Current through Register Vol. 46, No. 12, March 20, 2024
(a) Purpose of section. The purpose of this
section is to establish uniform guidelines that prohibit the use of corporal
punishment, aversive interventions and seclusion and authorize the limited use
of timeout and physical restraint in schools to address student
behaviors.
(b) Definitions. As used
in this section, the following terms shall have the following meanings:
(1) Aversive intervention means an
intervention that is intended to induce pain or discomfort for the purpose of
eliminating or reducing student behavior, including such interventions as:
(i) contingent application of noxious,
painful, intrusive stimuli or activities; strangling, shoving, deep muscle
squeezes or other similar stimuli;
(ii) any form of noxious, painful or
intrusive spray, inhalant or tastes;
(iii) contingent food programs that include
the denial or delay of the provision of meals or intentionally altering staple
food or drink in order to make it distasteful;
(iv) movement limitation used as a
punishment, including but not limited to helmets and mechanical restraints as
defined in paragraph (4) of this subdivision; or
(v) other stimuli or actions similar to the
interventions described in this paragraph. The term shall 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;
brief physical prompts to interrupt or prevent a specific behavior;
interventions medically necessary for the treatment or protection of the
student; or other similar interventions.
(2) Corporal punishment means any act of
physical force upon a student for the purpose of punishing that student. The
term does not include the use of physical restraints, as defined in paragraph
(7) of this subdivision, to protect the student, another student, teacher or
any other person from physical injury when alternative procedures and methods
not involving the use physical restraint cannot reasonably be employed to
achieve these purposes.
(3)
De-escalation means the use of a behavior management technique that helps a
student increase control over their emotions and behavior and results in a
reduction of a present or potential level of danger to the student or
others.
(4) Mechanical restraint
means the use of any device or equipment to restrict a student's freedom of
movement. Mechanical restraint does not include devices implemented by trained
school personnel, or utilized by a student, that have been prescribed by an
appropriate medical or related services professional and are used for the
specific and approved purposes for which such devices were designed, such as:
(i) adaptive devices or mechanical supports
used to achieve proper body position, balance, or alignment to allow greater
freedom of mobility than would be possible without the use of such devices or
mechanical supports;
(ii) vehicle
safety restraints when used as intended during the transport of a student in a
moving vehicle;
(iii) restraints
for medical immobilization; or
(iv)
orthopedically prescribed devices that permit a student to participate in
activities without risk of harm.
(5) Multi-tiered system of supports means a
proactive and preventative framework that utilizes data to inform instruction
and the allocation of services to maximize achievement for all students and
support students' social, emotional and behavioral needs from a culturally
responsive and strength-based perspective.
(6) Physical escort means a temporary
touching or holding of the hand, wrist, arm, shoulder or back for the purpose
of inducing a student who is acting out to walk to a safe location.
(7) Physical restraint means a personal
restriction that immobilizes or reduces the ability of a student to move their
arms, legs, body, or head freely. Physical restraint does not include a
physical escort or brief physical contact and/or redirection to promote student
safety, calm or comfort a student, prompt or guide a student when teaching a
skill or assisting a student in completing a task, or for other similar
purposes.
(8) Prone restraint means
physical or mechanical restraint while the student is in the face down
position.
(9) School means a public
school district, board of cooperative educational services, charter school,
State-operated and State-supported school pursuant to articles 85, 87 and 88 of
the Education Law, in-state and out-of-state private residential or
non-residential school for the education of students with disabilities approved
pursuant to Article 89 of the Education Law or operating under Article 81 of
the Education Law, State-administered Prekindergarten (PreK) program directly
operated by a school district, board of cooperative educational services, or an
eligible agency, as defined in section
151-1.2(b) of this
Title, or operated by a school district in collaboration with an eligible
agency, preschool special education program approved pursuant to Education Law
section 4410, and registered nonpublic nursery school, kindergarten, and high
school, and a nonpublic school serving grades 1 through 8 that has a registered
high school, in this State.
(10)
Seclusion means the involuntary confinement of a student alone in a room or
space that they are physically prevented from leaving or they may perceive that
they cannot leave at will. Seclusion does not include timeout as defined in
paragraph (11) of this subdivision.
(11) Timeout means a behavior management
technique that involves the monitored separation of a student in a non-locked
setting and is implemented for the purpose of de-escalating, regaining control,
and preparing the student to meet expectations to return to their education
program in accordance with subdivision (d) of this section. The term timeout
shall not include:
(i) a student-initiated or
student-requested break to utilize coping skills, sensory input, or
self-regulation strategies;
(ii)
use of a room or space containing coping tools or activities to assist a
student to calm and self-regulate, or the use of such intervention strategies
consistent with a student with a disability's behavioral intervention plan as
defined in section
200.1(mmm) of this
Title; or
(iii) a teacher removal,
in-school suspension; or any other appropriate disciplinary action.
