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A01166 Summary:

BILL NOA01166
 
SAME ASSAME AS S00900
 
SPONSOREpstein
 
COSPNSRBores, Reyes, Sillitti, Gonzalez-Rojas, Raga, Simone, Burdick, Forrest, McMahon, Dinowitz, Mitaynes, Shrestha, Chandler-Waterman, Anderson, Weprin, Lupardo
 
MLTSPNSR
 
Add §498, amd §488, Soc Serv L
 
Prohibits the use of aversive conditioning which includes any procedure which causes obvious signs of physical pain, including but not limited to hitting, pinching and electric shock; prohibits the use of any procedure or punishment which denies a vulnerable person reasonable sleep, shelter, bedding, bathroom facilities and any other aspect expected of a humane existence; defines terms.
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A01166 Actions:

BILL NOA01166
 
01/13/2023referred to children and families
01/03/2024referred to children and families
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A01166 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1166
 
SPONSOR: Epstein
  TITLE OF BILL: An act to amend the social services law, in relation to prohibiting the use of aversive conditioning and other certain punishments   SUMMARY OF PROVISIONS: Section one adds a new section 498 to the social services law, providing that no programs funded or licensed by the State of New York shall administer to vulnerable persons any procedure that uses aversive condi- tioning. Section two modifies paragraph (e) of subdivision one of section 488 of the social services law, to remove person-specific authorization for the use of aversive conditioning, and to clarify that aversive conditioning includes electric shock procedures. Section three adds a new subdivision seventeen to section 488 of the social services law, defining "program" to include residential and non- residential public or private programs that provide services to vulner- able persons. Section four provides the effective date of this legislation.   JUSTIFICATION: This legislation shall be known as "Andre's Law," and is intended to ensure that New York does not contribute to any more children being sent to out-of-state institutions that engage in the aversive therapy prac- tices that were used on Andre McCollins. There is widespread agreement that the administration of electrical shocks as aversive therapy is not appropriate for anyone, including children and persons with disabilities. The broad consensus opposing this use of electrical shocks includes the U.S. Food and Drug Adminis- tration, the American Academy of Pediatrics, the American Academy of Developmental Medicine and Dentistry, the American Association on Intel- lectual and Developmental Disabilities, the International Association for the Scientific Study of Intellectual and Developmental Disabilities, the National Association for the Dually Diagnosed, the National Associ- ation of State Directors of Developmental Disabilities Services, and the National Association of State Directors of Special Education. In fact, Manfred Nowak, the UN's Special Rapporteur on Torture, has bluntly stat- ed: "This is torture." Accordingly, this legislation seeks to end the practice whereby New York State spends millions of dollars sending its children to out-of-state facilities that engage in such practices. Simply put, the use of electric shocks for aversive conditioning is painful, psychologically damaging, and often physically harmful. More- over, there is no justification for subjecting people to such unreason- able risk of injury, pain, and illness, because safe, effective, and less restrictive treatments are available and widely used. The FDA banned the use of such electrical devices as aversive therapy for both reasons, and both conclusions are consistent with the overwhelming weight of scientific literature on this topic, and actual treatment practices across the country. Indeed, the only remaining place in the country that still uses such devices, located in Massachusetts, express- ly acknowledges that such devices are intended to be painful. The FDA has identified numerous studies that reveal physical harm resulting from such devices, as well as negative emotional reactions such as fear, avoidance, aversion, anxiety, and depression, and appropriately sought to ban such practices. There are numerous examples of the harm resulting from these practices. For instance, one resident who had been subjected to such practices was tied to a restraint board for seven hours and shocked thirty-one times after he didn't take off his jacket when told to. The episode only became public a decade later, when a video of this resident screaming "Stop! Stop!" and "That hurts!" while being repeatedly shocked surfaced during a lawsuit brought by his mother. This resident spent more than a month hospitalized after the incident, never returning to the center that had administered the electric shocks. Several other former resi- dents who wore the device for years testified, sharing their negative experiences, with one stating: "Most of the times   after getting shocked I would get a very bad muscle cramp that would last me for one to two days. I would get burn marks on my skin." "My experiences from the GED   graduated electronic decelerator have affected me to this very day," said another. "I now suffer from a fear of authority, a fear of being controlled, and I panic when presented with either." Importantly, such practices are not necessary and are not recognized as medical best practices. The use of positive behavioral supports to address self-injurious or aggressive behaviors not only avoids the pain and other negative side effects described above, but is an effective treatment for people with self-injurious or aggressive behaviors. Unlike electric shocks, the use of positive behavioral supports is designed to produce durable, long term improvements. Accordingly, the use of posi- tive behavioral supports has been adopted by disability service and special education systems and by doctors, clinicians, service providers and education professionals across the country. In fact, there is only one single remaining entity in the United States still employing elec- tric shock devices. News outlets have reported that the "vast majority" of children sent to this facility have been sent there from New York. This legislation is necessary because, on July 6, 2021, the United States Court of Appeals for the District of Columbia Circuit issued an opinion stating that, although "no one disputes" that the FDA has the ability "to ban a device completely," the agency did not have the authority under 21 U.S.C. 360 to issue a ban on the use of such elec- tric shock devices that was targeted at "specific uses that states regard as legitimate medical practice." Chief Judge Srinivasan dissented from this opinion, arguing that the FDA's undisputed power to "ban a medical device altogether" means that the agency can similarly "exercise its banning authority in a more tailored fashion." It is notable that the divided court's opinion explicitly noted that this is "an area that is traditionally the province of state law." Accordingly, this legis- lation will codify New York's agreement with the U.S. Food and Drug Administration's assessment, and the overwhelming weight of authority, to cease such practices where New York's most vulnerable are concerned.   PRIOR LEGISLATIVE HISTORY: 2022: A10289 (Epstein) / S 8935 (Brisport) - Assembly Children and Fami- lies / Senate Rules   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: To be determined.   EFFECTIVE DATE: This act shall take effect on the sixtieth day after it shall have become a law. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made on or before such date.
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A01166 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1166
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 13, 2023
                                       ___________
 
