The following revisions to the emergency regulations are proposed:
The term “aversive behavioral interventions” was changed to “aversive interventions” and the definition revised to mean:
(i) contingent application of noxious, painful, intrusive stimuli or activities;
(ii) any form of noxious, painful or intrusive spray, inhalant or tastes;
(iii) contingent food programs that include the denial or delay of the provision of meals or intentionally altering staple food or drink in order to make it distasteful;
(iv) movement limitation used as a punishment, including but not limited to helmets and mechanical restraint devices; and
(v) other stimuli or actions similar to the interventions described in subparagraphs (i) through (iv) of this paragraph.
The regulations were revised to prohibit, without exception, the following aversive interventions: ice applications; hitting; slapping; pinching; deep muscle squeezes; use of an automated aversive conditioning device; the combined simultaneous use of physical or mechanical restraints and the application of an aversive intervention; withholding of sleep, shelter, bedding or bathroom facilities; denial or unreasonable delays in providing regular meals to the student that would result in a student not receiving adequate nutrition; placing a student unsupervised or unobserved in a room from which the student cannot exit without assistance; or other stimuli or actions similar to these interventions at the discretion of the Commissioner.
The procedures for child-specific exceptions for aversive interventions were revised to:
· authorize child-specific exceptions only for the 2006-07, 2007-08 and 2008-09 school years, provided that a student with an individualized education program (IEP) that includes aversive interventions as of June 30, 2009 may be provided a child-specific exception each subsequent year, unless the student’s IEP is revised to no longer include aversive interventions.
· clarify that a Subcommittee on Special Education cannot recommend a child-specific exception and that the physician member must be invited to the Committee on Special Education (CSE) meeting convened to consider including aversive interventions on a student's IEP.
· add that when an IEP includes a child-specific exception or if an IEP is amended to no longer include a child-specific exception that a copy of the IEP must be submitted to the Commissioner.
· clarify that an application for a child-specific exception must be submitted annually.
Schools that may use aversive interventions
· The regulations were revised to limit the schools that use aversive interventions to those that have their policies and procedures for the use of aversive interventions approved by the Department as of June 30, 2007, except that all preschool programs are prohibited, without exception, from using aversive interventions with preschool students.
Program standards when aversive interventions are used
The program standards for the use of aversive interventions were modified to:
· clarify the qualifications of the individuals responsible for designing and supervising behavioral intervention plans that include the use of aversive interventions.
· limit the number of human rights committee members appointed by the school or agency.
· clarify that quality assurance reviews of incident reports relating to aversive interventions must be conducted periodically by the program providing the aversive interventions.
· require that a representative of the school district observe a student, and if appropriate, interview a student at least once every six months when the student’s IEP includes the use of aversive interventions.
The definition of “behavioral intervention plan” (BIP) was revised to add that the intervention strategies to address behaviors must include positive behavioral supports and services.
The program standards for the use of time out rooms were revised to:
· define a time out room to mean an area for a student to safely deescalate, regain control and prepare to meet expectations to return to his or her education program.
· require the school’s policies and procedures to: prohibit placing a student in a locked room or space or in a room where the student cannot be continuously observed and supervised; include factors which may precipitate the use of the time out room, time limitations for the use of the time out room; specify requirements for inservice training for staff on the policies and procedures related to the use of time out room; specify data collection to monitor the effectiveness of the use of time out rooms; and specify information to be provided to parents.
· clarify that a time out room may only be used as part of behavioral intervention plan or for unanticipated situations that impose an immediate concern for the physical safety of a student or others.
· clarify that a student in a time out room must be continuously monitored and that no student may be placed in a time out room unsupervised or unobserved.
· specify that the school district must inform the student’s parents prior to the initiation of a behavioral intervention plan that will incorporate the use of a time out room for a student and shall give the parent the opportunity to see the physical space that will be used as a time out room and provide parent with a copy of the school’s policy on the use of time out rooms.
The term “emergency use of physical restraints” was changed to “emergency interventions.” The program standards on the use of “emergency interventions” were revised to add documentation requirements when such interventions are used.