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Pursuant to Education Law sections 207, 210, 305,
4401, 4402, 4403, and 4410
1. Section 19.5 of the Rules of the Board
of Regents is amended, effective June 23, 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, State-operated or State-supported school, an approved preschool
program, an approved private school, an approved out-of-State day or
residential school, or 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, inhalant or tastes;
(iii) withholding
sleep, shelter, bedding, bathroom facilities or clothing;
(iv) contingent food programs that include withholding meals or limiting essential nutrition or hydration 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; interventions medically necessary
for the treatment or protection of the student; or other similar interventions.
2. Paragraphs
(lll) and (mmm) are added to section 200.1 of the Regulations of the Commissioner
of Education, effective June 23, 2006, 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, inhalant or
tastes; withholding sleep, shelter, bedding, bathroom facilities or clothing;
contingent food programs that include withholding meals or limiting essential
nutrition or hydration 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; interventions medically necessary for the treatment or protection of
the student; or other similar interventions.
(mmm)
Behavioral intervention plan means a plan that is based on the results
of a 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 June 23, 2006, 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 June 23, 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 June 23, 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 June 23, 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 June 23, 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 to 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 June 23, 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
and/or Part 201 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 201.3 of this Title.
(2) The FBA shall, as appropriate, be based on multiple sources
of data including, but not limited to, 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 with regard to frequency, duration, intensity and/or latency 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 exhibits persistent behaviors that
impede his or her learning or that of others, 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. If a particular device or service, including
an intervention, accommodation or other program modification is needed to
address the student’s behavior that impedes his or her learning or that of
others, the IEP shall so indicate. 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,
intensity and/or latency 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 to establish performance criteria and 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 this subdivision, 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 or emergency interventions 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) For
an education program operated pursuant to section 112 of the Education Law and
Part 116 of this Title, if a provision of this section relating to use of time
out rooms conflicts with the rules of the respective State agency operating
such program, the rules of such State agency shall prevail and the conflicting
provisions of this section shall not apply.
(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 be used only when no other methods of
controlling the student's behaviors would be effective.
(4) For an
education program operated pursuant to section 112 of the Education Law and
Part 116 of this Title, if a provision of this section relating to the
emergency use of physical restraints conflicts with the rules of the respective
State agency operating such program, the rules of such State agency shall
prevail and the conflicting provision of this section shall not apply.
(e) Child-specific exception to use aversive behavioral interventions to reduce or modify student behaviors.
(1) (i) Effective on or after October 1, 2006, whenever a CSE or CPSE is considering whether a child-specific exception to the prohibition of the use of aversive behavioral interventions set forth in section 19.5(b) of this Title is warranted, the school district shall submit an application to the commissioner.
(ii) For any student with an IEP in effect prior to October 1, 2006 that includes the use of aversive behavioral interventions, such application shall be submitted prior to the next scheduled review of the student’s IEP, but not later than October 1, 2006.
(2) The
application shall be in a form prescribed by the commissioner. The commissioner shall refer the application
to an independent panel of experts appointed by the commissioner or
commissioner's designee. The panel
shall be comprised of three professionals with appropriate clinical and
behavioral expertise to make such determinations.
(3) The
panel shall review the written application; the student's IEP; the student's
diagnosis(es); the student’s functional behavioral assessment; any proposed,
current and/or prior behavioral intervention plans for the student, including
documentation of the implementation and progress monitoring of the
effectiveness of such plans; and other relevant individual evaluations and
medical information that allow for an assessment of the student’s cognitive and
adaptive abilities and general health status, including any information
provided by the student’s parent.
(4) The panel's
recommendation to the CSE or CPSE as to whether a child-specific exception is
warranted shall be based on the professional judgment of the panel that:
(i) the student is
displaying self-injurious or aggressive behaviors that threaten the physical
well being of the student or that of others and a full range of evidence-based
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
(ii) the student's
self-injurious or aggressive behaviors are of such severity as to pose
significant health and safety concerns that warrant the use of aversive
behavioral interventions to effect rapid suppression of the behavior and a
range of nonaversive prevention strategies have been employed and have failed
to provide a sufficient level of safety.