(c) Prohibition of the
use of corporal punishment, aversive interventions, and seclusion.
(1) No teacher, administrator, officer,
employee or agent of a school shall use the following against a student:
(i) corporal punishment;
(ii) aversive interventions; or
(iii) seclusion.
(2) For purposes of this subdivision the term
"agent" shall include, but not be limited to, school resource officers, except
when a student is under arrest and handcuffs are necessary for the safety of
the student and others.
(d) Authorized limited use of timeout and
physical restraint. Positive, proactive, evidence- and research-based
strategies through a multi-tiered system of supports shall be used to reduce
the occurrence of challenging behaviors, eliminate the need for the use of
timeout and physical restraint, and improve school climate and the safety of
all students. Timeout and physical restraint may be used only when: other less
restrictive and intrusive interventions and de-escalation techniques would not
prevent imminent danger of serious physical harm to the student or others;
there is no known medical contraindication to its use on the student; and
school staff using such interventions have been trained in its safe and
appropriate application in accordance with the requirements of paragraph (7) of
this subdivision. Timeout and physical restraints shall not be used as
discipline or punishment, retaliation, or as a substitute for positive,
proactive intervention strategies that are designed to change, replace, modify,
or eliminate a targeted behavior.
(1) Use of
timeout. Except as provided in section
200.22(c) of this
Title, timeout shall only be used in a situation that poses an immediate
concern for the physical safety of the student or others. Staff shall return
the student to their educational program as soon as the student has safely
de-escalated, regained control and is prepared to meet expectations.
(i) A room or physical space used for
purposes of timeout may be located within a classroom or outside of the
classroom and shall comply with the following requirements:
(a) The room or physical space shall:
(1) be unlocked, and any door must be able to
be opened from the inside. The use of locked rooms or physical spaces is
prohibited.
(2) provide a means for
continuous visual and auditory monitoring of the student;
(3) be of adequate width, length and height
to allow the student to move about and recline comfortably;
(4) be clean and free of objects and fixtures
that could be potentially dangerous to a student; and
(5) meet all local fire and safety
codes.
(b) Wall and floor
coverings shall, to the extent practicable, be designed to prevent injury to
the student and there shall be adequate lighting and ventilation.
(c) The temperature of the room or physical
space shall be within the normal comfort range and consistent with the rest of
the building.
(ii) Staff
shall continuously monitor the student in a timeout room or space.
(iii) Staff functioning as timeout monitors
shall be trained in accordance with paragraph (7) of this
subdivision.
(2) Use of
physical restraint. Physical restraint shall only be used in a situation in
which immediate intervention involving the use of reasonable physical force is
necessary to prevent imminent danger of serious physical harm to the student or
others.
(i) The type of physical restraint
used shall be the least restrictive technique necessary and be discontinued as
soon as the imminent danger of serious physical harm has resolved.
(ii) Physical restraint shall never be used
in a manner that restricts the student's ability to breathe or communicate or
harms the student.
(iii) The use of
prone restraint is prohibited.
(iv)
Physical restraint shall not be used as a planned intervention on a student's
individualized education program, Section 504 accommodation plan, behavioral
intervention plan, or other plan developed for a student by the
school.
(v) Physical restraint
shall not be used to prevent property damage except in situations where there
is imminent danger of serious physical harm to the student or others and the
student has not responded to positive, proactive intervention
strategies.
(vi) Physical
restraints shall be administered only by staff who have received training in
accordance with paragraph (7) of this subdivision.
(vii) Following a physical restraint, if an
injury has been sustained or believed to have been sustained, the school nurse,
pursuant to section
902(2)(b) of the Education
Law or other medical personnel (i.e., physician, physician assistant, or a
nurse practitioner) shall evaluate the student to determine and document if any
injuries were sustained during the incident.
(3) Parental notification. Each school shall
develop a procedure to:
(i) ensure same day
notification to a parent or person in parental relation to the student
following the use of timeout, including timeout used in conjunction with a
student's behavioral intervention plan consistent with section
200.22(c) of this
Title, or use of a physical restraint. When the student's parent or person in
parental relation cannot be contacted, after reasonable attempts are made, the
school principal or building administrator shall record such attempts. For
students with disabilities, the school principal or building administrator
shall report such attempts to the student's committee on preschool special
education or committee on special education. Such notification shall offer the
parent the opportunity to meet regarding the incident; and
(ii) provide the parent or person in parental
relation to the student a copy of the documentation of the incident within
three school days of the use of timeout or a physical
restraint.
(4)
Documentation.
