Until the adoption of emergency regulations, effective June 23, 2006, neither New York State Education Law nor the Regulations of the Commissioner of Education prohibited the use of aversive interventions in school programs serving New York State students. Aversive interventions have the potential to affect the health and safety of children, yet there was a lack of a clear policy and no standards on their use in school programs. Through site visits, reports and complaints filed by parents, school districts and others, the Department identified concerns with preschool programs serving children with disabilities that use aversive interventions such as sprays to the face and noxious tastes placed on the child's lips, and an out-of-state residential school serving more than 145 New York State students with disabilities that is using contingent food programs, mechanical restraints and electric shock interventions to modify students' behaviors. A recent site review of the out-of-state residential school identified significant concerns for the potential impact on the health and safety of New York's students placed at this school. Regulations are needed to limit the aversive interventions that inflict pain and discomfort to children and have the potential to result in physical injury and/or emotional harm. In those exceptional instances when a child displays such extreme self-injurious or aggressive behaviors as to warrant a form of punishment to intervene with the behavior, regulations are necessary to ensure that such interventions are used in accordance with the highest standards of oversight and monitoring and in accordance with research-based practices.

The proposed rule was adopted as an emergency measure at the June 2006 meeting of the Board of Regents, effective June 23, 2006, upon a finding by the Board of Regents that such action is necessary for the preservation of the public health and safety in order 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 standards for the use of such interventions that will ensure they are used only when absolutely necessary and under conditions of minimal intensity and duration to accomplish their purpose. A Notice of Emergency Adoption and Proposed Rule Making was filed with the Department of State on June 23, 2006 and was published in the State Register on July 12, 2006. Subsequent emergency adoptions were taken at the September 11-12, 2006 and the October 23–24 Regents meetings to keep the rule continuously in effect until the effective date of the rule's adoption on a permanent basis.

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. The proposed amendment was subsequently revised in response to the comments and a Notice of Revised Rule Making was published in the State Register on November 15, 2006. The proposed amendment, as revised, is being presented to the Board of Regents for adoption as a permanent rule at their January 8–9, 2007 meeting, which is the first scheduled meeting after expiration of the 30-day public comment period for revised rules established by the State Administrative Procedure Act (SAPA.)

However, pursuant to SAPA section 202(6)(b), the October 2006 emergency adoption will expire on January 15, 2007, sixty (60) days after the date of its filing with the Department of State. A fourth emergency 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.

Section 19.5(a)(1) of the Rules of the Board of Regents, as amended, provides that no teacher, administrator, officer, employee or agent of a school district in New York State (NYS), a board of cooperative educational services (BOCES), a charter school, a State-operated and 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 in this State, shall use corporal punishment against a pupil.

Section 19.5(b) of the Rules of the Board of Regents, as amended, establishes a prohibition on the use of aversive interventions, except as provided by a child-specific exception pursuant to proposed section 200.22(e) of the Commissioner's Regulations, and defines the term ‘aversive intervention.’

Section 200.1(r) of the Commissioner's Regulations, as amended, revises the definition of functional behavioral assessment to cross reference the requirements in section 200.22(a).

Sections 200.1(lll) and (mmm) of the Commissioner's Regulations, as added, provide, respectively, definitions of the terms ‘aversive intervention’ and ‘behavioral intervention plan.’

Section 200.4(d)(3)(i) of the Commissioner's Regulations, as amended, provides that the CSE or CPSE shall, in developing a student's IEP, consider supports and strategies to address student behaviors that are consistent with the requirements in section 200.22.

Section 200.7(a)(2)(i)(f) of the Commissioner's Regulations, as added, provides that conditional approval of private schools to serve students with disabilities shall also be based on submission for approval of the school's procedures regarding behavioral interventions, including, if applicable, procedures for the use of aversive interventions.

