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 student’s 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 students’ 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 SED’s 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., “leg, 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
“preferred staple foods” 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 “GED” 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 “increase
the GED’s therapeutic value”).
·
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 “aversive” 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 (“Hughes Act”) and regulations, adopted in the
early 1990s as a result of the death of a child stemming from a form of
restraint. California’s 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 (“Billy’s Law”) 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 student’s behavioral intervention program as authorized through the
waiver process, which must include reports of the student’s 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 student’s 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:
- general
rules for behavioral interventions, including a prohibition on the use of
aversive or noxious stimuli as a consequence for behaviors;
- a
process for exceptions to the prohibition on the use of aversive behavioral
interventions on a child-specific basis; and
- 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.
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:
§ 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 school’s procedures regarding behavioral interventions,
including, if applicable, procedures for the use of aversive behavioral
interventions.
5.
Subparagraph (iv) of paragraph (3) of subdivision (a) of section 200.7 of
the Regulations of the Commissioner of Education is amended, effective
_____,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 school’s
policies, procedures and practices are demonstrably in compliance with the
standards established in section 200.22(f) of this Part. Any school that fails to meet this
requirement shall be immediately closed to new admissions of New York students
and shall be prohibited from using aversive behavioral interventions with any
New York State student placed in such program. Failure to comply with this requirement
may result in termination of private school approval pursuant to paragraph (3)
of subdivision (a) of this section.
8. A new
section 200.22 is added to Part 200 of the Regulations of the Commissioner of
Education, effective ____________, 2006, as follows:
§ 200.22 Program standards
for behavioral interventions.
Behavioral intervention plans shall be provided in
accordance with this section and those other applicable provisions of this Part
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 student’s teacher(s) and/or related
service provider(s), a review of available data and information from the
student's record and other sources including any relevant information provided
by the student’s parent. The FBA
shall not be based solely on the student’s history of presenting problem
behaviors.
(3) The FBA shall
provide a baseline of the student's problem behaviors across activities,
settings, people and times of the day and include the information required in
section 200.1(r) of this Part in sufficient detail to form the basis for a
behavioral intervention plan for the student that addresses antecedent
behaviors, reinforcing consequences of the behavior, recommendations for
teaching alternative skills or behaviors and an assessment of student
preferences for reinforcement.
(b) Behavioral
intervention plan.
The CSE or CPSE shall consider the development of a behavioral
intervention plan for a student with a disability whenever the student’s
behaviors that impede the student's learning or that of others persist despite
consistently implemented general school-wide or classroom-wide interventions;
when the student’s behavior places the student or others at risk of harm or
injury; when the CSE or CPSE is considering more restrictive programs or
placements as a result of the student’s behavior; and as required pursuant to
section 201.3 of this Title.
(1) In accordance
with the requirements in section 200.4 of this Part, in the case of a student
whose behavior impedes his or her learning or that of others, the CSE or CPSE
shall consider strategies, including positive behavioral interventions and
supports and other strategies to address that behavior. 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 student’s
behavior that impedes his or her learning or that of others. A student’s need for a behavioral
intervention plan shall be documented on the IEP and such plan shall be reviewed
at least annually by the CSE or CPSE.
(2) Except as
provided in subdivision (f) of this section, a behavioral intervention plan
shall not include the use of aversive behavioral interventions.
(3) The behavioral
intervention plan shall identify:
(i) the
baseline measure of the problem behavior, including the frequency, duration 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 student’s
behavioral intervention plan shall include regular progress monitoring of
the frequency, duration and intensity of the behavioral interventions at
scheduled intervals, as specified in the behavioral intervention plan and on the
student's IEP. The results of the
progress monitoring shall be documented and reported to the student's parents
and to the CSE or CPSE and shall be considered in any determination to revise a
student's behavioral intervention plan or IEP.
(c) Use of time out
rooms. (1) Each school which uses a time out
room as part of its behavior management approach shall ensure that the school’s
policy and procedures on the use of the time out room are developed and
implemented consistent with State policy, including the physical and monitoring
requirements, parental rights and IEP requirements for students with
disabilities.
(2) A student’s IEP
shall specify when a behavioral intervention plan includes the use of a time out
room for a student with a disability, including the maximum amount of time a
student will need to be in a time out room as a behavioral consequence as
determined on an individual basis in consideration of the student’s age and
individual needs.
(3) Except for
emergency interventions, the use of a time out room shall only be used in
conjunction with a behavioral intervention plan that is designed to teach and
reinforce alternative appropriate behaviors.
(4) Parents shall be
informed prior to the initiation of a behavioral intervention plan which will
incorporate the use of a time out room.
Upon request, parents must be shown the physical space that will be used
as a time out room.
(5) The physical
space used as a time out room shall provide a means for continuous visual and
auditory monitoring of the student.
The room shall be of adequate width, length and height to allow the
student to move about and recline comfortably. Wall and floor coverings should be
designed to prevent injury to the student and there shall be adequate lighting
and ventilation. The temperature of
the room shall be within the normal comfort range and consistent with the rest
of the building. The room shall be
clean and free of objects and fixtures that could be potentially dangerous to a
student and shall meet all local fire and safety codes.
(6) The time out room
shall be unlocked and the door must be able to be opened from the inside. The use of locked rooms or spaces for
purposes of time out 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 student’s 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
student’s 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 student’s
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 student’s 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 student’s 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 program’s
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 student’s full potential at all times. The program shall promote respect for
the student’s personal dignity and right to privacy and shall not employ the use
of 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 student’s 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 student’s 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 student’s 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 school’s behavior intervention program for any student
being considered for or receiving aversive behavioral interventions to ensure
the protection of legal and human rights of individuals.
(ii) The Human Rights
Committee shall be comprised of individuals not employed by the school or
agency, which shall include at least one licensed psychologist with appropriate
credentials in applied behavior analysis, one licensed physician, physician’s
assistant or nurse practitioner, one registered dietician or nutritionist, one
attorney, law student or paralegal and one parent or parent advocate. In addition, when the purpose of the
Human Rights Committee meeting includes a review of an individual New York State
student’s program, a representative of the school district or agency placing the
student in the program and a representative of the Department shall be invited
to participate.
(iii) The Human Rights
Committee shall meet at least quarterly to review, monitor and investigate the
implementation of students’ behavioral intervention plans that include aversive
behavioral interventions. A written
report on the findings and recommendations of the Human Rights Committee
regarding an individual student shall be provided to the CSE or CPSE of the student and to the
agency that placed the student in the program.
(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 student’s 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 program’s 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 school’s policies and procedures as
approved by the Department.
(18) The program shall submit
quarterly written progress reports on the implementation of the student’s
behavioral intervention program to the CSE or CPSE and to the agency that placed
the student in the program.
(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 student’s education and behavior
program are being implemented consistent with the recommendation of the CSE or
CPSE as documented in the student’s 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 student’s
parent. The CSE or CPSE shall
convene at least every six months, or more frequently as needed, to review the
student’s educational program and placement for any student for whom the CSE or
CPSE has recommended the use of aversive behavioral interventions.
(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.
