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New York State Adopts Extensive Regulations Affecting Use of Restrictive/Intrusive Interventions With Developmentally Disabled Persons


Effective April 1, 2013, the New York State Office for People With Developmental Disabilities (“OPWDD”) adopted regulations that provide extensive requirements for interventions used in residential facilities and day programs licensed or operated by OPWDD to modify or control challenging behavior. Click here to read the new regulations. The regulations set forth various new definitions, prohibitions, reporting requirements, required policies, procedures and committees, and penalties for non-compliance. Providers affected by the new regulations include: (i) all residential facilities certified or operated by OPWDD, including family care homes; (ii) all facilities certified by OPWDD, except free standing respite, clinical treatment facilities and diagnostic and research clinics; (iii) day habilitation services (whether or not provided in a certified facility); (iv) prevocational services (whether or not provided in a certified facility); and (iv) community habitation (both hourly and Phase II). The regulations require that that an individualized written plan that outlines specific interventions designed to modify or control challenging behavior (“behavior support plan”) be developed and approved in accordance with certain procedures and requirements, including obtaining informed consent prior to implementation. The medication requirements only apply to facilities listed in item (i) above. The requirements regarding behavior support plans apply May 31, 2013 for new behavior support plans and May 31, 2014 for revised/renewed behavior support plans.

The regulations broadly define “challenging behavior” to include undesirable and/or socially unacceptable behavior that interferes with the acquisition or use of desired skills or knowledge, interferes with the performance of everyday activities, undermines the potential for increased self-determination and independence, interferes with the rights of others, disrupts social functioning, and/or causes injury to self or others. These behaviors may include psychiatric symptoms or overt reactions to symptoms that may be expressed as challenging behaviors, such as manic behavior, aggressive behavior, compulsive behavior or verbal threats based on paranoid beliefs or perceptions.

The regulations prohibit the use of aversive conditioning, which is defined as the application of a physical stimulus that is uncomfortable, painful or noxious to modify or change behavior. Examples of aversive conditioning include: (i) water and other mists or sprays; (ii) noxious odors or tastes; (iii) corporal punishment; (iv) air blasts; (v) blindfolds; (vi) white noise helmets; and (vii) electric skin shock. Among other prohibitions, the regulations also prohibit use of time out and mechanical restraining devices in emergencies, barred enclosures or bed linens to restrain movement, and sleep or food deprivation.

Pursuant to the regulations, any behavior support plan to address challenging behavior that incorporates a limitation on a person’s rights and/or a “restrictive/intrusive intervention” (as described below) must be approved by a behavior plan/human rights committee formed by the agency in accordance with the regulations and approved with the written informed consent of the person (or if such person does not have capacity, a parent, guardian or surrogate).

Restrictive/intrusive interventions include: (i) intermediate physical interventions (restrain in standing or sitting position); (ii) restrictive physical interventions (fully restrain on floor); (iii) time outs (time out room or otherwise); (iv) use of any mechanical restraining device with the intent to modify or control challenging behavior; (v) use of medication solely to prevent, modify or control challenging behavior; and (vi) other professionally accepted methods to modify or control behavior which are determined by agency/facility policy to be restrictive/intrusive interventions, because they impose a risk to a person’s protection or encroach unduly on a person’s normal activities.

The use of a restrictive/intrusive intervention often triggers a reporting requirement, including by electronic means, to OPWDD. The use of certain restrictive/intrusive interventions more frequently than the thresholds set forth in the regulations requires a comprehensive review. Generally, use of the above methods to facilitate a medical or dental procedure is acceptable, and physical contact necessary to address an immediate health or safety risk to the person or others, and which does not involve the use of more force than necessary, shall not be considered a violation of the regulations or physical abuse, subject to certain conditions set forth in the regulations.

OPWDD specifically states that it discourages the use of restrictive/intrusive interventions, and the regulations aim to limit their use in favor of positive behavioral approaches. Unless there is a clear risk to the health or safety of the person or others, or a violation of others’ basic personal rights, any restrictive/intrusive intervention or limitation on a person’s rights as specified in a behavior support plan may be employed only after less intrusive or more positive interventions have been tried and have not been sufficiently successful.

Generally, non-compliance with these regulations constitutes patient abuse and would be a reportable offense.

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Please contact Eve Koopersmith, Esq., Jay Klear, Esq. or your usual GW contact if you have any questions about the contents of this Legal Alert.



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