Summary of Amendments to the Regulations of the Commissioner of Education

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Effective January 16, 2007

BEHAVIORAL INTERVENTIONS, INCLUDING THE USE OF AVERSIVE INTERVENTIONS

 

Program Standards for Behavioral Interventions

 

Sections 200.1, 200.4 and 200.22 of the Regulations of the Commissioner of Education establish standards for assessments of student behaviors; behavioral intervention plans; the use of time out rooms; and use of emergency interventions.
 

I.    Assessment of Student Behaviors

II.   Behavioral Intervention Plans

III.   Use of Time Out Rooms

The physical space used as a time out room must meet certain standards.

IV.  Emergency Interventions

V.  Corporal Punishment and Aversive Interventions

        Section 19.5 of the Rules of the Board of Regents was amended as follows:

VI. Child-specific Exception to the Prohibition on the Use of Aversive Interventions

  • A child-specific exception to the prohibition of the use of aversive interventions may be granted for a school-age student, in accordance with the procedures outlined in section 200.22(e) of the Regulations of the Commissioner of Education, only during the 2006-07, 2007-08 and 2008-09 school years; provided that a student whose IEP includes the use of aversive interventions as of June 30, 2009 may be granted a child-specific exception in each subsequent school year, unless the IEP is revised to no longer include such exception. 

  • No child-specific exception shall be granted for a preschool student.
  • Aversive interventions shall be considered only for students who are displaying self-injurious or aggressive behaviors that threaten the physical well being of the student or that of others.

  • No child-specific exception shall be granted for interventions used as a consequence for behavior intended to induce pain or discomfort that include ice applications, hitting, slapping, pinching, deep muscle squeezes, use of an automated aversive conditioning device, the combined simultaneous use of mechanical restraints and the application of an aversive intervention; withholding of sleep, shelter, bedding, bathroom facilities, denial or unreasonable delays in providing regular meals to the student or other stimuli or actions similar to these interventions at the discretion of the Commissioner.

  • Whenever a CSE is considering whether a child-specific exception to the prohibition of the use of aversive interventions is warranted, the school district must submit an application to the Commissioner in a form prescribed by the Commissioner requesting a review of student specific information by an independent panel of experts.

  • The Commissioner will refer the application to an independent panel of experts appointed by the Commissioner or Commissioner's designee for a recommendation to the CSE as to whether a child-specific exception is warranted. The Panel will be comprised of three professionals with appropriate clinical and behavioral expertise to make such determinations.

  • The Panel will review the written application, the student's IEP, the student's diagnosis(es), the student's functional behavioral assessment (FBA); 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.

  • The Panel will make a recommendation to the student's CSE as to whether a child-specific exception is warranted.  The recommendation of the panel shall be based on the professional judgment of the panel that:

  • 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

  • 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 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.

  • The Panel will notify the school district and the Commissioner of its recommendation as to whether a child-specific exception is warranted and the reasons for that recommendation.  For students whose current IEP does not include a  child-specific exception, the Panel will provide notice within 15 business days of receipt of an application.

  • The CSE must determine, based on its consideration of the recommendation of the Panel, whether the student's IEP will include a child-specific exception allowing the use of aversive interventions. 

  • The determination to provide a child-specific exception must be made by the CSE and not by a subcommittee. 

  • The CSE must request the participation of the school physician member in such determination. 

  • The school district must notify and provide a copy of the student's IEP to the Commissioner when a child-specific exception has been included in the student's IEP.

  • Any IEP providing for a child-specific exception allowing the use of aversive interventions must identify the specific:

  • self injurious and/or aggressive targeted behavior(s);
  • aversive intervention(s) to be used to address the behavior(s); and
  • aversive conditioning device(s) and/or mechanical restraints where the aversive intervention(s) includes the use of such device(s).
  • A parent must provide informed written consent for the use of the aversive interventions.

  • A child-specific exception will be in effect only during the time period the IEP providing such exception is in effect.  If the continued use of an aversive intervention for a student is being considered for subsequent IEP(s), the CSE must submit an annual application to the Commissioner for each such IEP(s). 

  • If the student's IEP is amended or a subsequent IEP is adopted to no longer include a child-specific exception, the school district need not notify the Panel but must submit a revised copy of the student's IEP to the Commissioner.

 

VII.  Standards for the Use of Aversive Interventions

A. Policies and Procedures

  • Each school that proposes to use aversive interventions pursuant to a child-specific exception must submit its policies and procedures consistent with the above to the Department for approval prior to the use of such interventions. 

