ASSESSMENT OF PUBLIC COMMENT

            Following publication of the Notice of Proposed Rule Making in the State Register on May 3, 2023, the State Education Department (SED) received the following comments on the proposed amendment:

In General

            COMMENT: Most commenters supported all or specific components of the proposed amendment relating to the prohibition of corporal punishment, aversive interventions, prone restraint and seclusion; the limited authorized use of timeout and restraint; and data collection.  They stated that the changes are welcome and long overdue, designed to further ensure the health and safety of all students, including students with disabilities, and likely to ensure that educational organizations use the most up to date, proactive, and effective interventions for students and their social/emotional/behavioral well-being.

            DEPARTMENT RESPONSE: These comments are supportive in nature; therefore, no response is necessary.

            COMMENT: A group of commenters asked what kind of formal communication will be provided to superintendents of schools and building principals regarding their roles and responsibilities in implementing the proposed amendments. The commenters further inquire as to whether districts will receive additional funds to respond to the proposed new mandates (i.e., training, oversight and reporting requirements). Other commenters requested additional guidance, including lists of positive intervention strategies and what information needs to be shared with parents.

            DEPARTMENT RESPONSE: Information regarding the proposed rule will be distributed through SED’s weekly email announcement to all school districts and boards of cooperative educational services via SED’s communication channels. SED will consider issuing guidance to assist schools with the implementation of the new requirements.

            SED cannot create or allocate funding in conjunction with a rulemaking; therefore, districts are expected to use local funds to implement the requirements of the proposed rule. SED believes that the importance of ensuring student health and safety outweighs any attendant costs. Additionally, as noted in the Regulatory Impact Statement published with the proposed rule, the Department anticipates that school districts will be able to utilize existing staff to offset costs of implementing the reporting, documentation, and debriefing requirements.

            COMMENT: A commenter requested clarification as to whether the new regulations apply to school resource officers (SRO)/special patrol officers (SPO), who operate under law enforcement. Another commenter suggested there be an allowance for the use of mechanical restraint, (i.e., handcuffs) when used by an SRO for emergency purposes only. Another commenter recommended explicitly naming SRO and police officers so that there is no ambiguity that they fall under sections 19.5(c) and (d) and to acknowledge that SROs are likely to engage in physically restraining students and using force in some instances.

DEPARTMENT RESPONSE: The proposed rule applies to any teacher, administrator, officer, employee, or agent of a school, as defined in proposed section 19.5(b)(9). A non-substantial revision has been made to the proposed rule to clarify that “agent” includes, but is not limited to, school resource officers.[1]  

            COMMENT: Multiple commenters suggested that the regulations should include effective enforcement and accountability measures for schools that do not follow the rules and regulations, including the withholding of funding, reporting to authorities, and audits by SED.

            DEPARTMENT RESPONSE:  The entities included in the definition of school in proposed section 19.5(b)(9) are subject to oversight by SED.  Violations of SED regulations may result in adverse findings in a regulatory proceeding or lawsuit.  Moreover, a willful violation of a regulation may result in the consequences described in Education Law section 306 (2): removal of school officers or withholding of State aid.

            COMMENT: Several commenters asked SED to consider how the proposed regulations affect approved preschool 4410 programs that are required to obtain day care center licensure. The conflict in the proposed regulations and those established by the Office of Children and Family Services’ (OCFS) (e.g., sections 418-1.9(g) and 418-1.9(h) of the Day Care Regulations) will create conflicts and confusion and a different standard of care for preschoolers in these programs. The commenters recommend amending the proposed regulations to include a stipulation that, for any conflict in these regulations by a dual-licensed program, the requirements of the regulations adopted by SED shall prevail.

            DEPARTMENT RESPONSE: SED will coordinate with OCFS concerning implementation of the proposed regulations.  To the extent that any provision of these regulations conflict, the higher standard that offers more protection to students will prevail. No changes to the proposed rule are necessary. 

