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The New York State Board of Regents approved new regulations, which became effective on August 2, 2023, relating to the prohibition of corporal punishment, aversive interventions, prone restraint, and seclusion; permitted use of timeout and restraint; and data collection.

The rules also revise how schools must report and train staff on the use of physical restraints, seclusion and timeout on students. The new regulations apply to school districts, boards of cooperative educational services (BOCES), charter schools, State-operated or State-supported schools, approved preschool special education programs, approved in-state and out-of-state private schools serving students with disabilities, and registered nonpublic nursery, kindergarten, elementary or secondary schools in New York State.

New York State Education Department (NYSED) indicated that it made these revisions to the regulations in order to align New York’s requirements with the restraint and seclusion principles articulated by the US Department of Education (USDOE), in response to investigative reporting performed by the Albany Times Union which revealed extensive use of restraint and seclusion as well as multiple violations of the Commissioner’s Regulations during that use, and in an effort to ensure student health and safety.

The Rules of the Board of Regents and the Regulations of the Commissioner of Education now prohibit seclusion and prone restraint in addition to corporal punishment and aversive interventions[1]. The regulations define prone restraints as physical or mechanical restraints while a student is in the face-down position.  Seclusion is defined as 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 which the regulations categorize as 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.[2]

Use of Timeout

The regulations provide that “[p]ositive 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.”

The regulations mandate that timeouts 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 properly trained in its safe and appropriate application.

Timeout must 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.

Timeout must only be used in a situation that poses an immediate concern for the physical safety of the student or others[3].  The construct of the timeout room must meet certain regulatory requirements including that the room/physical space must be:  unlocked, and any door able to be opened from the inside; provide a means for continuous visual and auditory monitoring of the student; be of adequate width, length and height to allow the student to move about and recline comfortably; be clean and free of objects and fixtures that could be potentially dangerous; and meet all local fire and safety codes.  In addition, wall and floor coverings must, to the extent practicable, be designed to prevent injury, there must be adequate lighting and ventilation, and the temperature of the room/space must be within the normal comfort range and consistent with the rest of the building.  Staff must continuously monitor the student in the room/space.

Staff must return the student to their educational program as soon as the student has safely de-escalated, regained control and is prepared to meet expectations.

Use of Physical Restraint

Physical restraint may only be used when:

• immediate intervention using reasonable physical force is necessary to prevent imminent danger or serious physical harm to the student or others;
• the type of physical restraint used is the least restrictive technique necessary and is discontinued as soon as the imminent danger of serious physical harm has resolved;
• is never used in a manner that restricts the student’s ability to breathe or communicate or harms the student; and
• is only administered by staff who have received training in accordance with Commissioner’s regulations.

Prone physical restraint is prohibited.  In addition, physical restraint may 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 interventions strategies.  Physical restraints cannot be used as a planned intervention on a student’s IEP, Section 504 Plan, BIP or other plan developed by the school.[4]

If an injury has been sustained or is believed to have been sustained during the physical restraint, the school nurse or other medical personnel must evaluate the student to determine and documents any injuries.

Notably, SED recommends that all schools ensure staff are aware of the regulatory requirements and know how to respond in situations that pose imminent danger of serious physical harm, irrespective of whether the school has typically used these techniques in the past, since “[s]chools cannot ensure that they will never encounter a situation that warrants physical restraint”.

Parental Notification

Schools must notify the parents of students on the same day that a physical or mechanical restraint is used on the student, or the student is placed in a timeout room/space. When a student’s parent or a person in parental relation cannot be reached after reasonable efforts, the school principal or building administrator must document such attempts. For students with disabilities, the school principal or building administrator must report such attempts to the student’s committee on preschool special education or committee on special education. Notice must offer the parent the opportunity to meet regarding the incident; and provide the parent or person in parental relation to the student a copy of the documentation of the incident within three (3) school days of the use of timeout or a physical restraint.

Incident Documentation

Schools must maintain documentation of each incident involving the use of timeout and/or physical restraint. Incident documentation must include the following:

• the name and date of birth of the student;
• the setting and location of the incident;
• 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;
• a description of the incident including duration, and for physical restraint, the type of restraint used;
• whether the student has an IEP, Section 504 accommodation plan, behavioral intervention plan, or other plan developed for the student by the school;
• 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;
• 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;
• the date and method of notification to the parent or person in parental relation and whether a meeting was held; and
• the date the debriefing was held (see below).

Documentation of the incident must be reviewed by supervisory personnel and, as necessary, the school nurse or other medical personnel.