Section 200.7(a)(3)(iv) of the Commissioner's Regulations, as amended, provides that a school may be removed from the list of approved schools five 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, 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 provided pursuant to section 200.22(e) or that an approved private school is using aversive interventions in a manner inconsistent with the standards as established in section 200.22(f).

Section 200.7(b)(8) of the Commissioner's Regulations, as added, provides that except as provided in section 200.22(e), an approved private school, a State-operated school or a State-supported school is prohibited from using corporal punishment and aversive interventions to reduce or eliminate maladaptive behaviors of students; and prohibits an approved preschool program from using aversive interventions with preschool students with disabilities without exception.

Section 200.7(c)(6) of the Commissioner's Regulations, as added, requires a private school that proposes to use or continue to use aversive interventions in its program to submit its written policies and procedures on behavioral interventions to the Department; provides that only those programs 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; and provides that 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(a)(3).

Section 200.22 of the Commissioner's Regulations, as added, establishes program standards for behavioral interventions. This section further provides that for an education program operated pursuant to section 112 of the Education Law and Part 116 of the Regulations of the Commissioner of Education, if a provision of section 200.22 relating to use of time out rooms, emergency use of physical restraints, or aversive interventions conflicts with the rules of the respective State agency operating such program, the rules of such State agency shall prevail and the conflicting provision of section 200.22 shall not apply.

Section 200.22(a) establishes requirements for the conduct of a functional behavioral assessment to assess student behaviors.

Section 200.22(b) establishes requirements for behavioral interventions for students with disabilities.

Section 200.22(c) establishes requirements regarding the use of time out rooms.

Section 200.22(d) establishes requirements for the use of emergency interventions, including requirements to document the emergency intervention and notify the student's parent.

Section 200.22(e) establishes the process for a child-specific exception to the Regents prohibition on the use of aversive interventions. A child-specific exception may be granted for a school-age student, in accordance with the procedures outlined in the subdivision, only during the 2006–2007, 2007–2008 and 2008–2009 school years; provided that a student whose individualized education program (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. This subdivision also provides timelines and procedures for an independent panel of experts appointed by the commissioner or commissioner's designee to make a recommendation to the CSE and to the Commissioner as to whether a child-specific exception is warranted.

Section 200.22(f)(1) sets forth applicability provisions for the requirements set forth in the subdivision.

Section 200.22(f)(2) establishes general requirements for programs that employ the use of aversive interventions.

Section 200.22(f)(3) requires each school that uses aversive interventions to establish a Human Rights Committee to monitor the school's behavior intervention program to ensure the protection of legal and human rights of individuals.

Section 200.22(f)(4) establishes supervision and training requirements for persons who use aversive interventions.

Section 200.22(f)(5) states that 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 interventions.

Section 200.22(f)(6) requires the program to conduct quality assurance reviews of its use of aversive interventions, including a review of all incident reports relating to such interventions.

Section 200.22(f)(7) provides for ongoing monitoring of student progress in programs using aversive interventions; and requires a school district that places a student in such a program to: oversee the student's education and behavior program, including review of written progress monitoring and incident reports; conduct observations of, and, as appropriate, interviews with the student at least once every six months; regularly communicate with the student's parent; and convene a CSE meeting at least every six months to review the student's educational program and placement.

Section 200.22(f)(8) requires each school that proposes to use aversive interventions pursuant to the child-specific exception in 200.22(e) to submit its policies and procedures consistent with the standards in this section to the Department for approval prior to the use of aversive interventions; and only schools with policies and procedures approved by the Department on or before June 30, 2007 shall be authorized to use such interventions.

Section 201.2(a) proposes to amend the definition of behavioral intervention plan to add that the strategies must include positive behavioral supports and services to address the behavior.

STATUTORY AUTHORITY:

Education Law section 207 empowers the Regents and Commissioner of Education to adopt rules and regulations to carry out State education laws and functions and duties conferred on the Education Department by law.

Section 210 authorizes the Regents to register institutions in terms of New York standards.

