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

 

 

TO:

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:

May 1, 2006

 

STRATEGIC GOAL:

Goals 1 and 2

 

AUTHORIZATION(S):

 

 

 

Executive Summary

 

 

Issue for Discussion

 

          Should the Regents adopt emergency regulations to prohibit or limit 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 issue was first discussed at the March 2006 EMSC/VESID Committee Meeting. 

 

Background Information

 

Currently, neither Education Law nor Commissionerís Regulations prohibit the use of aversive behavioral interventions in school programs, although the Rules of the Board of Regents prohibit corporal punishment.  Several recent events and information have heightened the Departmentís concerns on this issue and have led us to bring this issue to the attention of the Board of Regents at this time.  These events 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. 

There is currently a lack of a clear policy and no standards or guidance on this issue at a time when we are assessing the extent of the use of aversive interventions at public and private school programs.  We believe that greater guidance and oversight is necessary to ensure the availability of professional advice to districts and parents when making the difficult decision as to whether all possible alternatives to aversive interventions have been considered and, where aversive interventions are determined to be absolutely necessary, on how to minimize their intensity and duration. 

 

Recommendation

 

          It is recommended that the Board of Regents discuss and provide direction regarding emergency regulations to establish:

 

1.     general rules for behavioral interventions, including a prohibition on the use of aversive or noxious stimuli as a consequence for behaviors;

 

2.     a process for exceptions to the prohibition on the use of aversive behavioral interventions on a child-specific basis; and

 

3.     standards for programs using aversive interventions, as authorized through the child-specific waiver process.

 

These regulations would require that school districts seek the advice of a panel of experts, comprised of a minimum of three professionals with appropriate clinical and behavioral expertise, prior to considering whether a child-specific exception to use aversive behavioral interventions should be permitted; establish standards for the use of aversive behavioral interventions when provided through a child-specific exception; and require the Department to be fully informed when any public or private school program includes aversive interventions as a means of addressing student behaviors.

 

Timetable for Implementation

 

          The Board will discuss the regulations in May and be asked to act on proposed emergency regulations at the June Regents meeting.

 

Attachment


The Use of Aversive or Noxious Stimuli

in Public and Private Schools Serving Students with Disabilities

 

At the March 2006 Regents meeting, the Board reviewed issues to consider in discussing and developing a policy on the use of aversive and noxious stimuli.  These included the following:

 

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

 

       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.

 

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

 

       It is important that we are knowledgeable about the most current research prior to establishing policy on the efficacy and research-based standards for the use of aversive interventions as a behavior management approach to effectively reduce or eliminate maladaptive behaviors on more than a temporary basis.

 

       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 (SED) approved schools (e.g., Office of Mental Heath (OMH), Office of Mental Retardation and Developmental Disabilities (OMRDD)).

 

       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, and State-operated and State-supported schools.

 

What are the compelling factors for a Board of Regents policy on the use of behavioral interventions?

 

       The Individuals with Disabilities Education Act (IDEA) requires the individualized education programs (IEPs) of students with disabilities to include positive behavioral supports and services and functional behavioral assessments and behavioral intervention programs for students with behaviors which impede learning.

 

       The use of aversive behavioral approaches is the most extreme and intrusive intervention that could be used in educational programs.  The unregulated use of such interventions has potential for compromising the health and safety and the physical and psychological well being of students. 

 

       Absent regulatory parameters, the current practice on the use of aversive behavioral interventions affecting NYS students includes a variety of methodologies that are unrestricted and are based on individual agency or practitioner practices and not necessarily based on, nor implemented consistent with, acceptable research-based standards.  Currently, aversive interventions are used in a wide range of varying circumstances.

 

       SED establishes requirements for the educational environment conducive to learning, appropriate provision of services including such areas as instructional class sizes based on the intensity of the studentsí needs, and grouping based on educational need.  It is inconsistent that we do not regulate behavioral interventions, which have the potential to significantly impact the health and safety of our students.

 

       Regulations in this area will strengthen SEDís authority to ensure appropriate provision of services consistent with peer-reviewed research practices and to protect the health and safety of NYS students consistent with our oversight and supervision responsibilities.

 

       The Board of Regents should identify its direction on this issue to ensure that any standards established in State law or through activities of the out-of-state Placement Committee are developed in consideration and are consistent with the policy direction of the Board of Regents.  

 

Other Findings to Consider

 

Prevalence in the use of aversive or noxious stimuli in public and in-state and out-of-state approved private schools serving NYS students with disabilities

 

       The Office of Vocational and Educational Services for Individuals with Disabilities (VESID) surveyed all public and approved private schools, both in-state and out-of-state, serving NYS students requesting a response as to whether the school uses or has a policy that allows for the use any of the aversive or noxious stimuli as such term was described in the March 2006 Regents report.  To date, all NYS public schools that have responded have indicated that they do not directly use such interventions.  However, public school districts contract for aversive interventions when they place students in certain approved private school programs, including certain preschool programs. 

