or within 2 hours if any injury has been sustained to the
student or others. The amount of
information required is burdensome to direct care staff that must maintain it;
delete requirements that documentation include the date of birth, setting and
location and information on whether the student has a current behavior
plan. Clarify if the parent must be
notified incident by incident and if a parent can waive this
requirement.
DEPARTMENT
RESPONSE:
COMMENT:
Require the school district to review data to consider the need for a
BIP, or to alter a BIP, within a specific time period (e.g., three days) and/or after a specified number of
emergency interventions for a student when emergency interventions are used; and
require that a BIP be developed in 10 days.
DEPARTMENT RESPONSE:
The revised proposed
regulation prohibits the use of emergency interventions as a substitute for
systematic behavioral interventions that are designed to change, replace, modify
or eliminate a targeted behavior and further require that the CSE consider the
development of a BIP for a student when 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;
the student’s behavior places the student or others at risk of harm or injury;
the CSE or CPSE is considering more restrictive programs or placements as a
result of the student’s behavior; and/or as required pursuant to section 201.3
of this Title (discipline requirements).
It is expected that the CSE would meet to address a student's behaviors
precipitating emergency interventions within a reasonable period of time and
without undue delay.
COMMENT:
Define "appropriate training in safe and effective restraint
procedures."
DEPARTMENT
RESPONSE:
The Department will consider this comment as it develops nonregulatory
guidance subsequent to the adoption of the regulations.
COMMENT:
Clarify if emergency procedures and time out, including environmental
time out, can be used with preschool children.
DEPARTMENT
RESPONSE:
It is unclear what the commenter meant by environmental time out. The regulations pertaining to the use of
time out rooms and emergency procedures would apply to preschool
students.
Section 200.22(e) -
Child-specific exception to use aversive interventions to reduce or modify
student behaviors
COMMENT:
Clarify if section 19.5(e)(2) prohibits the types of aversive
interventions specified or allows, at the discretion of the Commissioner for
such interventions to be used.
Clarify whether the interventions listed in section 19.5(e)(2) are
immediately barred, and if so, what is to happen to those students currently
getting those aversive interventions.
DEPARTMENT
RESPONSE:
The types of aversive interventions specified in section 200.22(e) are
prohibited without exception as of the effective date of the regulations. The phrase "at the discretion of the
commissioner" means that the list of prohibited interventions is not exhaustive
and the Department has the authority to prohibit any intervention it determines
to be similar to those expressly prohibited. Upon adoption of the regulations, the
program providing such interventions must cease their application and a revised
BIP must be developed for the student based on the results of the
FBA.
COMMENT:
The safety and welfare of children in a particular program is at risk if
behavioral skin-shock treatment is not allowed.
DEPARTMENT:
COMMENT:
Permitting aversive
interventions at all for students with disabilities appears to violate 42 USC
section 15009, which prohibits exposing
developmentally disabled students to any greater risk of harm than that
experienced by students in the general population. 42 USC section 15009 does
not allow parents to waive their children’s protections under this statute. Given that NYSED has acknowledged that
aversive interventions do pose a risk of harm, the Board of Regents cannot
permit their use at all without violating 42 USC section 15009. Aversive interventions must be barred,
without exception, effective immediately.
If aversive treatments are needed, they should be handled in the same
way that a school or district would handle a student who needed medication and
accommodations in school, via collaboration between a physician, the student’s
parent(s) and the district.
DEPARTMENT
RESPONSE:
With respect to an alleged violation of 42 USC section 15009, the comment
is speculative in that it raises issues of statutory interpretation that have
not yet been determined by either the Congress, a Federal agency responsible for
oversight, or the Federal judiciary.
The comment provides no citation to any authority specifically
determining that the use of aversives falls within the prohibition in 42 USC
section 15009, but merely presents the opinion of the person providing the
comment.
The proposed regulations
establish a prohibition on the use of aversives, with a child-specific exception
process that must consider the determination of a panel of experts as to the
need to provide a specific intervention targeted to a specific behavior(s) to
safeguard the health and safety of the student and that of others. This child-specific process would be
available for a time-limited period in order to provide a safeguard for students
who are presenting serious self-injurious behaviors and, because of their age,
have not had the opportunity to benefit from other effective nonaversive
interventions. Parents cannot waive
the protections established through these regulations. The child-specific exception process
provides the parent and school district with objective expert opinions as to
whether the student’s behaviors are so severe as to warrant an intervention that
would intentionally cause pain or discomfort to the student. Such a determination requires the
highest level of review, independent of the recommendation of the program
provider.
