NYSED Navigation • NYSED HOME •  SEARCH • TOPICS A-Z • CONTACT NYSED
 

Vocational and Educational Services for Individuals with Disabilities (VESID)
Special Education and Vocational Rehabilitation Services

---

Available in PDF Format for Printing      

 

June 22, 2006

 

 

TO:                  District Superintendents

            Superintendent of Schools

            Presidents of Boards of Education

            Superintendents of State-Operated and State-Supported Schools

Executive Directors of Approved Private Schools

New York City Board of Education

Organizations, Parents and Individuals Concerned with Special Education

Commissioner's Advisory Panel for Special Education Services

SETRC Program Development Specialists

Regional School Support Centers

Impartial Hearing Officers

Mediators

Other State Agencies

FROM:                 James P. DeLorenzo

 

SUBJECT:    New requirements for behavioral intervention plans, including the use of aversive behavioral interventions

 

            The Board of Regents, at their June 2006 meeting, approved the emergency adoption of amendments to the Rules of the Board of Regents and the Regulations of the Commissioner of Education, effective June 23, 2006.  These regulations:

 

·     Establish general standards for behavioral interventions, including assessments of student behavior, behavioral intervention plans, the use of time out rooms and emergency physical interventions.

 

·       Set a general prohibition on the use of aversive behavioral interventions, with a provision and procedures for a child-specific exception to this prohibition.

 

·       Establish standards for programs that provide aversive behavioral interventions as approved on a child-specific basis.

 

Attached is a summary of the amendments to the regulations that were adopted at the June Regents meeting.   A more comprehensive guidance document will be forthcoming. A full copy of the amendments may be found at http://www.vesid.nysed.gov/specialed/timely.htm .

All schools should carefully review these new requirements and take steps to revise policies and procedures to align with the new standards for behavioral interventions. 

·     Effective June 23, 2006, all schools must take steps to review and revise their procedures consistent with the new standards for functional behavioral assessments, behavioral intervention plans, use of time out rooms and emergency interventions. These standards are essential to ensure that all schools appropriately assess and address student behaviors consistent with the requirements of the Individuals with Disabilities Education Act (IDEA). 

 

·     Effective June 23, 2006, schools using aversive behavioral interventions must take steps to revise their procedures consistent with the standards for the use of aversive behavioral interventions. By August 15, 2006, programs using aversive behavioral interventions must submit to the State Education Department (SED) their revised procedures consistent with the new standards.

 

·      As of the effective date of the regulations, aversive behavioral interventions will be prohibited for all New York State (NYS) students except as follows:

 

o      For students whose individualized education programs (IEPs) currently indicate the need for aversive behavioral interventions, such interventions would be allowed to continue (unless the Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE) revises the IEP).  For these students, requests for child-specific exceptions must be submitted by October 1, 2006.

 

o      Effective on or after October 1, 2006, a request by a school district for a child-specific exception must be submitted to the Commissioner prior to a CSE/CPSE recommendation for aversive behavioral interventions.

 

·     As of the effective date of the regulations (June 23), no program may use the combination of physical/mechanical restraints and another aversive intervention (e.g., mechanical restraints while administering shock).  No program may use an automated aversive conditioning device.

 

·       By October 1, 2006, SED will have the independent panel and procedures for the child-specific exception in place for the timely review of any requests for aversive behavioral interventions as an exception to the Regents prohibition. 

To ensure dissemination to appropriate individuals within a school district, I ask Superintendents to please share this memorandum with other individuals such as Building Principals, Directors of Special Education, School Psychologists, CSE and CPSE Chairpersons, Guidance Counselors and Directors of Pupil Personnel. 

Questions regarding this memorandum may be directed to the Special Education Policy and Partnerships Unit at 518-473-2878 or to the Special Education Quality Assurance Office in your region:

 

Central Regional Office	(315) 428-3287
Eastern Regional Office	(518) 486-6366
Hudson Valley Regional Office	(914) 245-0010
Long Island Regional Office	(631) 884-8530
New York City Regional Office	(718) 722-4544
Western Regional Office	(585) 344-2002

 

Summary of Amendments to the Regulations of the Commissioner of Education

Amendments to the Regulations of the Commissioner of Education

 

---

Summary of Amendments to the Regulations of the Commissioner of Education

Effective June 23, 2006

BEHAVIORAL INTERVENTIONS, INCLUDING THE USE OF AVERSIVE BEHAVIORAL INTERVENTIONS

I.     Prohibition of corporal punishment and certain behavioral interventions

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

·       The prohibition of corporal punishment applies to a teacher, administrator, officer, employee or agent of a school district in this State, a board of cooperative educational service (BOCES), a charter school, a 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.

·       The use of aversive behavioral interventions is prohibited for use in public schools, BOCES, approved private schools, State-operated or State-supported schools, approved out-of-State day or residential schools and registered nonpublic nursery, kindergarten, elementary or secondary schools in this State.