 

       We are aware of at least three approved private school programs that do use some forms of aversive interventions, two of which are preschool programs and one is an out-of-state residential school.  There may be additional schools that use such interventions, as we have not yet heard from all the private schools, including all the in-state preschool programs and a number of out of state residential programs.

 

       The identified preschool programs are known to use over correction, noxious sprays, odors and/or tastes as consequences for inappropriate behaviors. 

 

       The policy of the residential school identifies aversive interventions used as consequences for inappropriate behaviors to include but not be limited to:

 

o      Manual and mechanical movement limitation (e.g., ďleg, waist or crossover restraints, an arm-free or four-point chair, four-point restraint boards, arm splints, arm tubes, helmet or visual screen goggles; specially designed helmets with Plexiglas or grid-type face guards and/or mechanisms which prevent removal).

 

o      Contingent food programs based on a diet of ďpreferred staple foodsĒ at a targeted number of calories per day with non-preferred staple food (bland food consisting of mashed potatoes, chicken and spinach garnished with liver powder) used as a consequence of negative behaviors.

 

o      Electrical stimulation through a Graduated Electronic Decelerator or ďGEDĒ which is manufactured by the Judge Rotenberg Educational Center (JRC). The GED has adjustable intensities and remote distanced electrodes (two electrodes mounted up to six inches apart to ďincrease the GEDís therapeutic valueĒ).

 

       The recommendations to use aversive interventions were primarily initiated at the request of agencies serving the students in the first instance and were not the determinate factor for a Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE) to pursue a particular private school program for a student.  In some cases, the IEPs of students did not include CSE or CPSE recommendations for aversive interventions.

 

Experiences of other states with laws and regulations addressing the use of aversive or noxious stimuli in school programs

 

       We have identified eleven states that have statutory and/or regulatory limitations on behavioral interventions, and six that specifically prohibit the use of aversive interventions.  States with prohibitions on the use of aversive or noxious interventions have established a specific definition of the term ďaversiveĒ either in law or regulations.  Most state prohibitions on the use of aversive interventions provide for a process for individual exceptions under certain circumstances. 

 

       California has the longest history of such a statute (ďHughes ActĒ) and regulations, adopted in the early 1990s as a result of the death of a child stemming from a form of restraint. Californiaís Education statute and regulations prohibit the use of procedures that cause pain or trauma to eliminate maladaptive behaviors.  California law includes a child-specific waiver provision through which exceptions to state statute can be approved on a child-specific basis by a Waiver Board appointed by the Governor.  Since the law went into effect, the Waiver Board reviewed only two requests for child specific waivers on the use of aversive interventions.

 

       We have identified three states, including New York, with pending legislation that would prohibit aversive interventions.  At the federal level, there is a bill in discussion draft form that would amend the Public Health Service Act to require annual reports from residential treatment facilities that receive funds under the Medicaid program with respect to the use of restraint and seclusion procedures and the use of electric shock.

 

Policies of other NYS agencies

 

       Representatives from the State agencies represented on the NYS Out-of-State Placement Committee established by Chapter 392 of the Laws of 2005 (ďBillyís LawĒ) are discussing a standard policy on the use of behavioral interventions for NYS children placed in congregate care facilities. 

 

       The 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 SED approved schools (e.g., the Office of Children and Family Services, OMH and OMRDD) must be considered in the development of Regents policy.  OMRDD, for example, has draft regulations on the use of aversive interventions in limited circumstances that would require several layers of clinical review, including a review by the Commissioner, prior to such use.   Programs operated by other NYS agencies (e.g., education programs in State-operated psychiatric centers or developmental centers) should be governed by the rules of the State agencies operating those education programs.

 

Building in-state capacity to serve NYS students with disabilities

 

SED has taken significant steps to increase the capacity, availability and appropriateness of in-state programs to serve NYS students with disabilities. 

 

       Eleven agencies have submitted letters of intent to develop in-state residential programs for high need students with disabilities.

 

       A new Residential Capacity Notification System has been implemented so that school districts can readily access in-state vacancy information prior to referring students to programs in other states.

 

VESID is exploring a new model of short-term educational placements where students can receive intensive research-based behavioral and educational interventions designed and implemented to modify behaviors so that children can benefit from other day or residential programs.  We are researching the effectiveness and possible replications of such programs as used in other states (e.g., the Kennedy Krieger Institute in Maryland).

 

Unsolicited letters and public comment

 

SED, individual members of the Board of Regents and Legislators have received numerous unsolicited letters and telephone calls relating to the issue of the use of aversive interventions.  Some of the letters are from parents of students or adults attending JRC supporting continued approval of this school for NYS students.  Other letters have been from professionals, the majority of which have expressed concern and opposition for the use of aversive interventions.  Copies of these letters are available for review by the Regents upon request to the Secretary to the Board of Regents.

