More information about the NYS regulations for AVERSIVE punishments.......

URGENT ACTION ALERT FOR PARENTS IN NEW YORK:

A new set of "emergency" education regulations have been approved by the Board of Regents concerning the use of corporal punishment, aversives, restraints and time out rooms for children and teens with disabilities in every school and pre-school building in New York State. The new regulations make it acceptable for school districts, BOCES, the NYC DOE's District 75, state-approved private special education schools and the NYS Schools for the Blind (Batavia) and Deaf (Rome) to do things in the name of behavior modification or management which may be physically dangerous for some kids and emotionally traumatic for many others.

There are already at least 23 school districts in NYS currently recommending the use of aversive behavioral interventions for disabled students, and probably many more already using aversive behavioral interventions without documenting what they have been doing to disabled children. These regulations need to be approved again at the Board of Regents meeting scheduled for September 11-12 in Albany. You can read the new regulations online or get them in pdf format from this site. You have an opportunity to respond to these new regulations. See the State's notice on how to provide feedback and deadlines for providing feedback.


As background on the new regulations: the NYS Education Department (NYSED) originally proposed regulations that would have simply barred the use of electric skin shock and other aversive behavioral interventions, such as those used by the Judge Rotenberg Center (JRC) school in Massachusetts. JRC routinely uses painful electric skin shocks and restraints on children to change their behavior. The majority of students at JRC are from NYS, and the majority of those are from New York City schools. Some of these children are diagnosed with Attention Deficit Hyperactivity Disorder, autism, Bipolar Disorder, Tourette's Syndrome, and Obsessive-Compulsive Disorder. Many of them are classified under the IDEA classification "Emotionally Disturbed." JRC is a strictly behaviorism-based school, which means that they do not consider the biological or neurological basis of behavior and only focus on consequences. Children who are determined to "need" aversive controls wear shock devices so that JRC staff can deliver shocks by pushing a remote switch. You can read what NYSED observers found when they made an unannounced site visit to JRC in May of this year. JRC has parents who truly believe that their children need and are benefiting from JRC's approach. When NYSED tried to bar the use of these procedures, the parents and JRC began lobbying to overturn the recommendations. Instead of realizing that you don't open Pandora's box for millions of kids to meet the needs of a few kids, NYSED amended its proposed regulations and then amended them again. Ultimately, instead of barring electric shock and other really noxious or aversive techniques, the final regulations now make it possible to do these things to disabled kids in all NYS schools but without the protections that are essential to protect the health and safety and rights of impaired children. As per the new approved regulations: Corporal punishment is barred -- except that a teacher can use restraint and physical force on a child to protect the school's property or to remove the child or stop the child from interfering with a school function - even if the property is a 3-cent crayon and even if what the child is doing is a symptom of their disability (e.g., perseveratively asking questions or repeatedly tapping the crayon on the desk).

Children can be put in time out rooms with no specific requirements as to the staff training required for the person who monitors the child while the child is in the room, no medical assessment to see if time out would be dangerous for the child, no psychological assessment to determine if time out would be traumatic for the child, and no limit on how long a child can be put in time out for. Other "aversive behavioral interventions" that school personnel may now use if they obtain a "waiver" include putting a child out in the cold without adequate clothing, withholding essential hydration or nutrition, using noxious sprays in the child's face or making them inhale noxious scents, depriving them of sleep, and using "deep muscle squeezes." School districts can obtain waivers to use "aversive behavioral interventions" on students by applying to the Commissioner of Education's office, who will send the request to an "expert panel" who will review the records. The panel then advises the Commissioner and the district, but it is up to the child's Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE) to decide whether to grant itself the waiver. Thus, the very same people who may have failed to order helpful diagnostic evaluations or related services may now approve the use of aversive behavioral interventions on a child. The new regulations do not mandate that any child being recommended for aversive behavioral interventions must have a psychiatric evaluation or a neurological evaluation at public expense before the CSE or CPSE can recommend or implement an aversive behavioral intervention. Note that NYSED is the only NYS government agency which sends kids to the JRC. Other agencies (Office of Mental Health, Office of Mental Retardation & Developmental Disabilities; Office of Children's & Family Services) are not allowed to do so because JRC uses painful aversives such as electric shock to the skin. With the new regulations, NYSED has just opened the door to more children being exposed to potentially ineffective and dangerous treatments at the hands of undertrained and underqualified personnel.