·       Aversive behavioral interventions are defined to mean:

o     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;

o      any form of noxious, painful or intrusive spray, inhalant or tastes;

o      withholding sleep, shelter, bedding, bathroom facilities or clothing;

o     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;

o   movement limitation used as a punishment, including but not limited to helmets and mechanical restraint devices;

o      the placement of a child unsupervised or unobserved in a room from which the student cannot exit without assistance; or

o      other stimuli or actions similar to the interventions described above.

·       Aversive behavioral interventions do 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 similar interventions.

II.        Child-specific exception to the prohibition on the use of aversive  behavioral interventions.

·      Section 19.5 of the Rules of the Board of Regents allows for a child-specific exception to the prohibition on the use of aversive behavioral interventions.

·       Section 200.22(e) of the Regulations of the Commissioner of Education establishes the procedures for a child-specific exception to use aversive behavioral interventions to reduce or modify student behaviors.

o     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 is warranted, the school district must submit an application to the Commissioner of Education for a child-specific exception. 

o     For any student with an IEP in effect prior to October 1, 2006 that includes the use of aversive behavioral interventions, the school district must submit an application to the Commissioner of Education for a child-specific exception prior to the next scheduled review of the student's IEP, but not later than October 1, 2006.

o     The Commissioner will refer the application to an independent panel of experts appointed by the Commissioner or Commissioner's designee.  The panel will be comprised of three professionals with appropriate clinical and behavioral expertise to make such determinations.

o      The panel will review the written application, the student's IEP, the student's diagnosis, 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.

o      The panel will make a recommendation to the student's CSE or CPSE as to whether a child-specific exception is warranted within 15 business days_[1]. 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 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.

o      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. 

o     The CSE or CPSE must, based on its consideration of the recommendation of the panel, determine whether the student's IEP will include a child-specific exception allowing the use of aversive behavioral interventions.  The school district must notify the Commissioner when a child-specific exception has been included in the student's IEP.

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

§       behavior(s) to be targeted by use of the aversive intervention;

§       aversive behavioral intervention(s) to be used to address the behavior(s); and

§       aversive conditioning device(s) where the aversive behavioral intervention(s) include the use of such devices.

o      A parent must provide informed written consent for the use of the aversive behavioral interventions.

o      An exception to the child-specific exception shall be in effect only during the school year for which such IEP applies.

o    If the CSE or CPSE amends the student's IEP to no longer permit the aversive behavioral intervention, the school district does not need to notify the Commissioner.

·       For an education program operated by another State agency, if any of the above rules relating to the use of aversive behavioral interventions conflicts with the rules of the respective State agency operating the education program, the rules of that State agency shall prevail and the conflicting provision of section 200.22(e) of the Regulations of the Commissioner of Education shall not apply.

·       These rules do not authorize a school or agency to provide aversive behavioral interventions that are otherwise prohibited by the State agency licensing a program.

·       Any program providing aversive behavioral interventions must meet the standards established in section 200.22(f) of the Regulations of the Commissioner of Education.

III.     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 emergency use of physical restraints.

Assessment of student behaviors

 

·       Functional behavioral assessments (FBA) must be conducted as required in section 200.4 and section 201.3 of the Regulations of the Commissioner of Education. 

 

·       Section 200.1(r) of the Regulations of the Commissioner of Education defines FBA to mean the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment.  The FBA includes, but is not limited to:

 

o      identification of the problem behavior;

 

o      definition of the behavior in concrete terms;

 

o   identification of the contextual factors that contribute to the behavior (including cognitive and affective factors); and

 

o      formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it.

 

·       The FBA must, as appropriate, be based on multiple sources of data including, but not limited to:

 

o      information obtained from direct observation of the student;

 

o      information from the student, the student’s teacher(s) and/or related service provider(s): and

 

o      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 cannot be based solely on the student’s history of presenting problem behaviors.

 

·       The FBA must provide:

 

o     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

 

o      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. 

 

Behavioral intervention plans

 

·       The CSE or CPSE must consider the development of a behavioral intervention plan for a student with a disability:

 

o     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; 

o      when the student’s behavior places the student or others at risk of harm or injury; 

o    when the CSE or CPSE is considering more restrictive programs or placements as a result of the student’s behavior; and 

o      as required pursuant to section 201.3 of this Regulations of the Commissioner of Education relating to discipline procedures for students with disabilities.

 

·       In the case of a student whose behavior impedes his or her learning or that of others, the CSE or CPSE must 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 must be documented in the IEP and the behavioral intervention plan must be reviewed at least annually by the CSE or CPSE. 

 

·       Unless a child-specific exception for the use of aversive behavioral interventions has been provided by the CSE or CPSE after review by the panel's recommendation, a behavioral intervention plan shall not include the use of aversive behavioral interventions.