Section 305(1) and (2) provide the Commissioner, as chief executive officer of the State education system, with general supervision over schools and institutions subject to the provisions of education law, and responsibility for executing Regents policies. Section 305(20) authorizes the Commissioner with such powers and duties charged by the Regents.

Section 4401 authorizes the Commissioner to approve private day and residential programs to serve students with disabilities.

Section 4402 establishes school district duties for education of students with disabilities.

Section 4403 outlines Department and school district responsibilities concerning education programs and services to students with disabilities. Section 4403(3) authorizes the Department to adopt rules and regulations as the Commissioner deems in their best interests.

Section 4410 outlines education services and programs for preschool children with disabilities. Section 4410(13) authorizes the Commissioner to adopt regulations.

LEGISLATIVE OBJECTIVES:

The rule carries out the above objectives to ensure that students with disabilities are provided a free appropriate public education, including behavioral assessments and interventions consistent with federal law.

NEEDS AND BENEFITS:

The rule is necessary to establish standards for behavioral interventions, including a prohibition on use of aversive interventions (AIs); to provide for a child specific exception; and to establish standards for programs using ABIs. The rule ensures that ABIs are used only when necessary; in accordance with research-based practices; under conditions of minimal intensity and duration to accomplish their purpose; and in accordance with the highest standards of oversight and monitoring.

The rule is, in part, based on the following studies.

“On the Status of Knowledge for Using Punishment: Implications for Treating Behavior Disorders,” Dorothea C. Lerman and Christina M. Vorndran, Louisiana State University and the Louisiana Center for Excellence in Autism (Journal of Applied Behavior Analysis, 2002, 35, 431–464). This report, highlighting research findings relating to use of punishment to treat problem behaviors, was considered in developing standards for ABIs, including that ABIs be combined with reinforcement procedures; include procedures for generalization and maintenance of behaviors and for fading ABI use; be limited to behaviors of greatest concern; apply the lowest intensity and duration; employ strategies that increase the effectiveness of mild levels of ABIs; and use alternative procedures other than increasing an ABI's magnitude when an aversive fails to suppress a behavior over time. The report discussed ethical and practical issues surrounding use of punishers to change behaviors and side effects of punishment including collateral effects as emotional reactions, and increases in aggressive and/or escape behaviors. The criteria to be used by the independent panel is based, in part, upon information in this study that ABIs may be indicated when the variables maintaining a problem behavior cannot be identified; when problem behavior must be suppressed rapidly to prevent serious physical harm; or when other interventions have not reduced self-injurious behavior to clinically acceptable levels without use of punishment-based interventions.

“Establishing and Maintaining Treatment Effects with Less Intrusive Consequences Via a Paring Procedure”, Christina M. Vorndran and Dorothea C. Lerman, Louisiana State University (Journal of Applied Behavior Analysis, 2006, 39, 35–48) discussed the need to design interventions using punishment to be the least intrusive possible and to include strategies to improve an ABI's effectiveness and acceptability. This study was considered in proposing standards that ABIs be implemented consistent with peer-reviewed research based practices; include individualized procedures for the generalization and maintenance of behaviors and for the fading of ABI use; and employ strategies to increase the effectiveness of mild levels of ABIs.

“Contingent Electric Shock (SIBIS) and a Conditioned Punisher Eliminate Severe Head Banging in a Preschool Child”, Sarah-Jeanne Salvy, James A. Mulick, Eric Butter, Rita Kahng Bartlett and Thomas R. Linscheid, (Behavioral Interventions, 2004, 19:59–72), published online in Wiley InterScience (www.interscience.wiley.com), which discussed strategies that increase the effectiveness of mild levels of ABIs, was considered in establishing standards for ABI use.

