Under New York’s law and regulations, there are several well-settled guiding principles for physically interacting with students with disabilities: corporal punishment is prohibited; the use of aversive interventions has been eliminated; and emergency physical interventions are permitted, but only under very limited circumstances. Plus, schools may use time-out rooms for certain students, but only when recommended by the Committee on Special Education and in accordance with a legally mandated district policy.
Based on recent guidance from the United States Department of Education, in July 2023 the Board of Regents adopted a series of amendments to Parts 100 and 200 of the Regulations of the Commissioner of Education designed to further ensure student safety during all instances of physical intervention. The July 17, 2023 Board of Regents Item sets forth the new regulatory language, the amended regulations, and the deleted provisions for further reference. Highlights of these changes include the following:
- Expanding the prohibition against corporal punishment to also prohibit the use of seclusion and prone restraint, which is defined as a physical or mechanical restraint while the student is in the face down position.
- Physical restraints (i.e., emergency intervention) remain permissible, but only 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.
- In general, 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 intervention strategies.
- Increased documentation and parental-notice requirements following the use of a physical restraint or timeout, including a debriefing amongst school administrators after each incident.
- Mandatory annual training for all staff on the school’s policies and procedures related to the use of timeout and physical restraint.
- Mandatory annual evidence-based training in safe and effective timeout and physical restraint procedures for any staff member who may be called upon to implement timeout or physical restraint.
- New reporting requirements related to corporal punishment, aversive interventions, seclusion, timeout and physical restraints. This reporting shall be done through SED’s Student Information Reporting System (SIRS).
- Prohibition against using physical restraint as a planned intervention on a student’s individualized education program, Section 504 plan or behavioral intervention plan.
- Clarifying that these rules and prohibitions also apply to school resource officers.
These new rules went into effect on August 2, 2023. Schools are encouraged to review their policies and procedures on these practices to ensure they are compliant at the start of the school year. Harris Beach’s Education Team will closely monitor this and related special education legal issues. If you have any questions about the matters in this legal alert or any other related legal matters, please reach out to attorney Jeffrey J. Weiss at (716) 200-5141 and firstname.lastname@example.org; attorney Anne M. McGinnis at (585) 419-8613 and email@example.com; attorney Andrew R. Mark at (716) 200-5263 and firstname.lastname@example.org, attorney Howard J. Goldsmith at (518) 701-2736 and email@example.com; or to the Harris Beach attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.