COMMENT:
Revise the proposed amendment to require the physician to attend the CSE
meeting whenever the CSE is considering the use of aversive interventions; the
CSE should never be permitted to grant a child-specific waiver unless a licensed
physician who has examined the student and who can certify that the proposed
aversive treatment is safe and a licensed psychologist or board certified
licensed psychiatrist has assessed the student and can state that there are no
psychiatric or psychological contraindications to the use of the proposed
aversive treatment. The regulations must adopt, at a minimum, the protections in
42 CFR 483.356-Subparts G and H and 42 USC section 290(ii) and (jj).
DEPARTMENT
RESPONSE:
The school physician is a required member of the CSE if specifically
requested in writing by the parent of the student or by a member of the school
at lease 72 hours prior to the meeting.
The proposed regulations provide that the CSE shall request the
participation of the school physician member in making a determination to
provide a child-specific exception allowing the use of aversive
interventions. Therefore, the
school physician will attend the meeting whenever the use of aversive
interventions is being considered.
The
proposed regulations require the CSE to review the written application for a
child-specific exception, the student's IEP, the student's diagnosis(es), the
student's functional behavioral assessment, any proposed, current and/or prior
behavioral intervention plans, 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.
With respect to the urged adoption of the protections in 42 CFR
483.356-Subparts G and H and 42 USC section 290(ii) and (jj), such provisions
are generally applicable to health care facilities, such as hospitals, nursing
facilities, intermediate care facilities and residential treatment centers. The proposed regulations are applicable
to schools and school programs and it would be inappropriate to apply Federal
standards specifically designed for health facilities to all schools and school
programs. To the extent a
particular school or program would be a health care facility as defined in the
Federal statutes and regulations, such school or program would be subject to
such protections.
COMMENT:
Require that the CSE ensure that a professional with relevant clinical
and behavioral expertise is present at an IEP meeting when considering the use
of aversive interventions.
DEPARTMENT
RESPONSE:
The CSE includes other persons
having knowledge or special expertise regarding the student, including related
services personnel as appropriate, as the school district or the parent(s) shall
designate. It would be appropriate
for such other persons to have behavioral expertise to address a student's need
for aversive interventions.
COMMENT:
Aversives can be life-saving for students for whom positive-only
procedures are insufficiently effective, therefore they should not be banned in
the programs of students who do not already have them in their IEPs, after June
30, 2009; the exception to this
prohibition for students who already have aversives in their IEP improperly
discriminates against students, based on their disability who will need aversive
therapy but will not receive it because it was not in their IEP previously; and
section 200.22 (e) should be omitted.
If an absolute ban is proposed after 2009, maintain the child-specific
exception and review procedures for empirically supported aversive interventions
and support an absolute ban on electric skin shock and mechanical
restraints. Others submitted
comment that all aversive interventions as defined in section 19.5(b) should be
prohibited immediately.
DEPARTMENT
RESPONSE:
The
Department has carefully considered the use of aversive interventions in
relation to its treatment value for students with severe self-injurious
behaviors, its basis in scientific research and its potential effect on a
student’s health and safety, moral and ethical issues; and the Department’s
capacity to ensure the health and safety of students in school programs where
aversive interventions are used.
The Department does not support the use of aversives since even with
these regulatory safeguards, aversive interventions may pose significant health
and safety risks for students with disabilities. However, some parents expressed that
without this intervention, they believe their children’s health and safety are
at risk because of their severe self-injurious behaviors. For this reason, a time limited
child-specific exception process is proposed.
COMMENT:
One commenter submitted its 4th amended Complaint in its
lawsuit against the New York State Education Department as part of its comment
on the proposed regulations.
DEPARTMENT
RESPONSE:
It is not possible for the Department to effectively respond to the
inclusion of the complaint because the commenter merely "incorporates by
reference" the complaint and fails to articulate how specific provisions of the
complaint relate to provisions of the revised rule. In any event, even if a response were
possible, it would be inappropriate for the Department to respond to pending
litigation in this Assessment of Public Comment.
COMMENT:
Many supported the proposed revision that expressly prohibits certain
aversive interventions.
DEPARTMENT
RESPONSE:
Because of the nature of the comment which is supportive of the proposed
regulation, no response is necessary.