Definitions

COMMENT: One commenter recommended clarifying that “aversive interventions” do not include deep muscle squeeze or other sensory input prescribed by an occupational or physical therapist as part of a treatment plan/individualized education program (IEP). Some commenters recommended that the definition of aversive intervention be revised to include other interventions (i.e., electric shock, hitting, pinching, and the use of chemical restraint). A commenter also recommended that the reference to “brief physical prompts” be removed and addressed in training.  Alternatively, the commenter suggests that a formal definition be added as this phrase could be interpreted to mean that an action could be permissible if “brief”, even if violent or forceful.  

            DEPARTMENT RESPONSE: SED declines to provide further clarification as the proposed definition of “aversive interventions” excludes interventions medically necessary for the treatment or protection of the student and prohibits the use of any intervention intended to induce pain or discomfort for the purpose of eliminating or reducing student behavior. The proposed definition of corporal punishment includes any act of physical force upon a student for the purpose of punishing that student, regardless of how brief. No changes to the proposed rule are necessary.

COMMENT: A commenter argued that the proposed definition of “physical escort” is too permissive and best characterized as a physical prompt.  The commenter recommended clarifying the difference between students moving under their own power/locomotion and staff immobilizing them.  This commenter recommended revising the proposed rule to define “physical prompt” using the proposed definition of “physical escort” and define “physical escort,” in turn, to mean any technique used to immobilize the legs or torso of a student to transport a physically resistant student to a safe location. Another commenter stated that Cornell's Therapeutic Crisis Intervention in Schools (TCIS), used by most New York districts, does not allow the use of "physical escort” and requested clarification of the term "acting out" used within the definition of physical escort. Another commenter expressed concern that “physical restraint” involves students walking with no hands on them and asked if a two-person walk/assist would be a physical escort or physical restraint.

            DEPARTMENT RESPONSE: SED’s definition of “physical escort” is consistent with the term’s definition in USDE’s Office of Civil Rights Data Collection (CRDC).  If the technique used to transport a physically resistant student involves immobilization, it would constitute physical restraint.  The proposed rule does not require schools to use a specific training program or specific techniques, such as a physical escort. Whether a student’s behavior is considered “acting out” would be case-by-case decision.  No changes to the proposed rule are necessary.

COMMENT: A commenter recommends defining restraint (within the context of emergency interventions) to be consistent with federal law.  The commenter also requests that restraint include physical escorts, if a student is forcibly moved without free agency of their own body. In addition, another commenter recommends that New York State (NYS) conform the regulation to federal guidance by allowing seclusion in emergency situations only.

            DEPARTMENT RESPONSE: SED’s definition of “physical restraint” is consistent with the definition in USDE’s CRDC.  SED agrees that the technique used to transport a student constitutes physical restraint if it involves forcibly moving the student and immobilizing or reducing the ability of the student to move their arms, legs, body, or head freely.

COMMENT: One commenter suggested clarifying the definition of “seclusion,” as the proposed rule could be interpreted as preventing a student from leaving any room, even if staff are present. Another commenter indicated that in certain situations, a timeout room door may need to be blocked to ensure student safety. Multiple. commenters expressed that seclusion is a necessary emergency intervention in schools that serve non-verbal, students with profound autism, with significant behavioral needs. The commenters stressed that by not allowing staff to hold doors shut when a student has escalated to a dangerous level, more restraints will occur, which risks student and staff safety. In addition, the commenter expressed concerns that by removing this intervention from the highest need students, staff will more frequently resort to contacting the police, which may lead to increased emergency room visits and the use of medical restraints. The commenter also expressed concerns that if not allowed in NYS, schools or the agencies may be compelled to discharge or decline those students requiring this level of intervention. Another commenter recommended that the prohibition of seclusion include use of “time out rooms” as there is no quantitative or qualitative difference between timeout and seclusion and any time a student is involuntarily to a room or area by him or herself (conference rooms, hallways, and any other space), it is seclusion.

            DEPARTMENT RESPONSE: The proposed rule defines “seclusion” as the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving or they may perceive that they cannot leave at will.  Timeout, by contrast, involves the monitored separation of a student in a non-locked setting for the purpose of de-escalation, regaining control, and preparing the student to meet expectations to return to their education program.  Blocking a timeout room door would constitute seclusion and is prohibited. No changes to the proposed rule are necessary.