 

Positive Behavioral Interventions

 

       Most of the research in the past decade has focused on positive behavioral interventions and it is well documented in the scientific literature that positive behavioral interventions have been effective in addressing behaviors, including self-abusive behaviors.  Long-term studies show that when positive interventions are employed, the rate of maintaining positive behaviors is sustained far more effectively than in cases where negative consequences or punishment are used. 

 

       Many of the older individuals from NYS currently served by JRC and for whom aversive interventions are currently being used did not have the opportunity to benefit from programs using peer-reviewed research on positive behavioral interventions that has emerged over the past decade.

 

       We were unable to identify any peer-reviewed research which supports the interventions as used at JRC, including the use of GED on the population of students and at the intensities, frequency, circumstances, types of behaviors and duration (in some cases for more than three years) for which they are used at JRC. 

 

Recommendations

 

It is recommended that the Board of Regents discuss and provide direction regarding emergency regulations to establish:

 

1.     general rules for behavioral interventions, including a prohibition on the use of aversive or noxious stimuli as a consequence for behaviors;

 

2.     a process for exceptions to the prohibition on the use of aversive behavioral interventions on a child-specific basis; and

 

3.     standards for programs using aversive interventions, as authorized through the child-specific waiver process.

 

The proposed regulations would be developed in consultation with other State agencies serving children and including representatives of agencies represented on the Out-of-State Placement Committee.

 

General rules for behavioral interventions

 

       Prohibit a teacher, administrator, officer, employee or agent of a school district in this State, or of a BOCES, 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, from using aversive or noxious stimuli to reduce or eliminate maladaptive behaviors.  Provide an exception for education programs operated pursuant to section 112 of the Education Law (e.g., OMH- and OMRDD-operated education programs).

 

       Establish guidelines on the use of positive behavioral interventions, including regulations related to the development and use of functional behavioral assessments, the development, implementation, modification and monitoring of behavioral intervention plans, the role of the CSE/CPSE and required documentation on the IEP.

 

       Define emergency interventions, including the use of restraints, and establish rules on the use of restraints, including staff development, monitoring and reporting. 

 

Exceptions on a child-specific basis

 

       In the event a CSE or CPSE determines that a student may require the use of aversive behavioral interventions in order to provide a student with a free appropriate public education:

 

o      Provide a process by which a school district could submit to SED a request for a time-limited child-specific exception on the prohibition of the use of aversive behavioral interventions.  This exception process would ensure that the prohibition on the use of such interventions does not abrogate any right of the student provided in IDEA.

 

o      Establish the conditions upon which such waivers could be granted by the Commissioner based on a recommendation of a review board of experts.

 

o      Ensure that the school district submit periodic reports of the studentís behavioral intervention program as authorized through the waiver process, which must include reports of the studentís progress and the recommendations and results to fade the use of such interventions.

 

o      Ensure that aversive interventions are provided only with the informed written consent of the parent; that parents may withdraw their consent for the use of such interventions at any time; and that other procedures established to authorize the use of such interventions do not abrogate the rights of the parent or guardian regarding authorization and consent. 

 

o      Ensure that representatives of the school district periodically observe and regularly review the application of such interventions, consistent with recommendations documented on the studentís IEP and behavioral intervention plan approved by the CSE or CPSE.

 

 

 

 

Standards for programs using aversive interventions

 

       Establish standards for programs using aversive interventions as allowed through the child-specific waiver process, including but not limited to regulations that would ensure:

 

o      Aversive behavioral intervention procedures shall not be used in the absence of other therapies, including verbal or other counseling therapies and functional communication training.

 

o      Regular and frequent monitoring and reporting to the CSE or CPSE and to the child-specific waiver review panel.

 

o      Aversive interventions are monitored and administered only by appropriately qualified personnel.

 

o      Aversive interventions are administered in a manner that protects the privacy, human dignity and rights of students.

 

       Require that a behavioral intervention plan that includes aversive interventions be implemented consistent with peer-reviewed research based practices.

 

       Require any school that uses aversive interventions to submit its behavioral intervention policies and procedures, and any modifications of such policies and procedures, for prior approval by SED to ensure such policies are consistent with standards and peer reviewed research-based practices.


Summary of Draft Regulations on Behavioral Interventions

 

The attached draft proposed regulations would establish:

  1. general rules for behavioral interventions, including a prohibition on the use of aversive or noxious stimuli as a consequence for behaviors;
  2. a process for exceptions to the prohibition on the use of aversive behavioral interventions on a child-specific basis; and
  3. standards for programs using aversive interventions, as authorized through the child-specific waiver process.

 

Following is a summary of these draft proposed regulations.

 

Section 19.5 of Chapter 1 of the Rules of the Board of Regents would be amended to:

       extend the prohibition on the use of corporal punishment to registered nonpublic nursery, kindergarten, elementary or secondary schools.

       add a prohibition on the use of aversive behavioral interventions, except as provided through a child-specific exception process established in a new proposed section 200.22 of the Commissioner's Regulations.

       define the term "aversive behavioral interventions."

