THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

 

 

TO:

The Honorable the Members of the Board of Regents

EMSC-VESID Committee

FROM:

Rebecca H. Cort 

SUBJECT:

Policy on the use of aversive or noxious stimuli in public and private schools serving students with disabilities

 

DATE:

March 20, 2006

 

STRATEGIC GOAL:

Goals 1 and 2

 

AUTHORIZATION(S):

 

 

 

Executive Summary

 

Issue for Discussion

 

          Should the Regents adopt a new policy that prohibits or limits the use of certain behavioral approaches, including the use of certain aversive or noxious stimuli to reduce or eliminate maladaptive behaviors of students?

 

Proposed Handling

 

          Discussion

 

Procedural History

 

          This is the first time this issue has been raised with the Board of Regents.

 

Background Information

 

Currently, neither Education Law nor Commissionerís Regulations prohibit the use of aversive behavioral interventions in school programs.  Several recent events and information have heightened our concerns on this issue and have led us to bring this issue to the attention of the Board of Regents at this time.  These include changes to federal law, the enactment of Billyís Law and a proposed Senate bill that would prohibit the use of aversives in certain school programs, lack of a clear policy on this issue as we monitor private schools serving students with disabilities and the most recent news events around the use of aversive interventions such as shock treatment in an out-of-State school approved for the placement of New York State students.

 

Recommendation

 

          The Board of Regents should discuss and make recommendations for specific actions regarding a behavioral intervention policy, including recommendations to pursue possible legislative and/or regulatory action. 

 

Timetable for Implementation

 

          If the Regents decide to adopt a policy, changes in State law or Commissioner's Regulations will be needed.  Staff will proceed to collect research and other information on this issue including other statutory or regulatory remedies for further discussion at your EMSC-VESID Committee meeting in April or May.

 

Attachment

 


The Use of Aversive or Noxious Stimuli

in Public and Private Schools Serving Students with Disabilities

 

Currently, neither Education Law nor Commissionerís Regulations prohibit the use of aversive behavioral interventions in school programs.  Several recent events and information have heightened our concerns on this issue and have led us to bring this issue to the attention of the Board of Regents at this time.  These include changes to federal law, the enactment of Billyís Law and a proposed Senate bill that would prohibit the use of aversives in certain school programs, lack of a clear policy on this issue as we monitor private schools serving students with disabilities and the most recent news events around the use of aversive interventions such as shock treatment in an out-of-State school approved for the placement of New York State students.

 

       In 1997, the Individuals with Disabilities Education Act (IDEA) was amended to explicitly require the use of positive behavioral supports and services for students with disabilities.  IDEA 2004 strengthened these requirements.  Other states, such as California, have enacted or are proposing legislation banning the use of aversives in consideration of IDEA mandates. 

 

       In 2006, the NYS legislature passed Billyís Law (Chapter 392 of the Laws of 2005).  This law established an interagency committee, including the Department, to provide direction and guidance regarding the placement of children in out-of-State facilities.  There is general concern and consensus among these interagency partners that the use of aversives for any NYS student must be addressed.  This is evidenced by the activities of the Committee to thoroughly review the issue of the use of aversives in programs serving children and its involvement in the review of legislation recently introduced by Senator Martin Golden (Senate Bill 6876) intended to prohibit the use of aversives in programs serving children under the auspices of the State agencies involved in the interagency committee. 

 

       Due to the lack of available in-state programs at the time of referral of the student for placement, the number of students with disabilities placed in out-of-State schools has increased significantly, particularly through emergency interim placements.  VESID has increased its frequency of monitoring private schools approved for the placement of students with disabilities and continues its efforts to develop in-state programs for NYS students.  However, the sheer number of schools in other states where NYS students are placed makes it difficult to provide effective oversight on issues such as behavioral interventions in the absence of a standard policy.  We have received parent complaints regarding the behavioral interventions used with students, but we lack clear authority to make specific findings in the absence of a State standard based in statute or regulation on the use of certain behavioral interventions.

 

       Increasingly, school programs are using behavioral therapies, particularly for young students with autism.  Such programs can be provided in preschool programs and in the preschool studentís home.  The oversight and supervision of such behavioral approaches and the lack of a clear standard on acceptable and unacceptable forms of behavioral interventions causes great concern around our authority and ability to protect the health and safety of our most vulnerable population of students. 

 

       The Judge Rotenberg Center (JRC) in Massachusetts (formerly known as Behavior Research Institute (BRI)), which is approved by New York State for the placement of students with disabilities, applies aversive behavioral interventions with its students. In the mid 1980ís, NYSí attempts to disallow school district contacts with BRI were denied by the Court.  Massachusetts made attempts beginning in 1985 and again in the 1990s to close BRI, which resulted in a Massachusetts Court Settlement Agreement that allowed the school to use aversives, but only if each student undergoes a Court substituted judgment hearing with review and approval of a Human Rights Committee.  Parents must consent to the treatment and the Committee on Special Education must have recommended this level of behavioral intervention on the studentís Individualized Education Program (IEP).

 

       It was our belief that the use of extreme forms of aversive intervention such as the administration of electric shock at JRC was primarily limited to the most significantly cognitively impaired students who were engaged in severe self-destructive and/or aggressive behaviors.  A recent request for data from the school on its use of aversives revealed that, in fact, electric shock has been approved for use with significantly increased frequency (for 77 of 151 NYS students).   The majority of these children are higher functioning, including those with emotional disabilities, attention deficit hyperactive disorder, oppositional defiant disorders, obsessive-compulsive disorders, conduct disorders and with behavior problems such as truancy, aggression, depression, suicidal actions and fire setting. 