            COMMENT: A commenter recommended expanding the definition of “timeout” and “timeout room” and differentiating between use of timeout, based on the principle of punishment, and a “calm down area” or “de-escalation room,” as these terms are more impactful and represent adult behaviors that should be occurring.  Another commenter requested clarification as to whether same-day notification pertains only to use of a timeout room, or if it includes any "time out" imposed in connection with a student’s instructional program.  The commenter recommends clarifying that timeout does not include “exclusionary time-out” (i.e., removing a student from an activity but not from the room or area of activity).  Several commenters expressed concern that student-utilized de-escalation strategies such as sensory breaks, taking a walk or working in a quieter location should not be included in the definition of “timeout” or require parent notification or development of a BIP.

            DEPARTMENT RESPONSE: The definition of timeout in section 19.5(b)(11) has been revised to clarify that using coping skills and other calming strategies are not considered timeout and that timeout must be used in the manner authorized in section 19.5(d). If “timeout” or removing a student away from an activity involves the monitored separation of such 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, it would constitute timeout and require same day notification consistent with the proposed rule’s parental notification requirements.  No changes to the proposed rule are necessary.

            COMMENT: One commenter suggested that the prevention of property damage should be covered in training and not explicitly permitted to use physical restraint in the rule. Several other commenters expressed concern that the proposed regulations will serve to preclude school staff from intervening in a scenario in which a student is destroying school property, interrupting instruction, and provoking fear and anxiety in fellow students and staff and they would have no recourse other than calling law enforcement which could potentially escalate the situation to a criminal matter.

            DEPARTMENT RESPONSE: The proposed amendment limits the use of physical restraint in response to the destruction of property only in those situations where the property damage would result in imminent harm to the student or others and when the student has not responded to positive, proactive intervention strategies.  No changes to the proposed rule are necessary.

            COMMENT: A commenter notes that timeout sometimes appears as two separate words ("time out") and sometimes with a hyphen ("time-out") in guidance and current section 200.15.

            DEPARTMENT RESPONSE: The proposed rule defines the term “timeout” and replaces “time out room” with “timeout” or “the use of timeout” throughout. “Timeout” will be used in future guidance issued by SED. No changes to the proposed rule are necessary.

Prohibition of the Use Corporal Punishment, Aversive Interventions and Seclusion         

COMMENT: One commenter suggested that the regulations allow agency- or student-specific allowances for the use of seclusion as an emergency intervention when other less restrictive interventions have been unsuccessful, and the student would require other emergency interventions beyond restraint. Another commenter described the “emergency intervention” language in section 200.22 as discriminatory and inappropriate as applied to students with disabilities. Another commenter recommended explicitly updating 200.22(c) and (d) with the provisions of proposed section 19.5, verbatim, as to avoid confusion.

            DEPARTMENT RESPONSE: The proposed amendment revises section 200.22 to align with the requirements of proposed section 19.5 that apply to all students and replaces the term “emergency interventions” in section 200.22(d) with “physical restraint.”   Seclusion was not permitted as an emergency intervention under the current regulations and continues to be prohibited under the proposed amendment, without exception.

Authorized Limited Use of Timeout and Physical Restraint.

            COMMENT: A commenter questioned how provisions of the proposed rule precluding staff from restricting a student’s ability to communicate apply to students who use sign language or an assistive communication device. 

            DEPARTMENT RESPONSE: Any physical restraint techniques used with students who use sign language, or a communication device, must still allow the student the ability to communicate with staff, including the ability to communicate distress. No changes to the proposed rule are necessary.