 

Section 200.1 of the Commissioner's Regulations would be amended to:

       add a definition of the term "aversive behavioral interventions."

       add a definition of the term "behavioral intervention plan."

 

Section 200.4 of the Commissioner's Regulations would be amended to:

       add a requirement that the committee on special education (CSE) or committee on preschool special education (CPSE) consider behavioral interventions that are consistent with the new proposed regulations on program standards for behavioral interventions.

 

Section 200.7 of the Commissioner's Regulations relating to approval and standards for private schools and State-operated and State-supported schools would be amended to:

       require approval of the school's policies and procedures for behavioral interventions when a private school applying for approval proposes to use aversive behavioral interventions.

       indicate that a school may be removed from the approved list for providing aversive behavioral interventions without a child-specific exception or in a manner inconsistent with the Department's programs standards for such use.

       prohibit the use of aversive behavioral interventions for students without a child-specific exception.

       for currently approved schools that use or propose to use aversive behavioral interventions, require submission of the school's policies and procedures for aversive behavioral interventions to the Department by August 15, 2006 and establish consequences for the failure to comply with this requirement.

 

A new section 22 would be added to Part 200 of the Commissioner's Regulations regarding program standards for behavioral interventions relating to:

       the development of functional behavioral assessments.

       the development of behavioral intervention plans.

       standards for the use of time out rooms.

       standards for the emergency use of physical restraints.

       a process for providing child-specific exceptions to use aversive behavioral interventions to reduce or modify student behaviors, which would include review by an independent panel of professionals with appropriate clinical and behavioral expertise to provide a recommendation to the CSE or CPSE if an exception is necessary so as not to hinder the student's right to a free, appropriate public education.

       program standards for the use of aversive behavioral interventions that include requirements for:

o      the humane and dignified treatment of students;

o      procedures used consistent with a student's individualized education program  (IEP) and behavioral intervention plan;

o      the use of aversive behavioral intervention procedures in conjunction with other therapies;

o      the use of reinforcement procedures based on student reinforcement preferences;

o      the application of aversive behavioral interventions consistent with peer-reviewed research that include procedures for a student to generalize and maintain behaviors and for the fading of aversive behavioral interventions;

o      limiting the use of aversive behavioral interventions to those behaviors of greatest concern;

o      use of the aversive interventions at the lowest intensity and for the shortest duration and period of time effective to treat the problem behavior and use of strategies that increase the effectiveness of mild levels of aversive interventions;

o      approval of the US Food and Drug Administration for any aversive conditioning devices and a requirement that the magnitude, frequency and duration for the use of such a device must have been shown to be safe and effective in clinical peer-reviewed studies.

o      establishment of a Human Rights Committee in each program that uses aversive behavioral interventions;

o      appropriate certification, licensing, supervision and training of all personnel who will be authorized to use aversive behavioral interventions;

o      informed parent consent prior to the use of aversive behavioral interventions;

o      progress monitoring of aversive behavioral intervention plans, including quarterly reports submitted to the CSE or CPSE; and

o      school district oversight responsibilities for students receiving aversive behavioral interventions, including a requirement for a CSE or CPSE meeting at least every six months.

       An exception for education programs operated by another State agency where the rules of the other State agencies are inconsistent with the requirements of this section.


draft

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

          Pursuant to Education Law sections 207, 210, 4401, 4402, 4403, and 4410

          1.       Section 19.5 of the Chapter I of the Rules of the Board of Regents is amended, effective _______________, 2006, as follows:

ß 19.5   Prohibition of corporal punishment and certain behavioral interventions.

 (a)  Prohibition of corporal punishment

 (1) No teacher, administrator, officer, employee or agent of a school district in this State, [or of] a board of cooperative educational services (BOCES), a charter school, an approved preschool program, an approved private school, an approved out-of-State day or residential school, or of a registered nonpublic nursery, kindergarten, elementary or secondary school in this State, shall use corporal punishment against a pupil.

[(b)] (2) As used in this section, corporal punishment means any act of physical force upon a pupil for the purpose of punishing that pupil, except as otherwise provided in [subdivision (c)] paragraph 3 of this [section] subdivision.

[(c)] (3) In situations in which alternative procedures and methods not involving the use of physical force cannot reasonably be employed, nothing contained in this section shall be construed to prohibit the use of reasonable physical force for the following purposes:

[(1)]  (i) to protect oneself from physical injury;

[(2)]  (ii) to protect another pupil or teacher or any person from physical injury;

[(3)]  (iii) to protect the property of the school , school district or others; or

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

          (b)      Prohibition of the use of aversive behavioral interventions. 

(1)      No public school, BOCES, charter school, approved preschool program, approved private school, State-operated or State-supported school in this State, approved out-of-State day or residential school, or registered nonpublic nursery, kindergarten, elementary or secondary school in this State shall employ the use of aversive behavioral interventions to reduce or eliminate maladaptive behaviors, except as provided pursuant to section 200.22(e) and (f) of  this Title.

