The Use of Aversive or Noxious
Stimuli
in Public and Private Schools Serving
Students with Disabilities
Currently,
neither Education Law nor Commissioner’s Regulations prohibit the use of
aversive behavioral interventions in school programs. Several recent events and information
have heightened our concerns on this issue and have led us to bring this issue
to the attention of the Board of Regents at this time. These include changes to federal law,
the enactment of Billy’s Law and a proposed Senate bill that would prohibit the
use of aversives in certain school programs, lack of a clear policy on this
issue as we monitor private schools serving students with disabilities and the
most recent news events around the use of aversive interventions such as shock
treatment in an out-of-State school approved for the placement of New York State
students.
·
In 1997, the Individuals with Disabilities Education Act
(IDEA) was amended to explicitly require the use of positive behavioral supports
and services for students with disabilities. IDEA 2004 strengthened these
requirements. Other states, such as
California, have enacted or are proposing legislation banning the use of
aversives in consideration of IDEA mandates.
·
In 2006, the NYS legislature passed Billy’s Law (Chapter
392 of the Laws of 2005). This law
established an interagency committee, including the Department, to provide
direction and guidance regarding the placement of children in out-of-State
facilities. There is general
concern and consensus among these interagency partners that the use of aversives
for any NYS student must be addressed.
This is evidenced by the activities of the Committee to thoroughly review
the issue of the use of aversives in programs serving children and its
involvement in the review of legislation recently introduced by Senator Martin
Golden (Senate Bill 6876) intended to prohibit the use of aversives in programs
serving children under the auspices of the State agencies involved in the
interagency committee.
·
Due to the lack of available in-state programs at the
time of referral of the student for placement, the number of students with
disabilities placed in out-of-State schools has increased significantly,
particularly through emergency interim placements. VESID has increased its frequency of
monitoring private schools approved for the placement of students with
disabilities and continues its efforts to develop in-state programs for NYS
students. However, the sheer number
of schools in other states where NYS students are placed makes it difficult to
provide effective oversight on issues such as behavioral interventions in the
absence of a standard policy. We
have received parent complaints regarding the behavioral interventions used with
students, but we lack clear authority to make specific findings in the absence
of a State standard based in statute or regulation on the use of certain
behavioral interventions.
·
Increasingly, school programs are using behavioral
therapies, particularly for young students with autism. Such programs can be provided in
preschool programs and in the preschool student’s home. The oversight and supervision of such
behavioral approaches and the lack of a clear standard on acceptable and
unacceptable forms of behavioral interventions causes great concern around our
authority and ability to protect the health and safety of our most vulnerable
population of students.
·
The Judge Rotenberg Center (JRC) in Massachusetts
(formerly known as Behavior Research Institute (BRI)), which is approved by New
York State for the placement of students with disabilities, applies aversive
behavioral interventions with its students. In the mid 1980’s, NYS’ attempts to
disallow school district contacts with BRI were denied by the Court. Massachusetts made attempts beginning in
1985 and again in the 1990s to close BRI, which resulted in a Massachusetts
Court Settlement Agreement that allowed the school to use aversives, but only if
each student undergoes a Court substituted judgment hearing with review and
approval of a Human Rights Committee.
Parents must consent to the treatment and the Committee on Special
Education must have recommended this level of behavioral intervention on the
student’s Individualized Education Program (IEP).
·
It was our belief that the use of extreme forms of
aversive intervention such as the administration of electric shock at JRC was
primarily limited to the most significantly cognitively impaired students who
were engaged in severe self-destructive and/or aggressive behaviors. A recent request for data from the
school on its use of aversives revealed that, in fact, electric shock has been
approved for use with significantly increased frequency (for 77 of 151 NYS
students). The majority of
these children are higher functioning, including those with emotional
disabilities, attention deficit hyperactive disorder, oppositional defiant
disorders, obsessive-compulsive disorders, conduct disorders and with behavior
problems such as truancy, aggression, depression, suicidal actions and fire
setting.
Issues to Consider
In discussing and developing a
policy on this issue, the Board of Regents should consider the following:
·
A student’s right to a free appropriate public education
must be ensured. States and local
educational agencies must ensure a full continuum of services and have programs
available to meet the needs of individual students with varying and complex
needs.
·
All NYS children deserve to be treated with respect and
dignity in the course of their receipt of appropriate education programs and
services.
·
The use of aversive therapy is a very controversial
issue that is polarizing parents and professionals.
·
Although there is extensive research and disagreement as
to the efficacy of use of aversives as a behavior management approach to
effectively reduce or eliminate maladaptive behaviors on more than a temporary
basis, it is important that we are knowledgeable about the most current research
prior to establishing policy.
·
There is general concern among NYS agencies with
responsibility for the care and treatment of children surrounding the use of
aversive approaches. As Regents
policy is developed, we must consider any potential conflict with the policies
and procedures relating to aversive treatments of other NYS agencies that
operate educational programs or license the residential components of State
Education Department approved schools (e.g., Office of Mental Heath, Office of
Mental Retardation and Developmental Disabilities).
