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Proposed Amendment to the Regulations of the Commissioner of Education Relating to Behavioral Interventions, Including the Use of Aversive Interventions
The revised proposed rule is presented for adoption as a permanent rule.  A fourth emergency adoption is also necessary to ensure that the June emergency rule, as revised, remains continuously in effect until the effective date of adoption of the permanent rule.  A statement of the facts and circumstances which necessitate emergency action is attached.
The public comment period for the initial publication of the proposed amendment closed on August 28, 2006.  Three public hearings were conducted in August 2006 (New York City, Albany and Syracuse).  The proposed amendment was subsequently revised in response to public comment and a Notice of Revised Rule Making was published in the State Register on November 15, 2006.  The public comment period for the revised proposed rule closed on December 15, 2006.
The purpose of the proposed amendment is to establish policy and general rules for behavioral interventions, including a prohibition on the use of aversive interventions.  The regulations establish a child-specific exception process whereby a panel of independent experts provide a recommendation to a committee on special education for a child-specific exception to the prohibition on the use of aversive interventions.  The regulations also establish standards for assessing student behaviors, developing and implementing behavioral intervention plans, emergency interventions, use of time out rooms and standards for programs using aversive interventions, as authorized through the child-specific exception process.
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.  In response to this comment, the following substantive revisions were made:
Ø      Section 19.5(b) was revised to define aversive intervention to mean an intervention intended to induce pain or discomfort to a student for the purpose of eliminating or reducing maladaptive behaviors, and to delete reference to certain aversive interventions.
Ø      Section 200.1(r) was revised to clarify that functional behavioral assessments (FBAs) must be developed consistent with the requirements in section 200.22(a), and to replace the term "effective" with "affective."
Ø      Section 200.1(lll) was revised for clarification and consistency to add a cross citation to the definition of "aversive interventions" in Regents Rules section 19.5(b)(2).
Ø      Section 200.1(mmm) was revised to add that behavioral intervention plan (BIP) strategies must include positive behavioral supports and services.
Ø      Section 200.7(b)(8) was revised to limit the use of aversive interventions through a child specific exception to school-age programs and prohibit without exception an approved preschool program from using aversive interventions.
Ø      Section 200.7(c)(6) was revised to limit the use of aversive interventions to programs having policies and procedures approved by the Department on or before June 30, 2007, and to clarify that failure to comply with this paragraph may result in revocation of approval to accept new admissions of New York students or termination of private school approval.
Ø      Section 200.22(b) was revised for clarification and consistency to add a cross citation to the definition of BIP in section 200.1(mmm).
Ø      Section 200.22(c) was revised to define time out room; to add specific minimum requirements for a school’s policies and procedures regarding time out rooms; to clarify that a time out room is to be used in conjunction with a behavioral intervention plan or for unanticipated situations that pose an immediate concern for the physical safety of a student or others; to add requirements regarding information that must be provided to parents; and to clarify that staff must continuously monitor the student in a time out room.
Ø      Section 200.22(d) was revised to change the term “emergency use of physical restraints” to “emergency interventions;” to define “emergency;” to clarify that emergency interventions may not be used as a punishment and may be used only in situations when other procedures and methods not involving physical force cannot be reasonably employed; to clarify training requirements for staff implementing emergency interventions; and to add documentation and reporting requirements when emergency interventions are used.
Ø      Section 200.22(e) was revised to:
·       authorize child specific exceptions for school-age students 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 granted a child specific exception in each subsequent year, unless the IEP is revised to no longer include such exception;
·       add that no child-specific exception shall be granted for a preschool student;
·       clarify that aversive interventions be considered only for students displaying self-injurious or aggressive behavior that threaten the physical well-being of the student or others, and only to address such behaviors;
·       add that no child-specific exceptions will be granted for certain aversive interventions;
·       clarify that the purpose of the independent panel is to provide a recommendation to a Committee on Special Education (CSE) as to whether a child-specific exception is warranted;
·       specify that the panel shall notify the school district of its recommendation for students whose current IEP does not include a child-specific exception within 15 business days of receipt of an application;
·       add that a Subcommittee on Special Education cannot make the determination to provide a child-specific exception;
·       require that the CSE request participation of the school physician member to any meeting where an aversive intervention is being considered;
·       require that the district provide a copy of the IEP to the Commissioner when it  includes aversive interventions;
·       clarify that the IEP must identify the self-injurious and/or aggressive behaviors to be targeted and any mechanical restraint devices to be used to provide the aversive intervention;
·       clarify that an application for a child-specific exception must be submitted annually; and
·       add that a district must submit a revised copy of the IEP to the Commissioner if it is amended to no longer include a child-specific exception.