 

Issues to Consider

 

In discussing and developing a policy on this issue, the Board of Regents should consider the following:

 

       A studentís right to a free appropriate public education must be ensured.  States and local educational agencies must ensure a full continuum of services and have programs available to meet the needs of individual students with varying and complex needs.

 

       All NYS children deserve to be treated with respect and dignity in the course of their receipt of appropriate education programs and services.

 

       The use of aversive therapy is a very controversial issue that is polarizing parents and professionals. 

 

       Although there is extensive research and disagreement as to the efficacy of use of aversives as a behavior management approach to effectively reduce or eliminate maladaptive behaviors on more than a temporary basis, it is important that we are knowledgeable about the most current research prior to establishing policy.

 

       There is general concern among NYS agencies with responsibility for the care and treatment of children surrounding the use of aversive approaches.  As Regents policy is developed, we must consider any potential conflict with the policies and procedures relating to aversive treatments of other NYS agencies that operate educational programs or license the residential components of State Education Department approved schools (e.g., Office of Mental Heath, Office of Mental Retardation and Developmental Disabilities).

 

       Any policy regarding the use of aversive therapies must be uniformly applied to all schools where NYS students attend, including public schools, boards of cooperative educational services (BOCES), approved preschool programs, approved private schools, including day and residential schools, Charter Schools, State-operated and State-supported schools.

 

       The development of a Regents policy on this issue should include a process that:

 

o      engages a broad stakeholder discussion on this issue, including specific public and professional comment on the definition of the term ďaversive or noxious stimuli.Ē  In order to comply with IDEA, we must conduct public hearings for any changes to proposed rules relating to the education of students with disabilities;

 

o      provides for an in-depth discussion with other State agencies on the relationship of the Regents policy with other agency policies and the potential impact on programs that have joint oversight; and

 

o      ensures an extensive review of research including consideration of the experiences of other states that have enacted statute and/or regulations restricting the use of aversives.

 

The draft language attached below is provided to stimulate a discussion of the issue.   This language or the ideas reflected in this language have not yet been shared with stakeholders or other State agencies.  This language would:

 

       establish a Regents rule that (1) prohibits all public schools, including Charter Schools, boards of cooperative educational services (BOCES), Special Act School Districts as well as all preschool programs, approved private schools (day and residential, in-state and out-of-State), State-supported schools and State-operated schools from using aversive or noxious stimuli to reduce or eliminate the maladaptive behaviors of NYS students and (2) defines the term ďaversive or noxious stimuli;Ē

 

       add program standards for education programs for students and preschools students with disabilities being educated in private schools and State-operated or State-supported schools that prohibits the use of corporal punishment and the use of aversive or noxious stimuli;

 

       establish that a non-public school that uses corporal punishment or aversive or noxious stimuli shall not be eligible for State approval; and

 

       include the use of corporal punishment and/or use of aversive or noxious stimuli as a condition that could lead to the removal of a non-public school from the approved list.

 

DRAFT POLICY LANGUAGE FOR GENERAL DISCUSSION PURPOSES

 

Chapter 1 of the Rules of the Board of Regents

Section 19.5   Prohibition of corporal punishment and certain behavioral interventions

 

(a)      No teacher, administrator, officer, employee or agent of a school district in this State, or of a board of cooperative educational services, Charter School, approved preschool program, approved private school, State-operated or State-supported school in this State or an approved out-of-State day or residential school, shall use corporal punishment against a pupil and shall not employ the use of aversive or noxious stimuli to reduce or eliminate maladaptive behaviors.

 

(b)      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) of this section.

 

(c)      As used in this section, aversive or noxious stimuli means:

                    1.       noxious, painful, intrusive stimuli or activities intended to induce pain such as hitting, slapping, pinching, kicking, hurling, strangling, shoving, or other similar stimulus; any form of noxious, painful or intrusive spray or inhalant; electric shock; water spray to the face; pinches and deep muscle squeezes;

                    2.       withholding sleep, shelter, bedding, bathroom facilities, clothing, food or drink or essential nutrition or hydration as part of mealtimes, bathroom facilities, visitation or communication with family;

                    3.       the use of chemical restraints instead of positive programs or medical treatments; or

                    4.       the placement of a child unsupervised or unobserved in a room from which the student cannot exit without assistance.

         

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; deep muscle massage or brief physical prompts or guidance to interrupt or prevent a specific behavior.

 

(d)      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.     to protect oneself from physical injury;

2.     to protect another pupil or teacher or any person from physical injury;

3.     to protect the property of the school district or others; or

4.     to restrain or remove a pupil whose behavior is interfering with the orderly exercise and performance of school district functions, powers and duties, if that pupil has refused to comply with a request to refrain from further disruptive acts. 

 

 

Section 200.7 of the Regulations of the Commissioner of Education relating to Program Standards for Education Programs for Students and Preschool Students with Disabilities being Educated in Private Schools and State-Operated or State-Supported Schools.

 

Add:

 

A school that uses corporal punishment or aversive or noxious stimuli to reduce or eliminate maladaptive behaviors, as such terms are defined in section 19.5 of the Rules of the Board of Regents, shall not be eligible for approval.

 

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, including evidence that a private school is using aversive or noxious stimuli, as defined in section 19.5 of the Rules of the Board of Regents, to reduce or eliminate maladaptive behaviors of students, and listing the dangerous conditions at the school. 

 

An approved private school, a State-operated school, or a State-supported school is prohibited from using corporal punishment or aversive or noxious stimuli to reduce or eliminate maladaptive behaviors of students, as such terms are defined in section 19.5 of the Rules of the Board of Regents