(2)      As used in this section, aversive behavioral intervention means:

 (i)      application of noxious, painful, intrusive stimuli or activities intended to induce pain such as electric skin shock, ice applications, hitting, slapping, pinching, kicking, hurling, strangling, shoving, deep muscle squeezes or other similar stimuli;

 (ii)     any form of noxious, painful or intrusive spray or inhalant;

 (iii)     withholding sleep, shelter, bedding, bathroom facilities or clothing;

 (iv)     contingent food programs that include withholding or limiting food or drink or essential nutrition or hydration as part of meal times or intentionally altering staple food or drink in order to make it distasteful; 

 (v)     movement limitation used as a punishment, including but not limited to helmets and mechanical restraint devices;

 (vi)     the placement of a child unsupervised or unobserved in a room from which the student cannot exit without assistance; or 

 (vii)    other stimuli or actions similar to the interventions described in subparagraphs  (i) through  (vi) of this  paragraph.

The term does not include such interventions as voice control, limited to loud, firm commands; time-limited ignoring of a specific behavior; token fines as part of a token economy system; brief physical prompts to interrupt or prevent a specific behavior; or other similar interventions.

2.       Paragraphs (lll) and (mmm) are added to section 200.1 of the Regulations of the Commissioner of Education, effective _____________, as follows:

(lll)      Aversive behavioral intervention means application of noxious, painful, intrusive stimuli or activities intended to induce pain such as electric skin shock, ice applications, hitting, slapping, pinching, kicking, hurling, strangling, shoving, deep muscle squeezes or other similar stimuli; any form of noxious, painful or intrusive spray or inhalant; withholding sleep, shelter, bedding, bathroom facilities or clothing; contingent food programs that include withholding or limiting food or drink or essential nutrition or hydration as part of meal times or intentionally altering staple food or drink in order to make it distasteful; movement limitation used as a punishment, including but not limited to helmets and mechanical restraint devices; the placement of a child unsupervised or unobserved in a room from which the student cannot exit without assistance; or  other similar stimuli or actions.  The term does not include such interventions as voice control, limited to loud, firm commands; time-limited ignoring of a specific behavior; token fines as part of a token economy system; brief physical prompts to interrupt or prevent a specific behavior; or other similar interventions.

 (mmm)         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 to address the behavior.

3.       Subparagraph (i) of paragraph (3) of subdivision (d) of section 200.4 of the Regulations of the Commissioner of Education is amended, effective _________, as follows:

(i)       in the case of a student whose behavior impedes his or her learning or that of others, consider strategies, including positive behavioral interventions, and supports and other strategies to address that behavior that are consistent with the requirements in section 200.22 of this Part;      

4.       Subparagraph (i) of paragraph (2) of subdivision (a) of section 200.7 of the Regulations of the Commissioner is amended, effective _______________, 2006, as follows:

(i)       Conditional approval for private schools shall be limited to a period of one school year, or the period of time required to complete approval, and will be based on:

(a)  .   .   .

(b)  .   .   .

(c)  .   .   .

(d)      For schools operating as corporate entities, evidence of the following:

(1)  .   .   .

(2)  .   .   .

(3)      for out-of-state schools, a license or charter from the state education agency of the state in which the school is located; [and]

(e)      at least one onsite program review visit by program or fiscal staff of the Education Department; and

(f)       submission for approval of the schoolís procedures regarding behavioral interventions, including, if applicable, procedures for the use of aversive behavioral interventions.

5.       Subparagraph (iv) of paragraph (3) of subdivision (a) of section 200.7 of the Regulations of the Commissioner of Education is amended, effective _____,2006, as follows:

(iv)      Schools may be removed from the approved list five business days after written notice by the commissioner indicating that there is a clear and present danger to the health or safety of students attending the school, and listing the dangerous conditions at the school, including, but not limited to, evidence that an approved private school is using aversive behavioral interventions to reduce or eliminate maladaptive behaviors of students without a child-specific exception provided pursuant to section 200.22(e) of this Part or that an approved private school is using aversive behavioral interventions in a manner inconsistent with the standards as established in section 200.22 (f) of this Part.

6.       Paragraph (8) is added to subdivision (b) of section 200.7 of the Regulations of the Commissioner of Education, effective _______2006, as follows: 

(8)      Except as provided in subdivision (e) of section 200.22 of this Part, an approved private school, a State-operated school, or a State-supported school is prohibited from using corporal punishment and aversive behavioral interventions to reduce or eliminate maladaptive behaviors of students.

7.       Paragraph (6) is added to subdivision (c) of section 200.7 of the Regulations of the Commissioner of Education, effective _______, 2006, as follows:

(6)      Policies and procedures relating to the use of aversive behavioral interventions.  Not later than August 15, 2006, a private school that proposes to use or continue to use aversive behavioral interventions in its program shall submit its written policies and procedures on behavioral interventions to the Department with  certification that the schoolís policies, procedures and practices are demonstrably in compliance with the standards established in section 200.22(f) of this Part.  Any school that fails to meet this requirement shall be immediately closed to new admissions of New York students and shall be prohibited from using aversive behavioral interventions with any New York State student placed in such program.  Failure to comply with this requirement may result in termination of private school approval pursuant to paragraph (3) of subdivision (a) of this section.