(5) The
panel shall notify the school district and the commissioner of its
recommendation as to whether a child-specific exception is warranted and the
reasons therefor. For applications
received pursuant to subparagraph (i) of paragraph (1) of this subdivision, the
panel shall provide such notice within 15 business days of receipt of an
application.
(6) The
CSE or CPSE shall, based on its consideration of the recommendation of the
panel, determine whether the student's IEP shall include a child-specific
exception allowing the use of aversive behavioral interventions. The school district shall notify the
commissioner when a child-specific exception has been included in the student's
IEP.
(7) Any
IEP providing for a child-specific exception allowing the use of aversive
behavioral interventions shall identify the specific:
(i) targeted
behavior(s);
(ii) aversive
behavioral intervention(s) to be used to address the behavior(s); and
(iii) aversive
conditioning device(s) where the aversive behavioral intervention(s) includes
the use of such device(s).
(8) Nothing in this section shall authorize the use of aversive behavioral interventions without the informed written consent of the student's parent.
(9) Any
such child-specific exception shall be in effect only during the school year
for which such IEP applies. If the
student's IEP is amended, or a subsequent IEP is adopted, that no longer
permits the use of aversive behavioral interventions, the school district need
not notify the panel or the commissioner.
(10) For
an education program operated pursuant to section 112 of the Education Law and
Part 116 of this Title, if a provision of this section relating to the use of
aversive behavioral interventions conflicts with the rules of the respective
State agency operating such program, the rules of such State agency shall
prevail and the conflicting provision of this section shall not apply.
(11) 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.
(i) 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.
(ii) For an education program operated pursuant to section 112 of the Education Law and Part 116 of this Title, if a provision of this section relating to the use of aversive behavioral interventions conflicts with the rules of the respective State agency operating such program, the rules of such State agency shall prevail and the conflicting provision of this section shall not apply.
(2) General
requirements. 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:
(i) 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
threats of harm, ridicule or humiliation, nor implement behavioral
interventions in a manner that shows a lack of respect for basic human needs
and rights.
(ii) Aversive behavioral intervention
procedures may be used only 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.
(iii) Aversive behavioral intervention
procedures shall not be the sole or primary intervention used with a student
and shall be used in conjunction with other related services, as determined by
the CSE or CPSE, such as verbal or other counseling services, speech and
language therapy and/or functional communication training.
(iv) Aversive
behavioral interventions shall be combined with reinforcement procedures, as
individually determined based on an assessment of the student’s reinforcement
preferences.
(v) 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.
(vi) The
use of aversive behavioral interventions shall be limited to those
self-injurious or aggressive behaviors identified for such interventions on the
student’s IEP.
(vii) 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 or reduction of the behavior over
time, alternative procedures shall be considered that do not include increasing
the magnitude of the aversive behavioral intervention.
(viii) 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.
The use of automated aversive conditioning devices is prohibited.
(ix) No
program may use an aversive behavioral intervention on a student while the
student is in a physical or mechanical restraint.
(x) 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
(3) 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.
(4) Supervision
and training requirements. Any person
who uses aversive behavioral interventions on students shall receive
appropriate supervision, including direct observation. Appropriate training shall be provided 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) documentation and reporting of
incidents, including emergency restraints and injuries.
(5) Parent consent. Aversive behavioral interventions shall be provided only 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.
(6) Quality
assurance reviews. The program’s use of
aversive behavioral interventions, including a review of all 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.
(7) Progress monitoring. (i) 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 assessment of and strategies used to address any indirect or collateral effects the use of aversive behavioral interventions may be having on the student, including, but not limited to, increases in aggressive or escape behaviors, health-related effects and/or emotional reactions. 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.
(ii) 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 IEP and behavioral intervention plan are being implemented. 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.
Such review shall include the review of written progress monitoring and
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.
(8) Policies and procedures. Each school that proposes to use aversive behavioral interventions pursuant to a child-specific exception shall submit its policies and procedures consistent with this subdivision to the Department for approval prior to the use of such interventions.