“School-wide Positive Behavior Support Implementer's Blueprint and Self-Assessment” (Center on Positive Behavioral Interventions and Supports, University of Oregon, 2004), which discussed research findings relating to negative side effects associated with the exclusive use of punishing environments and consequences, and “Why Must Behavior Intervention Plans Be Based on Functional Assessments?”, G. Roy Mayer, California State University, Los Angeles, 1997 (published online at ww.calstatela.edu/academic/adm_coun/docs/501/funcart.html) were considered in proposing standards for assessing and addressing collateral effects of the use of punishment. These studies identified that punishment-based interventions can lead to students engaging in aggressive and/or escape behaviors and foster development of negative attitudes toward self and school programs. Mayer's article also identified that when reinforcement approaches are used to reduce behavior that match the function or reasons for the behavior, they are “just as effective as punishment approaches when used on self-injurious behavior of individuals with disabilities.” Mayer's finding was considered in proposing the requirement that ABIs be combined with reinforcement procedures, as individually determined based on an assessment of the student's reinforcement preferences.

“Physical Restraint in School”, Joseph B. Ryan and Reece L. Peterson, University of Nebraska-Lincoln, 2005, which discusses research, court and Office of Civil Rights rulings on individual rights of students, restraint procedures and professional training for emergency interventions, including the use of physical restraint in educational settings, was considered in proposing policy and standards for emergency physical restraint interventions.

“Functional Behavioral Assessment: Policy Development in Light of Emerging Research and Practice”, W. David Tilly, Joseph Kovaleski, Glen Dunlap, Timothy Knoster, Linda Bambara, Donald Kincaid, (March 24, 1998), developed at request of National Association of State Directors of Special Education (NASDSE) and “A Practical Guide to Functional Behavioral Assessment” Margaret E. Shippen, Robert G. Simpson and Steven A Crites, (Teaching Exceptional Children, Vol. 35, No.5, pp.36–44, 2003, Council for Exceptional Children) were considered in the development of standards for functional behavioral assessments (FBAs) and behavioral intervention plans (BIPs).

COSTS:

a. Costs to State government: See costs to the State Education Department.

b. Costs to local governments: None.

c. Costs to regulated parties: School districts may incur minimal costs to duplicate materials to submit an application for a child-specific exception and for required observations (estimated at $200 per student) and CSE meetings at least every six months for students receiving aversive interventions (estimated at $1,000 per student). Currently, it is estimated that less than 30 school districts in New York State have students placed in schools using aversive interventions and most of these have only one student where such a recommendation currently appears on the student's IEP. Schools using aversive interventions may also incur additional administrative costs estimated at less than $8,000 annually for implementing the proposed standards, including staff training and convening Human Rights Committee meetings at least quarterly (e.g. administrative oversight, duplication and meeting costs estimated at $6,000 per year).

d. Costs to the State Education Department of implementation and continuing compliance: The cost of funding a three-member independent panel of experts to provide a recommendation regarding the need for a child-specific exception is estimated at approximately $230,000 for the first year. This calculation was based on approximately 100 requests for child-specific exceptions, at an estimated cost of $2,300 for each student. Additional costs for State administration and oversight of the child-specific exception, including duplication of materials for the panel are estimated at $10,000 annually. The annual costs of the review panel are expected to be less in subsequent years and after July 1, 2009 should diminish significantly. These costs may be offset if the CSE determines that a student no longer requires aversive interventions since the cost for one student currently placed in an out-of-state residential school for aversive interventions ranges from $281,180 to $329,970 per year.

LOCAL GOVERNMENT MANDATES:

Section 19.5(a) prohibits use of corporal punishment in school districts, BOCES, charter schools, State-operated or State supported schools, approved preschool programs, approved private schools, approved out-of-State day or residential schools, or in registered nonpublic nursery, kindergarten, elementary or secondary schools in the State.

Section 19.5(b) prohibits use of aversive interventions except pursuant to a child-specific exception pursuant to section 200.22(e) and (f).

Section 200.1(r) of the Commissioner's Regulations, as amended, revises the definition of FBA to cross reference the requirements in section 200.22(a).

Section 200.4(d)(3)(i) requires a CSE, in developing a student's IEP, to consider supports and strategies, including positive behavioral interventions, to address student behaviors that are consistent with program standards in section 200.22.