8.       A new section 200.22 is added to Part 200 of the Regulations of the Commissioner of Education, effective ____________, 2006, as follows:

ß 200.22       Program standards for behavioral interventions.

Behavioral intervention plans shall be provided in accordance with this section and those other applicable provisions of this Part 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 3 of Part 201 of this Title.

(2)      The FBA shall, as appropriate, be based on information obtained from direct observation of the student, information from the student, the studentís 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 studentís parent.  The FBA shall not be based solely on the studentís history of presenting problem behaviors.

(3)      The FBA shall provide a baseline of the student's problem behaviors across activities, settings, people and times of the day and include the information required in section 200.1(r) of this Part in sufficient detail to form the basis for a behavioral intervention plan for the student that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement. 

(b)      Behavioral intervention plan.  The CSE or CPSE shall consider the development of a behavioral intervention plan for a student with a disability whenever the studentís behaviors that impede the student's learning or that of others persist despite consistently implemented general school-wide or classroom-wide interventions; when the studentís behavior places the student or others at risk of harm or injury; when the CSE or CPSE is considering more restrictive programs or placements as a result of the studentís behavior; and as required pursuant to section 201.3 of this Title.

(1)      In accordance with the requirements in section 200.4 of this Part, in the case of a student whose behavior impedes his or her learning or that of others, the CSE or CPSE shall consider strategies, including positive behavioral interventions and supports and other strategies to address that behavior.  The IEP shall include a statement if the student needs a particular device or service, including an intervention, accommodation or other program modification in consideration of the studentís behavior that impedes his or her learning or that of others.  A studentís need for a behavioral intervention plan shall be documented on the IEP and such plan shall be reviewed at least annually by the CSE or CPSE. 

(2)      Except as provided in subdivision (f) of this section, a behavioral intervention plan shall not include the use of aversive behavioral interventions.

(3)      The behavioral intervention plan shall identify:

(i)       the baseline measure of the problem behavior, including the frequency, duration and intensity 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 against which to evaluate intervention effectiveness;

(ii)      the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and

(iii)      a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals.

(4)      Progress Monitoring.  The implementation of a studentís behavioral intervention plan shall include regular progress monitoring of the frequency, duration and intensity of the behavioral interventions at scheduled intervals, as specified in the behavioral intervention plan and on the student's IEP.  The results of the progress monitoring shall be documented and reported to the student's parents and to the CSE or CPSE and shall be considered in any determination to revise a student's behavioral intervention plan or IEP. 

(c)      Use of time out rooms.  (1) Each school which uses a time out room as part of its behavior management approach shall ensure that the schoolís policy and procedures on the use of the time out room are developed and implemented consistent with State policy, including the physical and monitoring requirements, parental rights and IEP requirements for students with disabilities.

(2)      A studentís 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 studentís age and individual needs. 

(3)      Except for emergency interventions, the use of a time out room shall only be used in conjunction with a behavioral intervention plan that is designed to teach and reinforce alternative appropriate behaviors.  

(4)      Parents shall be informed prior to the initiation of a behavioral intervention plan which will incorporate the use of a time out room.  Upon request, parents must be shown the physical space that will be used as a time out room.

(5)      The physical space used as a time out room shall provide a means for continuous visual and auditory monitoring of the student.  The room shall be of adequate width, length and height to allow the student to move about and recline comfortably.  Wall and floor coverings should be designed to prevent injury to the student and there shall be adequate lighting and ventilation.  The temperature of the room shall be within the normal comfort range and consistent with the rest of the building.  The room shall be clean and free of objects and fixtures that could be potentially dangerous to a student and shall meet all local fire and safety codes. 

(6)      The time out room shall be unlocked and the door must be able to be opened from the inside.  The use of locked rooms or spaces for purposes of time out is prohibited.

(7)      Staff shall be assigned to continuously monitor the student in a time out room.  The staff must be able to see and hear the student at all times. 

(8)      The school shall establish and implement procedures to document the use of the time out room, including information to monitor the effectiveness of the use of the time out room to decrease specified behaviors.  

(9)      The use of time out rooms in education programs operated pursuant to section 112 of the Education Law and Part 116 of the Regulations of the Commissioner of Education are subject to the rules of the respective State agency operating such programs where such rules are inconsistent with the requirements in this section.

(d)      Emergency use of physical restraints.

(1)  The use of physical force to restrain a student from engaging in behaviors shall not be used as a substitute for systematic behavioral interventions that are designed to change, replace, modify or eliminate a targeted behavior.

 (2)     Staff who may be called upon to implement emergency interventions shall be provided with appropriate training in safe and effective restraint interventions.

 (3)     Emergency use of physical restraints shall only be used when other methods attempted to prevent escalation of the studentís behaviors are ineffective to control the situation.