COMMENT:
NYSED should prohibit all public schools from using aversive
interventions and allow the use of aversive interventions through the
child-specific exception process to be used only in highly specialized and
restrictive private schools with highly trained staff.
DEPARTMENT
RESPONSE:
The proposed regulation limits the use of aversive interventions only to
those to those programs that receive notification from the Department by June
30, 2007 that their policies, procedures and practices on the use of aversive
interventions have been approved.
To date, no public school programs have submitted their policies and
procedures for Department review.
COMMENT:
Section 200.22(e)(1) should be changed to also allow the use of aversive
interventions for seriously harmful behaviors that threaten the emotional or
education well-being of the student or that of others and for property
destruction.
DEPARTMENT
RESPONSE:
It would be unethical and unsafe to authorize the use of interventions
intended to inflict pain and discomfort on a student for other than
self-injurious and/or aggressive behaviors that imminently threaten the health
and safety of the student or that of others.
COMMENT:
Allow the
use of an “automated aversive conditioning device” to treat only self-injurious
behavior, aggressive and other behaviors that threaten the physical well-being
of the student and only when non-automated aversive conditioning devices have
failed to result in sufficient improvement of the student’s behavior or have
been considered and deemed to be unlikely to result in sufficient improvement of
the student’s behavior; delaying effective treatment may cause the student to
suffer serious physical harm.
DEPARTMENT RESPONSE:
No changes have been made to the proposed amendment since an automated
aversive conditioning device that continues to apply an aversive intervention
such as skin shock to the student until the student ceases a behavior raises
health and safety concerns and therefore is not allowable for any behavior.
COMMENT:
The use of
“the combined simultaneous use of physical or mechanical restraints and the
application of an aversive intervention” should not be banned. The wording
dealing with this issue in section 200.22(e)(2) should be changed to the
following: “No program may use, as a programmed aversive
behavioral intervention, a combination
of physical or mechanical restraint
and another noxious, painful or intrusive stimulus. Nothing in this section shall prohibit
the use of restraint while an aversive is administered where that restraint is
reasonably necessary to protect the safety of the pupil, other pupils, teacher
or any person from physical injury, to protect the property of the school,
school district or others.” A corresponding change should be made to
the wording of section
200.22(f)(2)(ix) so that it conforms to the wording suggested above for this
issue.
DEPARTMENT
RESPONSE:
No revision to the
proposed regulation will be made to address this comment since the combined use
of an aversive intervention while a student is in a restraint is corporal
punishment. The proposed regulation
specifies that 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 and 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.
COMMENT:
The use of
mini-meals to reward student behavior should not be banned by these regulations
provided that there are adequate safeguards, approved by a physician, to insure
proper nutrition and health.
DEPARMENT
RESPONSE:
The proposed regulation prohibits denial or unreasonable delays in
providing regular meals to the student that would result in a student not
receiving adequate nutrition. Where
the use of mini-meals to reward a student would involve unreasonable delays in
providing regular meals or intentionally inflicting a deprived state of hunger
on the part of the student, such intervention would be prohibited. All programs must ensure a student
receives proper nutrition and medical care.
COMMENT:
Require the CSE to reconvene
within 10 business days of receipt of the expert panel’s recommendation to
consider that recommendation;
require the CSE to specify the title and qualifications of the
professional(s) at the school permitted to administer the aversive intervention
on any IEP allowing the use of aversive interventions.
DEPARTMENT
RESPONSE:
While the regulations do not impose a specific time period for the CSE to
meet to consider the child-specific exception determination of the expert panel,
it is expected that the CSE should do so without delay. The proposed regulation has not been
revised to address the comment that the IEP specify the title of the
professional authorized to administer the aversive intervention; however, the
proposed regulation establishes supervision and training requirements for
individuals applying aversive interventions.
COMMENT:
The IEP
should not be required to identify very specific behaviors because these are
always changing and it would be impractical to convene an IEP meeting for each
new behavior that needs to be treated and section 200.22 (e) (9) (i) should be
changed to read: “(i) categories of self-injurious, aggressive and/or other
targeted behavior(s).”
DEPARTMENT
RESPONSE
The Department does not agree with this recommendation. A student's specific behaviors that pose
serious health and safety concerns should be evident and clearly specified on
the student's FBA, IEP and BIP. To
authorize the use of aversive interventions based on categories of behaviors
would be inappropriate and subject to broad interpretation.