A CSE/CPSE shall conduct a FBA in accordance with section 200.22(a) and develop and implement a BIP in accordance with 200.22(b).

Each school, which uses a time out room as part of its behavior management approach, is subject to section 200.22(c) requirements.

Section 200.22(d) establishes requirements regarding emergency interventions. Section 200.22(e) provides that a child-specific exception to the prohibition of the use of aversive interventions may be granted for school-age students only during the 2006–2007, 2007–2008 and 2009–2010 school years; provided that a student whose IEP includes use of aversive interventions as of June 30, 2009 may be granted such 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. Whenever a CSE is considering whether a child-specific exception is warranted, the school district shall submit an application to the Commissioner for referral to an independent panel of experts. The CSE shall, based on its consideration of the recommendation of the panel, determine whether the student's IEP shall include a child-specific exception. The school district shall notify the Commissioner when such exemption has been included in the student's IEP. An IEP providing such exemption shall identify the specific targeted behaviors, aversive interventions to be used, and aversive conditioning devices where the aversive interventions include use of such devices.

Public schools, BOCES, charter schools, approved private schools, State-operated or State-supported schools in NYS and approved out-of-State day or residential schools are subject to section 200.22(f) program standards for use of aversive interventions. Each school using aversive interventions shall establish a Human Rights Committee pursuant to section 200.22(f)(3) to monitor the program. Persons using aversive interventions shall be supervised and trained pursuant to section 200.22(f)(4). Pursuant to section 200.22(f)(5), aversive interventions shall be provided only with the parent's informed written consent and no parent shall be required by the program to remove the student from the program if the parent refuses consent. Use of aversive interventions is subject to quality assurance reviews pursuant to section 200.22(f)(6) and the program shall provide for ongoing monitoring of student progress pursuant to section 200.22(f)(7), including quarterly written progress reports. A school district placing a student in such program shall ensure the student's IEP and BIP are being implemented. The CSE shall convene at least every six months to review the student's educational program and placement, including review of written progress monitoring and incident reports, at least annual observations of, and, as appropriate, interviews with the student and regular communication with the parent. Each school proposing to use aversive interventions pursuant to a child-specific exception shall submit its policies and procedures consistent with section 200.22(f) to the Department for approval prior to use.

Section 201.2(a) proposes to amend the definition of BIP to add that the strategies must include positive behavioral supports and services to address the behavior.

PAPERWORK:

CSEs must compile and submit student record information and school districts must submit an application for the child-specific exception. Currently there are approximately 23 school districts that have students recommended for aversive interventions.

DUPLICATION:

The rule will not duplicate, overlap or conflict with any other State or federal statute or regulation.

ALTERNATIVES:

The Department considered other states' experiences with statutes and/or regulations prohibiting ABIs in school programs, including definitions, child-specific exceptions and standards; conducted a review of the research literature; and sought expertise of individuals with credentials in behavioral psychology. The Department considered a full prohibition on the use of ABIs, but determined there may be exceptional circumstances in which a student may be displaying behaviors that threaten the health or safety of the student for which ABIs may be warranted.

FEDERAL STANDARDS:

The rule does not exceed any minimum federal standards.

COMPLIANCE SCHEDULE:

It is anticipated regulated parties will be able to achieve compliance with the rule by its effective date.

SMALL BUSINESSES:

The proposed rule is necessary to establish standards for behavioral interventions, including a prohibition on the use of aversive interventions for students with disabilities; to provide for a child specific exception to the prohibition on the use of aversive interventions; and to establish standards for programs using aversive interventions and do not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on small businesses. Because it is evident from the nature of the rule that it does not affect small businesses, no affirmative steps are needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis is not required and one has not been prepared.

LOCAL GOVERNMENTS:

The proposed rule applies to all public school districts, boards of cooperative educational services (BOCES) and charter schools in this State. Currently, there are approximately 23 school districts that have students recommended for aversive interventions.