            COMMENT: A commenter disagrees with the rule’s prohibition on using physical restraint as a planned intervention on a student’s IEP, Section 504 accommodation plan, behavioral intervention plan (BIP), or other plan developed for a student by the school.  The commenter questions how staff will know under what circumstances how and when to use restraints and the restraints that can and should not be used with an individual for each student. The commenter asserts that TCIS requires that the criteria for using physical restraint must be included in a student’s individual crisis management/safety plan.  A lack of guidance, the commenter argues, prescribes it and that without such documentation, lack of guidance will lead to miscommunication, promote reactive versus proactive measures interventions, and possible cause harm to students. Another commenter indicated that it would not be feasible to monitor hundreds of BIPs in order to use timeout or restraint. Another commenter recommended noting on a BIP that physical intervention may only be considered in cases of severe and continuous aggression, self-injury, or property destruction. Another commenter indicated that the Office for People with Developmental Disabilities’ (OPWDD) regulations require that all use of interventions, including use of physical restraint, be prescribed in a behavioral intervention plan (BIP) and recommended that for those programs that are regulated by OPWDD, SED’s regulations pertaining to BIPS should align. 

            DEPARTMENT RESPONSE: Consistent with existing requirements relating to the use of emergency interventions, physical restraint cannot be used as a planned intervention. 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 use of physical restraint.  Such descriptions must unambiguously indicate that physical restraint is only to be 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. SED believes that adequate staff training in proactive measures and de-escalation techniques will assist staff in the decision as to when the use of physical restraint is necessary.  The proposed rule 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. 

            Approved private schools whose residential facilities are licensed by OPWDD must comply with SED’s proposed requirements relating to the use of physical restraints.

            No changes to the proposed rule are necessary.

COMMENT: One commenter indicated that requiring a nurse to examine a student after restraint would create a need for additional funds.

            DEPARTMENT RESPONSE:) A non-substantial revision has been made to the proposed rule to require that a student be assessed by either a school nurse or other medical personnel, only when an injury has been sustained or believed to have been sustained.  The revision also clarifies which licensed healthcare professionals are considered medical professionals.  The decision to hire a school nurse is a budgetary decision made by a school. While the requirement to have a student suspected of injury assessed medically may create added costs, the Department believes that ensuring the health and safety of students is of paramount importance.

COMMENT: One commenter requested that SED define “reasonable attempts” to contact the parent for same day notification. Another commenter indicated that they were encouraged by the updates to increase guidance around same day notification to parents and recommended that parents: (1) receive notification of updates to school policy and procedures; and (2) receive a point of contact in the school or at SED for any questions.  A couple of commenters indicated that parent communication must not only be timely but accessible and be provided in the family’s native language or preferred mode of communication.  The commenter also recommended that guidance be provided on how to address hard to reach families. Another commenter suggested that parents be offered a meeting when interventions occur, within a specific timeframe articulated by statute or regulation, to ensure schools are using these interventions as a last resort.

            DEPARTMENT RESPONSE: The definition of ‘‘reasonable attempts’’ can only be determined on a case-by-case basis. The proposed regulations require schools to post their policies and procedures. It is expected that schools notify parents of revisions to their policies and procedures to comply with the proposed rules.  SED will consider issuing guidance to schools, parents, and other stakeholders about the new requirements, including contact information for questions. Schools are responsible for ensuring the notification of the use of timeout and physical restraint is accessible to parents.  The specific procedures used to comply with the proposed parent notification requirements is best determined at the local level. No changes to the proposed rule are necessary.

COMMENT: A commenter stated that the record-keeping burden created by the requirement tis substantial and onerous.  Another commenter asked if a specific form will be required for documenting use of timeout and physical restraint. A group of commenters expressed concern that providing parents with a copy of restraint and timeout forms could cause confusion, misinterpretation, and the unwarranted dissemination of personal or protected information.

            DEPARTMENT RESPONSE: SED has determined that it is educationally sound for schools to document the positive, proactive intervention strategies used prior to using timeout or physical restraint to support informed data-driven decision-making and prevent or reduce the future need for the use of timeout or physical restraint with a student. SED is not requiring a specific form for schools to use to maintain the required documentation for incidents involving the use of timeout and/or physical restraint at this time.  No changes to the proposed rule are necessary.