·
Any policy regarding the use of aversive therapies must
be uniformly applied to all schools where NYS students attend, including public
schools, boards of cooperative educational services (BOCES), approved preschool
programs, approved private schools, including day and residential schools,
Charter Schools, State-operated and State-supported schools.
·
The development of a Regents policy on this issue should
include a process that:
o
engages a broad stakeholder discussion on this issue,
including specific public and professional comment on the definition of the term
“aversive or noxious stimuli.” In
order to comply with IDEA, we must conduct public hearings for any changes to
proposed rules relating to the education of students with disabilities;
o
provides for an in-depth discussion with other State
agencies on the relationship of the Regents policy with other agency policies
and the potential impact on programs that have joint oversight; and
o
ensures an extensive review of research including
consideration of the experiences of other states that have enacted statute
and/or regulations restricting the use of aversives.
The draft language attached below
is provided to stimulate a discussion of the issue. This language or the ideas
reflected in this language have not yet been shared with stakeholders or other
State agencies. This language
would:
·
establish a Regents rule that (1) prohibits all public
schools, including Charter Schools, boards of cooperative educational services
(BOCES), Special Act School Districts as well as all preschool programs,
approved private schools (day and residential, in-state and out-of-State),
State-supported schools and State-operated schools from using aversive or
noxious stimuli to reduce or eliminate the maladaptive behaviors of NYS students
and (2) defines the term “aversive or noxious stimuli;”
·
add program standards for education programs for
students and preschools students with disabilities being educated in private
schools and State-operated or State-supported schools that prohibits the use of
corporal punishment and the use of aversive or noxious stimuli;
·
establish that a non-public school that uses corporal
punishment or aversive or noxious stimuli shall not be eligible for State
approval; and
·
include the use of corporal punishment and/or use of
aversive or noxious stimuli as a condition that could lead to the removal of a
non-public school from the approved list.
DRAFT POLICY LANGUAGE
FOR GENERAL DISCUSSION PURPOSES
Chapter 1 of the Rules of the Board of Regents
Section 19.5 Prohibition of corporal punishment
and certain behavioral interventions
(a) No teacher,
administrator, officer, employee or agent of a school district in this State, or
of a board of cooperative educational services, Charter School, approved
preschool program, approved private school, State-operated or State-supported
school in this State or an approved out-of-State day or residential
school, shall use corporal punishment against a pupil and shall not
employ the use of aversive or noxious stimuli to reduce or eliminate maladaptive
behaviors.
(b) As used in this
section, corporal punishment means any act of physical force upon a pupil for
the purpose of punishing that pupil, except as otherwise provided in subdivision
(c) of this section.
(c) As used in
this section, aversive or noxious stimuli means:
1. noxious,
painful, intrusive stimuli or activities intended to induce pain such as
hitting, slapping, pinching, kicking, hurling, strangling, shoving, or other
similar stimulus; any form of noxious, painful or intrusive spray or inhalant;
electric shock; water spray to the face; pinches and deep muscle
squeezes;
2.
withholding sleep, shelter, bedding, bathroom facilities, clothing,
food or drink or essential nutrition or hydration as part of mealtimes, bathroom
facilities, visitation or communication with family;
3. the use
of chemical restraints instead of positive programs or medical treatments;
or
4. the
placement of a child unsupervised or unobserved in a room from which the student
cannot exit without assistance.
The term does 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;
deep muscle massage or brief physical prompts or guidance to interrupt or
prevent a specific behavior.
(d) In situations in
which alternative procedures and methods not involving the use of physical force
cannot reasonably be employed, nothing contained in this section shall be
construed to prohibit the use of reasonable physical force for the following
purposes:
1. to
protect oneself from physical injury;
2. to
protect another pupil or teacher or any person from physical injury;
3. to
protect the property of the school district or others; or
4. to
restrain or remove a pupil whose behavior is interfering with the orderly
exercise and performance of school district functions, powers and duties, if
that pupil has refused to comply with a request to refrain from further
disruptive acts.
Section 200.7 of the Regulations of the Commissioner of
Education relating to Program Standards for Education Programs for Students and
Preschool Students with Disabilities being Educated in Private Schools and
State-Operated or State-Supported Schools.
Add:
A school that uses corporal punishment or aversive or
noxious stimuli to reduce or eliminate maladaptive behaviors, as such terms are
defined in section 19.5 of the Rules of the Board of Regents, shall not be
eligible for approval.
Schools may be removed from the approved list five business
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,
including evidence that a private school is using aversive or noxious
stimuli, as defined in section 19.5 of the Rules of the Board of Regents, to
reduce or eliminate maladaptive behaviors of students, and listing the
dangerous conditions at the school.
An approved private school, a
State-operated school, or a State-supported school is prohibited from using
corporal punishment or aversive or noxious stimuli to reduce or eliminate
maladaptive behaviors of students, as such terms are defined in section 19.5 of
the Rules of the Board of Regents