Ø     Section 200.22(f)(1)(i) was revised to delete approved preschool programs from applicability provisions of this subdivision and to clarify that programs must be authorized by the Department to use aversive interventions.
Ø     Section 200.22(f)(2) was revised to clarify that no program may combine the simultaneous use on a student of a physical or mechanical restraint with another aversive intervention and to delete proposed qualifications for individuals who develop BIPs.
Ø     Section 200.22(f)(3) was revised to add that, in addition to the required members of the Human Rights Committee, the program or agency may appoint up to two additional individuals.
Ø      Section 200.22(f)(4) was revised to require that aversive interventions be administered by appropriately licensed professionals or certified special education teachers or under the direct supervision and direct observation of such staff; and that training be provided on a regular, but at least annual basis.
Ø      Section 200.22(f)(5) was revised to add that parents must be provided with a copy of the school's policies and procedures on the use of aversive interventions.
Ø      Section 200.22(f)(6) was revised to clarify that quality assurance reviews of incident reports regarding aversive interventions must be conducted periodically by the program providing such interventions.
Ø      Section 200.22(f)(7) was revised to require that a representative of a school district placing a student in a program that uses aversive interventions with the student, observe the student in the program at least every six months and, as appropriate, interview the student, communicate regularly with the parents and report the results to the CSE.
Ø      Section 200.22(f)(8) was revised to limit the schools that use aversive interventions to those that have their policies and procedures approved by the Department as of June 30, 2007.
Ø      Section 201.2(a), relating to the definition of behavioral intervention plan, was revised to add that intervention strategies to address the problem behavior must include positive behavioral supports and services.
Attached is a copy of the full text of the revised proposed terms of the rule.  In addition, assessments of public comment with respect to both the original rule published in the State Register on July 12, 2006, and the revised rule published on November 15, 2006, are attached.  Supporting materials for the proposed amendment are available upon request from the Secretary to the Board of Regents.
The fourth emergency adoption will become effective January 16, 2007 and the permanent adoption will become effective January 31, 2007.
As next steps, the Department will:
Issue a guidance document on the new regulatory requirements including guidance relating to the assessment of student behaviors; development, implementation and progress monitoring of behavioral intervention plans; and the use of time out rooms and emergency interventions.
continue to enhance the capacity of instate programs to serve students with significant behavioral needs and establish new programs for students with severe developmental disabilities; and
develop a proposal for regional centers that would provide short-term intensive evaluation and behavioral intervention placements for students exhibiting severe behavior disorders. Students could be recommended by their Committees on Special Education for interim placements (e.g., three to six months) at these Centers to receive a comprehensive functional behavioral assessment, development and implementation of behavioral intervention program to significantly reduce problem behaviors, and transition support to return students to prior school placements or other less restrictive placements.
It is recommended that the Board of Regents take the following action:
VOTED:  That section 19.5 of the Rules of the Board of Regents be amended; that subdivision (r) of section 200.1 of the Regulations of the Commissioner be amended; that new subdivisions (lll) and (mmm) of section 200.1 of the Regulations of the Commissioner be added; that subparagraph (i) of paragraph (3) of subdivision (d) of section 200.4 of the Regulations of the Commissioner be amended; that subparagraph (i) of paragraph (2) and subparagraph (iv) of paragraph (3) of subdivision (a) of section 200.7 of the Regulations of the Commissioner be amended; that a new paragraph (8) of subdivision (b) and a new paragraph (6) of subdivision (c) be added to section 200.7 of the Regulations of the Commissioner; that a new section 200.22 be added to the Regulations of the Commissioner; and that subdivision (a) of section 201.2 of the Regulations of the Commissioner be amended, as submitted, effective January 16, 2007, as an emergency action upon a finding by the Board of Regents that such 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.
VOTED:  That section 19.5 of the Rules of the Board of Regents be amended; that subdivision (r) of section 200.1 of the Regulations of the Commissioner be amended; that new subdivisions (lll) and (mmm) of section 200.1 of the Regulations of the Commissioner be added; that subparagraph (i) of paragraph (3) of subdivision (d) of section 200.4 of the Regulations of the Commissioner be amended; that subparagraph (i) of paragraph (2) and subparagraph (iv) of paragraph (3) of subdivision (a) of section 200.7 of the Regulations of the Commissioner be amended; that a new paragraph (8) of subdivision (b) and a new paragraph (6) of subdivision (c) be added to section 200.7 of the Regulations of the Commissioner; that a new section 200.22 be added to the Regulations of the Commissioner; and that subdivision (a) of section 201.2 of the Regulations of the Commissioner be amended, as submitted, effective January 31, 2007.