(i) The school shall maintain
documentation of each incident involving the use of timeout, including timeout
used in conjunction with a student's behavioral intervention plan consistent
with section
200.22(c) of this
Title, and/or physical restraint on each student, which shall include:
(a) the name and date of birth of the
student;
(b) the setting and
location of the incident;
(c) the
name of the staff who participated in the implementation, monitoring and
supervision of the use of timeout and/or physical restraint and any other
persons involved;
(d) a description
of the incident including duration, and for physical restraint, the type of
restraint used;
(e) whether the
student has an individualized education program, Section 504 accommodation
plan, behavioral intervention plan, or other plan developed for the student by
the school;
(f) a list of all
positive, proactive intervention strategies utilized prior to the use of
timeout and/or physical restraint; and for students with disabilities, whether
those strategies were consistent with a student's behavioral intervention plan,
if applicable;
(g) the details of
any injuries sustained by the student or staff during the incident and whether
the student was evaluated by the school nurse or other medical
personnel;
(h) the date and method
of notification to the parent or person in parental relation pursuant to
paragraph (3) of this subdivision and whether a meeting was held; and
(i) the date of the debriefing held
consistent with the requirements of paragraph (5) of this
subdivision.
(ii)
Documentation of the incident shall be reviewed by supervisory personnel and,
as necessary, the school nurse or other medical personnel.
(iii) Documentation of each incident shall be
maintained by the school and made available for review by the department upon
request.
(5) Debriefing.
As soon as practicable, and after every incident in which timeout and/or a
physical restraint is used on a student, a school administrator or designee
shall:
(i) meet with the school staff who
participated in the use of timeout and/or physical restraint to discuss:
(a) the circumstances leading to the use of
timeout and/or physical restraint;
(b) the positive, proactive intervention
strategies that were utilized prior to the use of timeout and/or physical
restraint; and
(c) planning for the
prevention and reduction of the future need for timeout and/or physical
restraint with the student including, if applicable, whether a referral should
be made for special education programs and/or other support services or, for a
student with a disability, whether a referral for review of the student's
individualized education program and/or behavioral intervention plan is needed;
and
(ii) direct a school
staff member to debrief the incident with the student in a manner appropriate
to the student's age and developmental ability and to discuss the behavior(s),
if any, that precipitated the use of timeout and/or physical
restraint.
(6) Review of
documentation. The school administrator or designee shall regularly review
documentation on the use of timeout and physical restraint to ensure compliance
with school's policy and procedures. When there are multiple incidents within
the same classroom or involving the same staff, the school administrator or
designee shall take appropriate steps to address the frequency and pattern of
use.
(7) Staff training.
(i) All staff shall receive annual training
on the school's policies and procedures related to the use of timeout and
physical restraint; evidence-based positive, proactive strategies; crisis
intervention and prevention procedures and de-escalation techniques.
(ii) In addition to the training requirements
for all staff in subparagraph (i), any staff who may be called upon to
implement timeout or physical restraint, shall receive annual, evidence-based
training in safe and effective developmentally appropriate timeout and physical
restraint procedures.
(8)
Written policy.
(i) Each school shall adopt a
written policy that establishes administrative practices and procedures
regarding the use of timeout and physical restraint consistent with this
subdivision. Such policy and procedures shall at a minimum include:
(a) factors which may precipitate the use of
the timeout or physical restraint;
(b) developmentally appropriate time
limitations for the use of timeout and physical restraint;
(c) prohibiting placing a student in a locked
room or space or in a room where the student cannot be continuously observed
and supervised;
(d) prohibiting the
use of prone restraint;
(e) the
requirements in section
200.22(c) of this
Title relating to students with disabilities whose behavioral intervention plan
includes the use of timeout as a behavioral consequence;
(f) staff training provided in accordance
with the requirements of paragraph (7) of this subdivision;
(g) information to be provided to the parent
or person in parental relation, including a copy of the timeout and physical
restraint policy; and
(h) notifying
the parent or person in parental relation on the same day when a student is
placed in a timeout or a physical restraint is used in accordance with the
requirements of paragraph (3) of this subdivision; and
(i) data collection to monitor patterns of
use of timeout and physical restraint.
(ii) The written policy shall be made
publicly available for review at the district or school administrative
office(s) and each school building, and posted on the school's website, if one
exists.
(e)
Annual reporting. Beginning with the 2024-2025 school year, each public school
district, board of cooperative educational services, charter school,
State-operated school pursuant to Articles 87 and 88 of the Education Law, and
private residential school operated pursuant to Article 81 of the Education
Law, shall submit an annual report on the use of physical restraint and timeout
and substantiated and unsubstantiated allegations of use of corporal
punishment, mechanical restraint and other aversive interventions, prone
physical restraint, and seclusion to the department, on a form and at a time
prescribed by the commissioner in accordance with the requirements of section
100.2(bb)(2). In
addition, public school districts shall report such data for students for whom
they are the district of residence, and who are otherwise not reported,
including students attending a State-supported school pursuant to Article 85 of
the Education Law, in-state and out-of-state private residential or
non-residential school for the education of students with disabilities approved
pursuant to Article 89 of the Education Law, or preschool special education
program approved pursuant to section
4410 of the
Education Law.