COMMENT:
A school system that has placed a child in
a program using aversives should not have to submit an annual application to
NYSED for a child-specific waiver.
DEPARTMENT
RESPONSE:
The Department does not agree with this comment. It is expected that a student's
behaviors would improve through implementation of the student's BIP and that the
continued use of such interventions therefore needs to be reviewed and
reconsidered on a regular basis.
COMMENT:
Establish and secure funding for a process in which all applications for
child-specific exceptions can be thoroughly vetted by a panel of true behavioral
experts from the fields of psychiatry, behavioral psychology and school
psychology.
DEPARTMENT
RESPONSE:
The Department will authorize funds sufficient to consider the total
number of child-specific exception applications submitted.
COMMENT:
Parents and the public have a right to know who is examining all such
applications; the credentials of those doing the examining, and whether any such
persons are operating under unwritten NYSED policy.
DEPARTMENT
RESPONSE:
The names of the individual panel members for each student's application
are provided to the school district that submitted the application. The parent would have access to the
names of the individuals through the school district. The panel makes independent
determinations.
COMMENT:
The CSE should be required to provide written justification for its
decision if it rejects the decision of the three member
panel.
DEPARTMENT RESPONSE:
A CSE must document in its prior written notice to the parent a
description of the factors that the district considered and the reasons why
those options were rejected.
Section 200.22(f)(3) Human Rights Committee
(HRC)
COMMENT:
Require the HRC to review documentation of emergency restraints. Require all quality assurance reviews
submitted to the CSE and placement agency to also be submitted to the HRC to
provide more effective and coordinated monitoring of programs using aversive
interventions.
DEPARTMENT RESPONSE:
This suggested documentation would be appropriate for review by a
HRC. This recommendation will be
considered in the development of nonregulatory guidance subsequent to the
adoption of the proposed amendment.
COMMENT:
Allow a HRC to include either a licensed psychologist with appropriate
credentials in applied behavior analysis or a licensed psychologist and a board
certified behavior analyst. Require
that all HRC members be present for each HRC meeting; authorize the HRC to order
immediate cessation of the use of aversive interventions, restraints and
seclusion where these have been shown to be harmful, ineffective or where the
use of non-aversive positive behavioral interventions appears warranted.
DEPARTMENT RESPONSE:
No
revision has been made to address the first comment since the proposed
regulation requires at least one licensed psychologist with appropriate
credentials in applied behavior analysis to participate in meetings of the
HRC. It would not be appropriate to
authorize a Human Rights Committee to order the immediate cessation to a
student's behavioral intervention program.
However, a recommendation from a Human Rights Committee to disapprove or
discontinue an intervention when such interventions fail to provide sufficient
protection
of legal and human rights of individuals must be addressed by the program. School personnel invited to HRC meetings
should also consider such recommendations when reviewing and revising a
student’s IEP.
Section 200.22(f)(4) –
Supervision and training requirements
COMMENT:
The requirement that aversive interventions must 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” makes it
impossible to use aversives;
behavior modification treatment with supplemental aversives is only
effective to treat severe behavior disorders when it is applied on a consistent
basis 24 hours per day seven days per week and it would be impossible for any
program to insure that there will be a licensed professional or certified
special education teacher with the student at all times on a 24 hours per day,
seven days per week basis because it would likely be too costly for any school
to implement and would do nothing to add to the effectiveness or safety of
aversives. The requirement should
be revised so that it reads as follows: “Aversive interventions shall be
administered under the supervision of appropriately trained clinicians.” Require that these
individuals be trained in health and psychiatric/psychological indicators of
medical crisis or psychiatric/psychological trauma. Only allow a clinician employed by a
school to administer an aversive intervention. Do not allow paraprofessionals or
non-treatment personnel to administer aversive interventions.
DEPARTMENT RESPONSE:
The
application of aversive interventions in a student's residence pursuant to an
IEP must be subject to the same high standards of oversight and supervision that
we would require for the school day. Therefore, if an agency applies the
use of aversive interventions in a student's residence pursuant to the IEP, it
is appropriate that the agency ensure that a licensed professional or
appropriately certified special education teacher provides direct supervision
and observation of such staff. To address the comment that such a
professional would need to be available for each student, video monitoring of
such interventions by appropriately licensed staff may be one means to provide
such supervision and observation.