COMPLIANCE REQUIREMENTS:

Section 19.5(a) prohibits use of corporal punishment in school districts, BOCES, charter schools, State-operated or State supported schools, approved preschool programs, approved private schools, approved out-of-State day or residential schools, or in registered nonpublic nursery, kindergarten, elementary or secondary schools in the State.

Section 19.5(b) prohibits use of aversive interventions except pursuant to a child-specific exception pursuant to section 200.22(e) and (f).

Section 200.1(r) of the Commissioner's Regulations, as amended, revises the definition of FBA to cross reference the requirements in section 200.22(a).

Section 200.4(d)(3)(i) requires a CSE, in developing a student's IEP, to consider supports and strategies, including positive behavioral interventions, to address student behaviors that are consistent with program standards in section 200.22.

A CSE/CPSE shall conduct a FBA in accordance with section 200.22(a) and develop and implement a BIP in accordance with 200.22(b).

Each school, which uses a time out room as part of its behavior management approach, is subject to section 200.22(c) requirements.

Section 200.22(d) establishes requirements regarding emergency interventions.

Section 200.22(e) provides that a child-specific exception to the prohibition of the use of aversive interventions may be granted for school-age students only during the 2006–2007, 2007–2008 and 2009–2010 school years; provided that a student whose IEP includes use of aversive interventions as of June 30, 2009 may be granted such 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. Whenever a CSE is considering whether a child-specific exception is warranted, the school district shall submit an application to the Commissioner for referral to an independent panel of experts. The CSE shall, based on its consideration of the recommendation of the panel, determine whether the student's IEP shall include a child-specific exception. The school district shall notify the Commissioner when such exemption has been included in the student's IEP. An IEP providing such exemption shall identify the specific targeted behaviors, aversive interventions to be used, and aversive conditioning devices where the aversive interventions include use of such devices.

Public schools, BOCES, charter schools, approved private schools, State-operated or State-supported schools in NYS and approved out-of-State day or residential schools are subject to section 200.22(f) program standards for use of aversive interventions. Each school using aversive interventions shall establish a Human Rights Committee pursuant to section 200.22(f)(3) to monitor the program. Persons using aversive interventions shall be supervised and trained pursuant to section 200.22(f)(4). Pursuant to section 200.22(f)(5), aversive interventions shall be provided only with the parent's informed written consent and no parent shall be required by the program to remove the student from the program if the parent refuses consent. Use of aversive interventions is subject to quality assurance reviews pursuant to section 200.22(f)(6) and the program shall provide for ongoing monitoring of student progress pursuant to section 200.22(f)(7), including quarterly written progress reports. A school district placing a student in such program shall ensure the student's IEP and BIP are being implemented. The CSE shall convene at least every six months to review the student's educational program and placement, including review of written progress monitoring and incident reports, at least annual observations of, and, as appropriate, interviews with the student and regular communication with the parent. Each school proposing to use aversive interventions pursuant to a child-specific exception shall submit its policies and procedures consistent with section 200.22(f) to the Department for approval prior to use.

Section 201.2(a) proposes to amend the definition of BIP to add that the strategies must include positive behavioral supports and services to address the behavior.

PROFESSIONAL SERVICES:

The proposed amendment will not impose any additional professional service requirements on school districts, BOCES or charter schools.

COMPLIANCE COSTS:

School districts may incur minimal costs to duplicate materials to submit an application for a child-specific exception and for required observations (estimated at a $200 per student) and Committee on Special Education (CSE) meetings at least every six months for students receiving aversive behavioral interventions (estimated at $1,000 per student). Currently, it is estimated that less than 30 school districts in New York State have students placed in schools using aversive interventions and most of these have only one student where such a recommendation currently appears on the student's individualized education program (IEP). Schools using aversive interventions may also incur additional administrative costs estimated at less than $8,000 annually for implementing standards, including staff training (estimated at $2,000 annually) and costs associated with convening Human Rights Committee meetings at least quarterly (e.g., administrative oversight, duplication and meeting costs estimated at $6,000 per year).