  • Only those schools with policies and procedures approved by the Department on or before June 30, 2007 shall be authorized to use such interventions.
  • Any program that employs the use of aversive interventions to modify an individual student's behavior must comply with the following standards: 

    • The program shall provide for the humane and dignified treatment of the student.  The program shall promote respect for the studentís 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.
    • Aversive intervention procedures may be used only if such interventions are recommended by the CSE consistent with the studentís IEP and behavioral intervention plan as determined by the CSE.
    • Aversive 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, such as verbal or other counseling services, speech and language therapy and/or functional communication training.
    • Aversive interventions shall be combined with reinforcement procedures, as individually determined based on an assessment of the studentís reinforcement preferences.
    • Aversive 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 interventions.
    • The use of aversive interventions shall be limited to those self-injurious or aggressive behaviors identified for such interventions in the studentís IEP.
    • Whenever possible, the use of aversive 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 interventions.
    • In the event the aversive 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 intervention.
    • 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.
    • No program may combine the simultaneous use on a student of a physical or mechanical restraint device with another aversive intervention.

B. Human Rights Committee

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

  • 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;
    • one parent or parent advocate; and
    • may include not more than two additional individuals selected by the school or agency.
  • When the purpose of the Human Rights Committee meeting includes a review of an individual New York State (NYS) studentís program, a representative of the school district or agency placing the student in the program and a representative of the NYS Education Department, Office of Vocational and Educational Services for Individuals with Disabilities (VESID) shall be invited to participate. 
  • The Human Rights Committee shall meet at least quarterly to review, monitor and investigate the implementation of studentsí behavioral intervention plans that include aversive interventions. 
  • A written report on the findings and recommendations of the Human Rights Committee regarding an individual student shall be provided to the CSE of the student and to the agency that placed the student in the program.
C.  Supervision and Training Requirements

Aversive interventions shall be administered by appropriately licensed professionals or certified special education teachers in accordance with Part 80 (Requirements for Teachers' Certificates and Teaching Practice) and sections 200.6(b) (Continuum of services) and 200.7(b)(6) (Program standards for education programs for students and preschool students with disabilities being educated in private schools and State-operated or State-supported schools) of the Regulations of the Commissioner of Education or under the direct supervision and direct observation of such staff.  Training shall be provided on a regular, but at least annual basis, which shall include, but not be limited to, training on:

  • safe and therapeutic emergency physical restraint interventions;
  • data collection of the frequency, duration and latency of behaviors;
  • identification of antecedent behaviors and reinforcing consequences of the behavior;
  • approaches to teach alternative skills or behaviors including functional communication training;
  • assessment of student preferences for reinforcement;
  • assessing and responding to the collateral effects of the use of aversive interventions including, but not limited to, effects on a studentís health, increases in aggression, increases in escape behaviors and/or emotional reactions;
  • privacy rights of students; and
  • documentation and reporting of incidents, including emergency restraints and injuries.
D. Parent Consent
  • Aversive 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 intervention.

  • A parent shall be given a copy of the school's policies and procedures on the use of aversive interventions.

E. Quality Assurance Reviews

The program providing aversive interventions must conduct periodic reviews of all incident reports relating to such interventions 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.

F. Progress Monitoring

The program using aversive interventions must:

  • 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 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; and

  • submit quarterly written progress reports on the implementation of the studentís behavioral intervention program to the CSE and to the agency that placed the student in the program.

VIII.  Public School District Responsibilities when Aversive Interventions are Recommended by the CSE

  • A school district that places a student in a program that uses aversive interventions with such student is responsible to ensure that the studentís IEP and behavioral intervention plan are being implemented.
     

  • The CSE must 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 has recommended the use of aversive interventions.
     

  • Such review must 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 the concerns of the studentís parent.
     

  • A representative of the school district must observe the student at least every six months and, as appropriate, interview the student in the program and communicate regularly with the studentís parent and must report the results thereof to the CSE.
     

IX. Requirements Relating to Approved Private Schools, State-supported and State-operated Schools

Section 200.7 of the Regulations of the Commissioner of Education relating to program standards for education programs for students and preschool students with disabilities being educated in private schools and State-operated or State-supported schools was amended as follows:

  • A school applying for approval must include with its application a copy of the schoolís procedures regarding behavioral interventions, including, if applicable, procedures for the use of aversive interventions. 

  • An approved private school serving school-age students with disabilities, a State-operated school or a State-supported school is prohibited from using aversive interventions, unless provided through a child-specific exception, to reduce or eliminate maladaptive behaviors of students. 

  • An approved preschool program is prohibited from using aversive interventions with preschool students with disabilities without exception. 

  • Not later than August 15, 2006, a private school that proposes to use or to continue to use aversive interventions in its program must submit its written policies and procedures on behavioral interventions to the Department.  Only those private schools with policies and procedures that are approved pursuant to section 200.22(f)(8) on or before June 30, 2007 shall be authorized to use such interventions with NYS students.  Failure to comply with the provisions of this paragraph may result in revocation of approval to accept new admissions of NYS students or termination of private school approval pursuant to section 200.7(b) of the Regulations of the Commissioner of Education. 

  • 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 interventions to reduce or eliminate maladaptive behaviors of students without a child-specific exception or that an approved private school is using aversive interventions in a manner inconsistent with the standards as established in section 200.22(f) of the Regulations of the Commissioner of Education.