Documentation of each incident shall be maintained by the school, and made available for review by the NYS Department of Education upon request. School administrators or designees should regularly review documentation on the use of timeout and physical restraint.  Where multipole incidents have occurred within the same classroom or involving the same staff, school administrators/their designees must take steps to address the frequency and pattern of use.

Debriefing

School administrators or designees must debrief, as soon as practicable, after each incident in which timeout and/or physical restraint is used. Debriefing must consist of a school administrator or designee meeting with school staff who participate in the use of the timeout/physical restraint to discuss the circumstances leading to the use of the timeout/physical restraint; the positive, proactive intervention strategies that were used prior to the use of timeout/physical restraint; and planning for the prevention and reduction of the future need for timeout/physical restraint with the student including, if applicable, whether a referral should be made for special education or other support services or, if the student is a classified student with a disability, if a referral should be made to the CSE to review the child’s IEP and/or BIP.  In addition, a staff member must be directed to debrief the incident with the student in an age and developmentally appropriate manner and to discuss any behaviors that may have precipitated the use of the timeout or physical restraint.

Written Policy

Each school must adopt a written policy that establishes administrative practices and procedures regarding the use of timeout and physical restraint.  Such policy and procedures shall at a minimum include:

• factors which may precipitate the use of the timeout or physical restraint;
• developmentally appropriate time limitations for the use of timeout and physical restraint;
• prohibiting placing a student in a locked room or space or in a room where the student cannot be continuously observed and supervised;
• prohibiting the use of prone restraint;
• The requirements in 8 NYCRR § 200.22(c) relating to students with disabilities whose BIP includes the use of timeout as a behavioral consequence;
• staff training in accordance with the Commissioner’s Regulations;
• information to be provided to the parent or person in parental relation, including a copy of the timeout and physical restraint policy; and
• 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; and
• data collection to monitor patterns of use of timeout and/or physical restraint.

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.  Upon request, we would be happy to assist you in the development of such a policy.

Staff Training

The new regulations include revisions to the rules governing how schools must train staff on the use of physical restraints, seclusion and timeout on students. All staff must receive annual training on the school’s policies and procedures related to the use of timeout and physical restraint. In addition, any staff member who may be called upon to implement timeout or physical restraint must receive annual evidence-based training in safe and effective timeout and physical restraint procedures. Moreover, staff who serve as timeout monitors (staff who continuously monitor students that are in a timeout room/space), must receive annual training.

Annual Reporting

Beginning with the 2024-2025 school year, schools must report on the use of physical restraint and timeout; substantiated and unsubstantiated allegations of use of corporal punishment, mechanical restraint, and other aversive interventions; prone physical restraint; and seclusion on an annual basis. This reporting shall not occur annually rather than semi-annually.

Beginning with the 2024-2025 school year, public schools will no longer be required to submit multiple office-specific reports created in the IRS Data Exchange and NYSED Application Business Portal’s Monitoring and Vendor Performance System, such as the “Incidents of Complaints Regarding the use of Corporal Punishment biannual report” and “Emergency Intervention Survey of Approved Special Education Programs.”

The new regulations require that school districts submit electronic records on the use of corporal punishment for each student who was placed out of the district 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 schools for the education of students with disabilities approved pursuant to Article 89 of the Education Law, or preschool special education programs approved pursuant to Education Law § 4410.

More information is available via the link below.

https://www.regents.nysed.gov/sites/regents/files/723brca13.pdf

We hope you find this information helpful. Please contact Karen Pokorny at kpokorny@jaspanllp.com with any questions.

 

[1] The regulations define “aversive interventions” as interventions that are “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 … or (v) other stimuli or actions similar to the interventions [described].”  Aversive interventions do not include techniques such as and similar to:  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 behavior, or interventions medically necessary to treat or protect the student.

[2] The definition of “timeout” does not include “student-requested break[s] to utilize coping skills, sensory input, or self-regulation strategies”, the “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 behavior intervention plan”, or a teacher removal, in-school suspension, or other appropriate disciplinary action.

[3] In response to public comment, NYSED clarified that the regulation “provides an exception to the use of timeout as part of a BIP for situations that pose an immediate concern for the physical safety of the student or others”.

[4] In response to public comment, NYSED clarified that an individual student plan “could describe how staff should interact with a particular student based on their individual behavioral and physical needs (e.g., types of restraints that are contraindicated for the student) if a situation arises that warrants the sue of physical restraint.”  However, “[s]uch descriptions must unambiguously indicate that physical restraint is only used in situations 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.”