ECONOMIC AND TECHNICAL FEASIBILITY:

The proposed rule does not impose any new technological requirements. Economic feasibility is addressed above under compliance costs.

MINIMIZING ADVERSE IMPACT:

The proposed rule is necessary to implement Regents policy to establish standards for behavioral interventions, including a prohibition on the use of aversive interventions; to provide for a child specific exception to the prohibition on the use of aversive interventions; and to establish standards for programs using aversive interventions. In developing the proposed amendment, the Department considered other states' experiences with statutes and/or regulations prohibiting aversive interventions in school programs, including definitions, child-specific exceptions and standards; conducted a review of the research literature; and sought the professional expertise of individuals with credentials in behavioral psychology. The Department considered a full prohibition on the use of aversive interventions, but determined that there may be exceptional circumstances in which a student may be displaying behaviors that threaten the health or safety of the student for which aversive interventions may be warranted. The proposed rule will ensure that aversive interventions are used only when necessary; in accordance with research-based practices and the highest standards of oversight and monitoring; under conditions of minimal intensity and duration to accomplish their purpose; and consistent with the requirements of the Individuals with Disabilities Education Act (IDEA).

LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed rule will be provided to District Superintendents with the request that they distribute it to school districts within their supervisory districts for review and comment. In addition, the State Education Department will schedule public hearings on the proposed amendments.

TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The rule will apply to all public school districts, boards of cooperative educational services (BOCES), charter schools, State-operated and State-supported schools, approved preschool programs, approved private schools, approved out-of-state day or residential schools, and registered nonpublic nursery, kindergarten, elementary or secondary schools in this State, including those in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with population density of 150 per square miles or less.

REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:

Section 19.5(a) prohibits use of corporal punishment in school districts, BOCES, charter schools, State-operated or State supported schools, approved preschool programs, approved private schools, approved out-of-State day or residential schools, or in registered nonpublic nursery, kindergarten, elementary or secondary schools in the State.

Section 19.5(b) prohibits use of aversive interventions except pursuant to a child-specific exception pursuant to section 200.22(e) and (f).

Section 200.1(r) of the Commissioner's Regulations, as amended, revises the definition of FBA to cross reference the requirements in section 200.22(a).

Section 200.4(d)(3)(i) requires a CSE, in developing a student's IEP, to consider supports and strategies, including positive behavioral interventions, to address student behaviors that are consistent with program standards in section 200.22.

A CSE/CPSE shall conduct a FBA in accordance with section 200.22(a) and develop and implement a BIP in accordance with 200.22(b).

Each school, which uses a time out room as part of its behavior management approach, is subject to section 200.22(c) requirements.

Section 200.22(d) establishes requirements regarding emergency interventions.

Section 200.22(e) provides that a child-specific exception to the prohibition of the use of aversive interventions may be granted for school-age students only during the 2006–2007, 2007–2008 and 2009–2010 school years; provided that a student whose IEP includes use of aversive interventions as of June 30, 2009 may be granted such 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. Whenever a CSE is considering whether a child-specific exception is warranted, the school district shall submit an application to the Commissioner for referral to an independent panel of experts. The CSE shall, based on its consideration of the recommendation of the panel, determine whether the student's IEP shall include a child-specific exception. The school district shall notify the Commissioner when such exemption has been included in the student's IEP. An IEP providing such exemption shall identify the specific targeted behaviors, aversive interventions to be used, and aversive conditioning devices where the aversive interventions include use of such devices.