            COMMENT: A group of commenters indicated that it is unrealistic to expect a school administrator/designee to debrief with staff after every incident of timeout. Another commenter suggested making the requirements for debriefing more specific to ensure positive results. Several commenters requested model forms and checklists for debriefing. Another commenter suggested adding a trauma-informed training component for staff who conduct post-restraint debriefing. Another commenter suggested that in addition to staff and student debriefing sessions, the proposed amendment include a parent debriefing on the day the incident occurred.

            DEPARTMENT RESPONSE: SED is committed to ensuring safe learning environments for all students and believes that debriefing after every incident in which timeout and physical restraint is used on a student is an important evidence-based technique to prevent or reduce future instances of the use of timeout, help identify areas for improvement, and support staff and students. School administrator designees may be used to meet the reporting and debriefing requirements under the proposed rule.  SED does not believe that additional requirements for debriefing are required at this time.  SED will explore issuing guidance to assist schools in implementing the new debriefing requirements. The proposed rule requires that same day notification be provided to parents following the use of timeout and/or physical restraint, including an offer to meet regarding the incident.  It would not be feasible in most cases for notification and a meeting to occur on the same day as the incident.  No changes to the proposed rule are necessary.

            COMMENT: A group of commenters requested additional details as to who is required to receive annual training on timeout and physical restraint procedures, including clarification as to whether it includes all principals, bus drivers, general education teachers and substitutes.  These commenters asked if SED will be issuing a list of trainings that meet the “evidence-based” criteria referenced in the proposed amendments. One commenter recommended requiring annual training for "All staff involved in student management" instead of “all staff.” Another commenter recommended increasing the availability of crisis intervention and trauma-informed training for teachers. Another commenter asked what the all-staff training will include. Multiple commenters requested that SED phase in the training requirements to allow schools to plan for expenses and staffing. One commenter suggested that all staff be trained on SED regulations regarding seclusion and restraint, principles of behavior, classroom and behavior management, and de-escalation techniques. Another commenter suggested that all schools require Licensed Behavior Analysts (LBAs) or Board Certified Behavior Analysists (BCBAs) to be involved in all behavioral interventions. Another commenter recommended that staff conducting physical restraint have certification as required in the Keeping All Students Safe Act (H.R. 3470). Another commenter suggested requiring staff be trained on de-escalation techniques specifically for students with disabilities

            DEPARTMENT RESPONSE: Local schools and school districts are allowed to decide which staff members require annual, evidence-based training in safe and effective developmentally appropriate timeout and physical restraint procedures. SED does not maintain a list of training programs, nor can it endorse specific training programs or the certification that staff must have. Such decisions are best made locally, taking into consideration the student population served. SED has determined that it is important that all staff be trained on a 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, not just staff involved in student management. SED has also determined that it is necessary for the training requirements to be implemented upon adoption of the proposed rule to ensure student health and safety. Schools are not required to employ LBAs or BCBAs.  No changes to the proposed rule are necessary.

            COMMENT: A group of commenters requested clarification as to whether districts that do not use physical restraint need to develop a policy regarding physical restraint procedures.

            DEPARTMENT RESPONSE: SED recommends that all schools develop a policy describing such prohibition to ensure staff are aware of the policy and know what to do in situations that pose an imminent danger of serious physical harm to the student or others. Schools cannot ensure that they will never encounter a situation that warrants physical restraint.  No changes to the proposed rule are necessary.

Annual Reporting/Data Reporting Requirements

            COMMENT: A group of commenters requested clarification regarding the responsibility of districts of residence for the oversight of implementation and reporting data for State approved private school and preschool programs.  These commenters indicated that it is not feasible for districts to be charged with this responsibility if the regulations require this. Another group of commenters expressed concern about the high level of reporting required (many characterizing it as an unfunded mandate) and asked whether SED will be working with data management resources to assist the field with these increased requirements and their implementation. Another commenter indicated that they do not support replacing semi-annual reporting with annual reporting. Another commenter suggested that additional data points be collected for every incident of restraint and seclusion. One commenter suggested that NYSED develop a state registry of all schools that use timeout, restraint, and seclusion.