Disabled children and teens require more protections when aversive behavioral interventions are implemented in school settings, not fewer protections. At the very least, NYSED should have incorporated all relevant federal protections. It didn't. At the very least, NYSED should have required medical and independent psychological or psychiatric evaluations of each student being considered for aversive behavioral interventions. It didn't. NYSED didn't even consult with relevant professional organizations within New York. Could it be that they knew that all genuine professional organizations would have told them that these proposals were dangerous and inconsistent with federal protections for disabled youth? Why These Regulations are Dangerous Federal regulations require that the use of any restraints or time out/seclusion rooms for children be medically/physically safe: that physicians or nurses be on site where they are being used and evaluate the children's safety while they are being used, and to check on the kids afterwards. NYSED's regulations require none of these safeguards. Some children are medically or physically fragile: inappropriate use of restraints on them can, unfortunately, kill. Some children are on medications that make them more sensitive to heat. These children might die in hot time out rooms. Why hasn't NYSED written more protections into the regulations?


The US Department of Health's Substance Abuse and Mental Health Services Administration started a campaign to eliminate the use of restraints and time out/seclusion rooms in all institutions, residences and facilities in the US which deal with persons who have mental illness. Why is NYSED going in the opposite direction? In 2003, the President's New Freedom Commission on Mental Health issued its final report and stated: "An emerging consensus asserts that the use of seclusion and restraint in mental health treatment settings creates significant risks for adults and children with psychiatric disabilities. These risks include serious injury or death, re-traumatizing people who have a history of trauma, loss of dignity, and other psychological harm. Consequently, it is inappropriate to use seclusion and restraint for the purposes of discipline, coercion, or staff convenience. Seclusion and restraint are safety interventions of last resort; they are not treatment interventions." (emphasis added) Despite federal regulations and the policies of federal commissions and agencies, NYSED's regulations do just the opposite: they approve of the use of seclusion and restraints as planned consequences of behavior and not just for safety emergencies. Similarly, federal regulations state that restraint and seclusion used for safety emergencies must be terminated as soon as the emergency is over. NYSED's regulations not only specifically allow the planned use of restraints, seclusion, and aversives as punishment for behavior or symptoms that are not emergency situations, but they do not require that the restraint or seclusion end as soon as an emergency is over. NYSED's regulations have no time limits: any child, of any age, can be locked into a time out room any number of times per day for any length of time. Or for all day. Federal regulations require that staff who use restraints be thoroughly trained in research-validated methods or programs of behavioral crisis defusing and safe physical restraints. NYSED's regulations allow districts to have staff trained in whatever methods or programs they choose, with no specifications as to amount of training, level of training, or length of training. Nor does NYSED mandate that staff who use restraints be certified by any program as being competent to do so.

In New York State, we have already had cases involving misuse and abuse of time out rooms, despite the fact that NYSED has had time out room guidance policies since 1994. NYSED does not actually inspect and monitor time out rooms to insure that they are large enough, properly equipped, and appropriately air conditioned or heated. As examples of time out room misuse and abuses: A special education student was punished on twenty-two occasions by being place in a small locked room with no supervision. On one occasion, the student was found on the floor of the room after having suffered an apparent seizure. In another case, a child clawed his fingers bloody trying to get out of a time room; In yet another case, a young child with autism "included" in a regular class for part of the day was thrown into a time out room whenever he didn't sit down and do his assigned work quietly; the district had performed no Functional Behavior Assessment, and had no positive behavior supports for the child in the regular education setting. While federal regulations require that each use of restraints and time out rooms be analyzed by staff and discussed with the child soon after the incident is over, to work out ways to avoid the use of restraints and time out rooms in the future, no such "debriefing" is required in NYS schools. These can just be done again, and again, and again. NYSED receives numerous complaints about time out room misuse and abuses, but has done nothing, and we have no reason to believe that they will now monitor or enforce the new regulations on time out rooms. Although the regulations state in one place that informed parental consent is required for the use of aversive behavioral interventions, parents' rights are diminished by another statement in the new regulations that state that parents will be "notified" if time out rooms will be used as part of their child's educational program.