 (4)     Emergency interventions shall not include locked seclusion. 

 (5)     The use of emergency interventions in education programs operated pursuant to section 112 of the Education Law and Part 116 of the Regulations of the Commissioner of Education are subject to the rules of the respective State agency operating such programs where such rules are inconsistent with the requirements in this section.

(e)      Child-specific exception to use aversive behavioral interventions to reduce or modify student behaviors. Whenever a school district is considering the need for a child-specific exception to use aversive behavioral interventions as otherwise prohibited by section 19.5(b) of  the Rules of the Board of Regents, the school district shall request a State-level review of such recommendation. 

(1)      Effective on or after October 1, 2006, when a CSE or CPSE is first considering a recommendation to use aversive behavioral interventions with a student, the school district shall submit an application for a recommendation for a child-specific exception to the prohibition of the use of aversive behavioral interventions, provided however that for any student with an IEP in effect prior to October 1, 2006 that includes a recommendation for an aversive behavioral intervention, such application shall be submitted prior to the next scheduled review of the studentís IEP but not later than October 1, 2006 and annually thereafter.

(2)      The application for the child-specific exception, which shall be on a form prescribed by the commissioner, shall be reviewed by an independent panel of experts appointed by the commissioner or designee.

 (3)     The review panel shall be comprised of a minimum of three professionals with appropriate clinical and behavioral expertise to make such determinations.  

(4)      The child-specific review panel shall conduct a review of the written application, which shall include a review of the student's IEP, functional behavioral assessment, proposed, current and 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, including any information provided by the studentís parent.

(5)      The decision of the child-specific review panel to recommend that the CSE or CPSE provide an exception shall be based on the professional judgment of the review panel as to whether:

 (i)      the student is displaying self-abusive or aggressive behaviors that threaten the physical well being of the student or that of others; and

 (ii)     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

 (iii)     a determination that such behaviors pose such significant health and safety concerns as to warrant the use of aversive behavioral interventions to affect change in the behavior.

(6)_    The child-specific review panel shall, within 15 business days of receipt of an application, notify the school district and the commissioner of its recommendation.

(7)      The child-specific review panel may recommend, in whole or in part, that a child-specific exception be provided to use aversive behavioral interventions to reduce or modify a studentís behaviors when the facts indicate that failure to do so would hinder the student's right to a free, appropriate public education.

 (i)      A recommendation that supports a child-specific exception for the use of aversive behavioral interventions shall be based on the unanimous recommendation of the panel and shall identify the reasons for the recommendation.

 (ii)     A recommendation to deny a child-specific exception shall identify the reasons why the child-specific exception should not be allowed by the CSE/CPSE.

 (8)      The CSE or CPSE shall meet to review the recommendation of the child-specific review panel and make a recommendation concerning the use of aversive behavioral interventions for a student with a disability.

(9)      Any recommendation on a student's IEP to use aversive behavioral interventions shall identify the specific targeted behavior(s) and the specific aversive behavioral intervention to be used to address the behavior(s) and, specify if the aversive behavioral intervention includes the use of an aversive conditioning device.

(10)    Any recommendation by the child-specific review panel for an exception to the prohibition on the use of aversive behavioral interventions shall expire on the last day of the time period specified in the recommendation which shall not be more than one year.  To extend the period of the exception, the CSE or CPSE must resubmit an application for review by the child-specific review panel of the progress of the student, which shall include the progress monitoring data of the implementation of the student's behavioral intervention plan. 

 (11)   Nothing in this section shall authorize the use of aversive behavioral interventions without the informed written consent of the student's parent.

(12)    A CSE or CPSE may recommend on a studentís IEP to discontinue the use of aversive behavioral interventions with a student without informing the child-specific review panel.

 (13)   The use of aversive behavioral interventions in education programs operated pursuant to section 112 of the Education Law and Part 116 of  this Title are subject to the rules of the respective State agency operating such programs where such rules are inconsistent with the requirements in this section. 

(14)    Coordination with licensing agencies.  Nothing in this section  shall authorize a school or agency to provide aversive behavioral interventions that are otherwise prohibited by the State agency licensing such program.

(f)       Program standards for the use of aversive behavioral interventions. 

(1)      Applicability.  The requirements in this subdivision shall apply to a public school, BOCES, charter school, approved preschool program, approved private school, State-operated or State-supported school in this State and an approved out-of-State day or residential school.

(2)      In general.  Any program that employs the use of aversive behavioral interventions to modify an individual student's behavior as authorized pursuant to subdivision (e) of this section shall comply with the following standards.  The programís policies and procedures consistent with these standards shall be submitted to the Department for approval prior to the use of such interventions.

(3)      The program shall provide for the humane and dignified treatment of the student and for the development of such studentís full potential at all times.  The program shall promote respect for the studentís personal dignity and right to privacy and shall not employ the use of threat of force, ridicule or humiliation, nor implement behavioral interventions in a manner that shows a lack of respect for basic human needs and rights.