Public schools, BOCES, charter schools, approved private schools, State-operated or State-supported schools in NYS and approved out-of-State day or residential schools are subject to section 200.22(f) program standards for use of aversive interventions. Each school using aversive interventions shall establish a Human Rights Committee pursuant to section 200.22(f)(3) to monitor the program. Persons using aversive interventions shall be supervised and trained pursuant to section 200.22(f)(4). Pursuant to section 200.22(f)(5), aversive interventions shall be provided only with the parent's informed written consent and no parent shall be required by the program to remove the student from the program if the parent refuses consent. Use of aversive interventions is subject to quality assurance reviews pursuant to section 200.22(f)(6) and the program shall provide for ongoing monitoring of student progress pursuant to section 200.22(f)(7), including quarterly written progress reports. A school district placing a student in such program shall ensure the student's IEP and BIP are being implemented. The CSE shall convene at least every six months to review the student's educational program and placement, including review of written progress monitoring and incident reports, at least annual observations of, and, as appropriate, interviews with the student and regular communication with the parent. Each school proposing to use aversive interventions pursuant to a child-specific exception shall submit its policies and procedures consistent with section 200.22(f) to the Department for approval prior to use.

Section 201.2(a) proposes to amend the definition of BIP to add that the strategies must include positive behavioral supports and services to address the behavior.

The proposed amendment will not impose any additional professional service requirements on school districts.

COSTS:

School districts may incur minimal costs to duplicate materials to submit an application for a child-specific exception and for required observations (estimated at a $200 per student) and Committee on Special Education (CSE) meetings at least every six months for students receiving aversive interventions (estimated at $1,000 per student). Currently, it is estimated that less than 30 school districts in New York State have students placed in schools using aversive interventions and most of these have only one student where such a recommendation currently appears on the student's individualized education program (IEP). Schools using aversive interventions may also incur additional administrative costs estimated at less than $8,000 annually for implementing standards, including staff training (estimated at $2,000 annually) and costs associated with convening Human Rights Committee meetings at least quarterly (e.g., administrative oversight, duplication and meeting costs estimated at $6,000 per year).

MINIMIZING ADVERSE IMPACT:

The proposed rule is necessary to implement Regents policy to establish standards for behavioral interventions, including a prohibition on the use of aversive interventions; to provide for a child specific exception to the prohibition on the use of aversive interventions; and to establish standards for programs using aversive interventions. In developing the proposed amendment, the Department considered other states' experiences with statutes and/or regulations prohibiting aversive interventions in school programs, including definitions, child-specific exceptions and standards; conducted a review of the research literature; and sought the professional expertise of individuals with credentials in behavioral psychology. The Department considered a full prohibition on the use of aversive interventions, but determined that there may be exceptional circumstances in which a student may be displaying behaviors that threaten the health or safety of the student for which aversive interventions may be warranted. The proposed rule will ensure that aversive interventions are used only when necessary; in accordance with research-based practices and the highest standards of oversight and monitoring; under conditions of minimal intensity and duration to accomplish their purpose; and consistent with the requirements of the Individuals with Disabilities Education Act (IDEA). The proposed amendments are necessary to ensure the health and safety of students. Since these requirements apply to all school districts, BOCES, charter schools, and other affected entities in the State, it is not possible to adopt different standards for entities located in rural areas.

RURAL AREA PARTICIPATION:

The proposed rule will be submitted for discussion and comment to the Department's Rural Education Advisory Committee that includes representatives of school districts in rural areas. In addition, the State Education Department will schedule public hearings on the proposed amendments.

The proposed rule is necessary in order to establish standards for behavioral interventions for students with disabilities, including a prohibition on the use of aversive behavioral interventions; to provide for a child specific exception to the prohibition on the use of aversive behavioral interventions; and to establish standards for programs using aversive behavioral interventions. These amendments will ensure that aversive behavioral interventions are used only when necessary; in accordance with research-based practices; under conditions of minimal intensity and duration to accomplish their purpose; and in accordance with the highest standards of oversight and monitoring. The proposed rule will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the rule that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required, and one has not been prepared.

See Assessment of Public Comment in the Notice of Adoption, I.D. No. EDU-28-06-00005-A, printed in this issue of the State Register.