The new regulations allow any regular or special education teacher to order any child with a disability to be restrained, removed from class, and put into a time out room for any "disruptive" behavior at all, including the mild verbal tic of a child with Tourette Syndrome or the hand-flapping of a child with autism. All the teacher has to do is ask the child to stop: if the child does not do so - including when the child cannot do so because the behavior is a symptom of a disability - the teacher can just decide that out the child goes, and that's that. Essentially, this can be used to end real inclusion for any child with a disability who has a mainstream teacher who is irritated by the child's symptoms. NYSED has not mandated that special education staff - school psychologists, special ed. teachers, counselors, special ed administrators - be trained regarding the biological causes of behavior, nor in the research-validated methods for safe, effective behavior modification and management. Nor does NYSED even disseminate information to schools about research-validated methods. In research that they did not make public on their web site, NYSED's attempt to use Positive Behavioral Interventions and Supports (PBIS) was a total failure - despite the fact that PBIS has been successful in other states. Rather than working in improving its design and implementation of PBIS, however, NYSED is now going to allow schools to use aversive behavioral interventions. NYSED should get the positive supports done right first.


NY's outcomes for students classified as "emotionally disturbed" are extremely poor. These kids are suspended at a rate 2-1/2 times higher than are all disabled kids as a group. They graduate with any kind of diploma 10% less often than do kids classified as emotionally disturbed nationally. Rigorous, thorough training of NYS education personnel must be mandated before they are allowed to recommend, and use, aversives, restraints and time out rooms. Until the time this is carried out, all of the protections and procedural requirements the federal government requires be provided to kids with mental illness or developmental disabilities in Medicaid-funded facilities should be applied to the same kids when they are in NYS schools. To require less is, simply, to endanger their lives and their emotional well-being. What You Can Do Read the new regulations and then make your voice heard. You can provide oral or written testimony. See the State's notice on how to provide feedback and deadlines for providing feedback. Although oral testimony is helpful, try to write up something that you submit as well: Send a letter to the Regent for your area. A list of Regents and their addresses is provided here. As a suggestion, in your letter: State that you want these regulations withdrawn. If you are part of an organization, try to get an official statement on letterhead that represents your organization's view and send a copy of it to NYSED as well. The mailing address is included in the State's notice on feedback. State that restraint and seclusionary time out rooms should be barred for everything except health and safety emergencies, and that in any future drafts of regulations, you want all federal protections that apply to restraint and seclusion included. The federal protections are described in 42 CFR Ch. IV Subpart G. If your child has suffered because of the inappropriate use of aversives, time out, or restraint, tell the Regent what happened to your child as part of explaining why you want greater protections for health and safety in the regulations. Send a copy of your letter to NYSED. And please send a copy to me by email (see below) as we are beginning to try to compile examples of abuses in schools. State that you want NYSED to disseminate information on research-validated methods to address behavior problems to all schools in NYS. State that you want teachers and school personnel to be provided with more training on the causes of behavior and research-validated methods for managing behavior and symptoms in schools. State that any new regulations concerning the use of restraint must mention specific research-validated methods for crisis defusing and restraint (e.g., SCIP-R) and that it should not be up to school districts to set minimum levels of training and certification in crisis management and restraint. Insist that no new regulations be passed without time for public review and comment before the Regents vote on any issue concerning disabled students.