The regulations require
training of any individual providing aversive interventions be occur on a
regular, and at least annual basis, which shall include, but is not limited to,
training on safe and therapeutic emergency physical restraint interventions;
data collection of the frequency, duration and latency of behaviors;
identification of antecedent behaviors
and reinforcing consequences of the behavior; approaches to teach alternative
skills or behaviors including functional communication training; assessment of
student preferences for reinforcement; 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; privacy rights of students; and
documentation and reporting of incidents, including emergency restraints and
injuries. All staff must be aware
of the symptoms that a student may be having collateral effects of aversive
interventions so that such information can be immediately reported to and
addressed by administrative and medical/psychological and/or psychiatric or
other appropriately qualified personnel.
Section 200.22(f)(7) – Progress
monitoring
COMMENT:
Revise the regulation to add that if the
school district or IEP team does not fulfill their obligations under section
200.22(f)(7)(ii), that this would not
adversely affect the approval status of the school.
DEPARTMENT
RESPONSE:
It is unclear what the writer intended by this comment. A program that uses aversive
interventions when such a recommendation is not on a student’s IEP would be a
violation of the Commissioner’s Regulations and would subject the school to the
enforcement actions pursuant to section 200.7 of the Commissioner's
Regulations.
COMMENT:
Require CSEs to conduct monthly face-to-face interviews with all children
who are subject to the use of aversives, restraints and seclusion; require CSEs
to secure monthly input from these children’s parents regarding the use, or
potential abuse, of such behavior control modalities.
DEPARTMENT
RESPONSE:
It
would be expected that the school district representative will interview every
student, except where the student cannot participate in an interview because of
his or her communication abilities.
The regulations establish a minimum requirement for a site visit and
interview/observation of the student, but the school district may conduct such
observations/interviews as frequently as necessary to ensure that the student’s
IEP and BIP are being appropriately implemented. The school district must also review the
quarterly reports submitted to the district by the program providing the
aversive intervention, which must include incident reports and 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.
Other
comments
COMMENT:
Require that copies of all regulations which authorize the use of
aversives, restraints, time out/seclusion rooms and emergency measures on
students with disabilities be given to parents and to students upon whom such
aversive interventions may be carried out at least once a school year, and at
least 30 calendar days prior to any meeting to develop or revise a student’s
IEP; where students cannot read or be assumed to be able to comprehend the full
import of the regulations, such information should be provided to the child and
at the same time explained to them in terms and language which they can
understand.
DEPARTMENT
RESPONSE:
The parent must be fully informed about the recommendation to use
aversive interventions. Prior
written notice must be given to the parent prior to or at the time parent
consent is requested. The
proposed regulation requires a parent to be given a copy of the school’s
policies and procedures on the use of aversive interventions. COMMENT:
The Department should conduct further research and consultations with
experts prior to adoption of these
regulations and focus its efforts to ensure that students with disabilities who
have behavioral problems receive the programs, services and supports they need
and if such supports are provided there will be no need for behavioral
techniques that endanger the safety of children.
DEPARTMENT
RESPONSE:
The Department conducted a review of the research and consulted with
experts prior to proposing the adoption of these regulations. The Department will develop a proposal
for regional centers to provide short-term intensive evaluation and behavioral
intervention placements for students exhibiting severe behavior disorders to
receive a comprehensive FBA, and development and implementation of a BIP to
significantly reduce problem behaviors, and transition support to return
students to prior school placements or other less restrictive
placements.
COMMENT:
The best way to discipline children with autism is to give them an
environmentally friendly place to be educated and to help them not need aversive
interventions by keeping an open mind to associated issues such as environmental
causes, dietary needs and allowing non FDA approved homeopathic treatments to be
given by school personnel with a doctor’s prescription.
DEPARTMENT
RESPONSE:
Environmental and medical factors contributing to a student’s behaviors
should be considered in the FBA and BIP developed consistent with these
regulations. The use of homeopathic
treatments is beyond the scope of this rulemaking.
COMMENT:
Additional funds should be provided to NYSED to "police" the use of
aversive interventions and increased authority should be provided to NYSED to
impose consequences on institutions in violation of the
regulations.
DEPARTMENT:
The proposed regulations establish standards for behavioral interventions
against which the Department will monitor all schools. Proposed amendments to section 200.7
would establish increased authority to monitor and enforce these standards with
approved private schools.