This is part of a series on proposed education regulations for New York State that, under the guise of barring the use of aversive controls on disabled children, would actually now permit public schools, preschools, and state-approved private placements to use aversives and noxious stimuli to control students' maladaptive behavior if the district obtains a "child-specific waiver."
Thanks to one of my sources, I have been able to obtain the NY State Education Department's
earlier proposal on the issue of the use of aversives, and have uploaded it to my site. It's worth reading the
entire memo and proposed regulation (PDF) to see what the thinking was in March. In particular, the
original proposal simply barred all use of aversives and noxious stimuli.:
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. (emphasis added by Dissent)
(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.
So what happened between the March proposal saying that you can't use aversives at all and the May proposal that suddenly changed things so that aversives might be used with "waivers?"
Could (gasp) money have anything to do with the revised policies and proposed regulations?
Killing Two Birds (and Probably Some Kids) With One Stone
Early this year, "Billy's Law" was passed by the state legislature after a student placed out-of-state was reportedly abused. Billy's Law made the education system responsible for monitoring what was happening to students placed out of state and in residential facilities. Governor Pataki vetoed the bill and then instructed an interagency task force to address the concerns. And while they were at it, he directed them to look into (translation: "figure out how to make this happen") repatriating all NYS students who were currently placed out of state. Part of his reasoning had to do with the limited ability to monitor what was happening to NYS kids once they were placed out of state. The other huge part had to do with the economics, as some of these placements were costing over $200k per year/per kid.
So the interagency task force looked into the issue. You can read their final statement here (pdf).
One of their interesting findings (from my perspective) had to do with the profile of the kids who were placed out of state:
...while there is a broad age range of children, an overwhelming proportion are adolescent males.
The youth served in out-of-home and out-of-state residential placements tend to have multiple diagnoses, typically found in children placed in unique services or levels of service by various New York State agencies and services systems. NYS currently serves children with these diagnoses in-state as well. The diagnoses provided were as follows:
- disruptive behavior and attention deficit disorders (e.g., conduct, oppositional defiant, disruptive behavior and attention deficit/hyperactivity disorders);
- mental retardation and/or developmental disabilities;
- pervasive developmental disorders (e.g., Autism, Rhett's and Asperger's; and
- Other diagnoses were related to mood disorders, impulse control, anxiety, schizophrenia and psychotic disorders, and learning disabilities.
Now apart from the thought disorder cases, shouldn't we be able to educate kids with these diagnoses in our local communities if teachers were properly trained and given the necessary supports?
So New York State decided it was going to bring all of these kids back into state which would make it easier to monitor for safety issues (as if they would monitor in-state any better than they do out-of-state, but that's another rant). It would also save them a ton of money.
At the present time, however, NYS only operates two schools directly: the NYS School for the Blind in Batavia, NY, and the NYS School for the Deaf in Rome, NY. The abuses at the NYS School for the Blind -- a state-operated school -- were so severe that to cover up what had happened, OMH stepped in and took over the school a few months ago. You can read about the scandal with the School for the Blind at SpecialEducationMuckraker.com.
I mention the School for the Blind because the very same state that couldn't maintain a safe school for blind kids is now proposing to create more programs and schools for kids with other disabilities and I don't expect them to be any more safety-conscious or safety-committed than they were with the School for the Blind.
Having decided that it was going to bring all of these out-of-state kids back into the state, NYSED realized that there would be the issue of using aversives. Programs run in this state by OMRDD and OMH do not use aversives, but some of the out-of-state and private residential programs do use aversives. So NYSED changed its proposals from totally barring aversives, which is what it initially intended to do, to pretending to bar aversives while actually opening the door to allow schools to do what they shouldn't have been doing at all, but were.
There is no doubt in my mind that part of the reasoning is to cover the asses of those BOCES and other facilities, including some public schools, that have injured or abused kids. There is no doubt in my mind that down the road, a defendant school district will hold up these new regs and say, "The state authorized us to use these techniques" or "These techniques are specifically mentioned in the regulations as being permitted with a waiver, which we obtained -- so these techniques represent acceptable professional standards for dealing with children's behavior."
Pardon me while I spit.
I guess I should make it clear that I'm not accusing all BOCES schools of abusing kids. Nor do all public schools abuse kids. But we know that there have been abuses, and it makes no damned sense to me to start allowing what has been illegal if you're not prepared to use research-validated methods and to really train staff and monitor for safety.
Every reputable mental health and behavioral agency and expert has made it crystal clear that improperly or inadequately trained staff are likely to misuse or abuse aversives, yet the proposed regulations do not mandate high level and sophisticated training in behavior or research-validated methodologies. The regulations specify "appropriate" training. Pardon me while I spit again, but I've been working in and with the system for 17 years now and the state's idea of "appropriate" is nowheres comparable to a professional's idea of "appropriate." More children will be harmed, and more teachers will get hurt on the job if these regulations are enacted.
So, if you're a parent or a teacher in NYS, I urge you to contact the Board of Regents and tell them to say "No!" to the proposed regulations. The NYSUT has not yet issued a formal response to the proposed reg. Neither has NYSPA, but I understand that both organizations are working on it.