            DEPARTMENT RESPONSE: The proposed rule requires districts to report data for all students for whom they have committee on special education (CSE) responsibility, including students placed by the CSE in educational programs outside the district. SED will be working with districts and will consider issuing guidance to assist schools with the new reporting requirements. The proposed amendment to require annual reporting beginning with the 2024-2025 school year, in the Department’s view, balances the need for student-level data related to corporal punishment, aversive interventions, seclusion, timeout, and physical restraint while aligning state reporting to the federal CRDC and reducing the burden of multiple SED office-specific reports. The proposed new reporting requirements will include disaggregated data. No changes to the proposed rule are necessary.

Requirements Relating to Students with Disabilities

            COMMENT: A commenter states that the definition of deliberate inappropriate use of restraints in section 200.15 contemplates physical restraints being placed on an individual treatment plan or BIP, which is inconsistent with the rule’s prohibition on placing restraints in such plans.

            DEPARTMENT RESPONSE: The language referenced by the commenter is not new and is consistent with the Justice Center’s definition of deliberate inappropriate use of restraints.  The proposed rule codifies, in sections 19.5 and 200.22(d), SED’s longstanding position that physical restraint cannot be used as a planned intervention. No changes to the proposed rule are necessary.

            COMMENT: One commenter described the “emergency intervention” language in section 200.22 as discriminatory and inappropriate towards students with disabilities.

            DEPARTMENT RESPONSE: Section 200.22 has been revised to align with the requirements of proposed section 19.5 that apply to all students and replace the term “emergency interventions” in section 200.22(d) with “physical restraint.” No other changes to the proposed rule are necessary.

Miscellaneous

            COMMENT: One commenter suggested that any time a student is restrained, school officials must conduct a functional behavioral assessment (FBA) and develop a BIP within 20 school days.  The commenter further recommends that such restraints be documented with fidelity and that data be collected regularly.

            DEPARTMENT RESPONSE:  These comments are outside the scope of the proposed rule; no changes are necessary.  The proposed rule must be read in conjunction with other requirements in Commissioner’s regulations that require the development of an FBA and BIP in certain circumstances, including when a student exhibits persistent behaviors that impede his or her learning or that of others if consistently implemented general school-wide or classroom-wide interventions have been unsuccessful and when the student's behavior places the student or others at risk of harm or injury. While an FBA and BIP can be used for students without disabilities, there are no laws requiring a school to develop an FBA or BIP for such students.  For students with disabilities, the Commissioner’s regulations already require that the implementation of the student’s BIP include regular progress monitoring of the frequency, duration and intensity of the behavioral interventions at scheduled intervals, as specified in the BIP and on the student’s IEP.

COMMENT: A commenter noted corrections needed to proposed sections 19.5(c), 19.5(d)(2) and 100.2(bb)(2) relating to numbering and a missing preposition.

DEPARTMENT RESPONSE: SED has made the technical amendments suggested by the commenter as non-substantial revisions, as described above.

COMMENT: One commenter urged SED to support funding in the 2024 Budget to support the behavioral health needs of children and families and the Solutions Not Suspensions Act (S1040).  Two commenters supported Assembly bill A3311 to end restraint and seclusion.   Another commenter recommended that SED adopt language from Assembly bill A3311 bill in the proposed regulations.   

            DEPARTMENT RESPONSE: These comments are outside the scope of the proposed rule; no changes are necessary.

COMMENT: One commenter suggested eliminating the practice of “informal school removals” and requiring schools and districts to suspend students for a violation any time they want to send a student home following a restraint incident. Another commenter suggested that all students should have a crisis intervention team. A third commenter made recommendations regarding training and resources for early childhood education.

            DEPARTMENT RESPONSE: These comments offer recommendations for issues outside the scope of the proposed rule; no changes are necessary.

 

 

[1] Although not defined in statute, the New York Civil Liberties Union has defined SROs as “law enforcement officers assigned to schools including school security guards, private security guards, sheriff’s deputies, or any uniformed employees of a Law Enforcement Agency who are assigned on a full or part-time basis to work in a District school or program.” (see NYCLU MOU Recommendations for Schools and Police see Section III.16. [last accessed July 10, 2023])