(4)      Aversive behavioral intervention procedures may only be used if such interventions are recommended by the CSE or CPSE consistent with the studentís IEP and behavioral intervention plan as determined by the CSE or CPSE.

(5)      Aversive behavioral intervention procedures shall not be used in the absence of other therapies such as verbal or other counseling therapies, speech and language therapy and/or functional communication training.

(6)      Aversive behavioral interventions shall be combined with reinforcement procedures, as individually determined based on an assessment of the studentís reinforcement preferences.

(7)      Aversive behavioral interventions shall be implemented consistent with peer-reviewed research based practices and shall include individualized procedures for generalization and maintenance of behaviors and for the fading of the use of such aversive behavioral interventions.

(8)      The use of aversive behavioral interventions shall be limited to those behaviors of greatest concern as identified on the studentís IEP.

(9)      Whenever possible, the use of aversive behavioral interventions shall apply the lowest intensity for the shortest duration and period of time that is effective to treat the problem behavior and employ strategies that increase the effectiveness of mild levels of aversive behavioral interventions.  In the event the aversive behavioral intervention fails to result in a suppression of a behavior over time, alternative procedures shall be considered that do not include increasing the magnitude of the aversive behavioral intervention.

(10)    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. 

(11)    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 indirect or collateral effects the use of aversive behavioral interventions may be having, including, but not limited to, increases in aggressive or escape behaviors, health-related effects and/or emotional reactions.

(12)    Human Rights Committee.   (i) Each school that uses aversive behavioral interventions with students shall establish a Human Rights Committee to monitor the schoolís behavior intervention program for any student being considered for or receiving aversive behavioral interventions to ensure the protection of legal and human rights of individuals. 

 (ii)     The Human Rights Committee shall be comprised of individuals not employed by the school or agency, which shall include at least one licensed psychologist with appropriate credentials in applied behavior analysis, one licensed physician, physicianís assistant or nurse practitioner, one registered dietician or nutritionist, one attorney, law student or paralegal and one parent or parent advocate.  In addition, when the purpose of the Human Rights Committee meeting includes a review of an individual New York State studentís 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 studentsí behavioral intervention plans that include aversive behavioral interventions.  A written report on the findings and recommendations of the Human Rights Committee regarding an individual student shall be provided to the CSE or CPSE of the student and to the agency that placed the student in the program.

(13)    Behavioral intervention plans shall be designed and supervised by qualified professionals in accordance with their respective areas of professional competence.  All personnel involved in the development, application, monitoring, data collection or review of a behavioral intervention plan that includes the use of aversive behavioral interventions shall be appropriately certified in accordance with the provisions of Part 80 of this Title and sections 200.6 and 200.7 of this Part. 

(14)    All staff and volunteers who will be authorized to use aversive behavioral interventions on students shall receive appropriate supervision, including direct observation. 

(15)    Appropriate training shall be provided to staff on a regular, but at least annual basis, which shall include, but not be limited to, training on:

 (i)      safe and therapeutic emergency physical restraint interventions;

 (ii)     data collection of the frequency, duration and latency of behaviors;

 (iii)     identification of antecedent behaviors and reinforcing consequences of the behavior;

 (iv)     approaches to teach alternative skills or behaviors including functional communication training;

 (v)     assessment of student preferences for reinforcement,

 (vi)     assessing and responding to the collateral effects of the use of aversive behavioral interventions including, but not limited to, effects on a studentís health, increases in aggression, increases in escape behaviors and/or emotional reactions;

 (vii)    privacy rights of students; and

 (viii)   critical incident reporting. 

(16)    Aversive behavioral interventions shall only be provided with the informed written consent of the parent and no parent shall be required by the program to remove the student from the program if he or she refuses consent for an aversive behavioral intervention.

(17)    The programís use of aversive behavioral interventions, including a review of all critical incident reports relating to such interventions, shall be subject to quality assurance reviews to ensure that practices are clinically sound, supported by proper documentation and consistent with these program standards and the schoolís policies and procedures as approved by the Department.

(18)    The program shall submit quarterly written progress reports on the implementation of the studentís behavioral intervention program to the CSE or CPSE and to the agency that placed the student in the program.

(19)    A school district that places a student in a program that uses aversive behavioral interventions with such student shall be responsible to ensure that the studentís education and behavior program are being implemented consistent with the recommendation of the CSE or CPSE as documented in the studentís IEP and behavioral intervention plan, which shall include the review of written progress monitoring and critical incident reports, at least annual observations of and, as appropriate, interviews with the student in the program and regular communication with the studentís parent.  The CSE or CPSE shall convene at least every six months, or more frequently as needed, to review the studentís educational program and placement for any student for whom the CSE or CPSE has recommended the use of aversive behavioral interventions.

(20)    The use of aversive behavioral interventions in education programs operated pursuant to section 112 of the Education Law and Part 116 of  this Title are subject to the rules of the respective State agency operating such programs where such rules are inconsistent with the requirements in this section.