PROPOSED AMENDMENT OF SECTION 19.5 OF THE RULES OF THE BOARD OF REGENTS AND SECTIONS 200.1, 200.4, 200.7 AND 201.2 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION AND PROMULGATION OF A NEW SECTION 200.22 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION, PURSUANT TO SECTIONS 207, 210, 305, 4401, 4402, 4403 AND 4410 OF THE EDUCATION LAW, RELATING TO BEHAVIORAL INTERVENTIONS, INCLUDING THE USE OF AVERSIVE INTERVENTIONS
STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE
The purpose of the proposed rule is to establish standards for behavioral interventions, including a prohibition on the use of aversive interventions; to provide for a child-specific exception to the prohibition on the use of aversive interventions; and to establish standards for programs using aversive interventions.
Until the adoption of emergency regulations, effective June 23, 2006, neither New York State Education Law nor the Regulations of the Commissioner of Education prohibited the use of aversive interventions in school programs serving New York State students. Aversive interventions have the potential to affect the health and safety of children, yet there was a lack of a clear policy and no standards on their use in school programs. Through site visits, reports and complaints filed by parents, school districts and others, the Department identified concerns with preschool programs serving children with disabilities that use aversive interventions such as sprays to the face and noxious tastes placed on the child's lips, and an out-of-state residential school serving more than 145 New York State students with disabilities that is using contingent food programs, mechanical restraints and electric shock interventions to modify students' behaviors. A recent site review of the out-of-state residential school identified significant concerns for the potential impact on the health and safety of New York's students placed at this school. Regulations are needed to limit the aversive interventions that inflict pain and discomfort to children and have the potential to result in physical injury and/or emotional harm. In those exceptional instances when a child displays such extreme self-injurious or aggressive behaviors as to warrant a form of punishment to intervene with the behavior, regulations are necessary to ensure that such interventions are used in accordance with the highest standards of oversight and monitoring and in accordance with research-based practices.
The proposed rule was adopted as an emergency measure at the June 2006 meeting of the Board of Regents, effective June 23, 2006, upon a finding by the Board of Regents that such action is necessary for the preservation of the public health and safety in order to minimize the risk of physical injury and/or emotional harm to students who are subject to aversive interventions that inflict pain or discomfort, by immediately establishing standards for the use of such interventions that will ensure they are used only when absolutely necessary and under conditions of minimal intensity and duration to accomplish their purpose. A Notice of Emergency Adoption and Proposed Rule Making was filed with the Department of State on June 23, 2006 and was published in the State Register on July 12, 2006. Subsequent emergency adoptions were taken at the September 11-12, 2006 and the October 23-24 Regents meetings to keep the rule continuously in effect until the effective date of the rule's adoption on a permanent basis.
The State Education Department received a substantial amount of public comment on the proposed rule making in response to its publication in the State Register, and from the three public hearings concerning the proposed rule that were conducted by the Department in August 2006. The proposed amendment was subsequently revised in response to the comments and a Notice of Revised Rule Making was published in the State Register on November 15, 2006. The proposed amendment, as revised, is being presented to the Board of Regents for adoption as a permanent rule at their January 8-9, 2007 meeting, which is the first scheduled meeting after expiration of the 30-day public comment period for revised rules established by the State Administrative Procedure Act (SAPA.)
However, pursuant to SAPA section 202(6)(b), the October 2006 emergency adoption will expire on January 15, 2007, sixty (60) days after the date of its filing with the Department of State. A fourth emergency action is necessary for the preservation of the public health and safety to minimize the risk of physical injury and/or emotional harm to students who are subject to aversive interventions that inflict pain or discomfort, by immediately establishing revised standards for the use of such interventions, made in response to public comment, that will ensure such interventions are used only when absolutely necessary and under conditions of minimal intensity and duration to accomplish their purpose, and to otherwise ensure that the rule's standards providing for the use of such interventions remain continuously in effect until the effective date of the rule's adoption on a permanent basis.