        Introduced  by M. of A. EPSTEIN -- read once and referred to the Commit-
          tee on Children and Families
 
        AN ACT to amend the social services law, in relation to prohibiting  the
          use of aversive conditioning and other certain punishments
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The social services law is amended by adding a new  section
     2  498 to read as follows:
     3    §  498. Aversive conditioning. Notwithstanding any provision of law to
     4  the contrary:
     5    1. No program, agency or facility that is funded, operated,  licensed,
     6  or  approved  by  the state or an agency or political subdivision of the
     7  state shall administer or cause  to  be  administered  to  a  vulnerable
     8  person any procedure which uses aversive conditioning.
     9    2.  No program, agency or facility that is funded, operated, licensed,
    10  or approved by the state or an agency or political subdivision  of   the
    11  state  shall  use  any  form  of  physical contact or punishment that is
    12  otherwise prohibited by law, or would be prohibited if used on a  person
    13  who is not vulnerable.
    14    3.  No program, agency or facility that is funded, operated, licensed,
    15  or approved by the state or an agency or political  subdivision  of  the
    16  state  shall  use  any  procedure or punishment that denies a vulnerable
    17  person reasonable sleep, shelter, bedding, bathroom facilities  and  any
    18  other aspect expected of a humane existence.
    19    4. Any student with an individualized education program that is effec-
    20  tive  as  of  the  effective  date of this section shall be permitted to
    21  complete such program, provided that such student is not  subjected  to:
    22  aversive  conditioning; physical contact or punishment that is otherwise
    23  prohibited by law, or would be prohibited if used on a person who is not
    24  vulnerable; or any other procedure or punishment that denies  a  vulner-
    25  able  person reasonable sleep, shelter, bedding, bathroom facilities and
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03550-01-3

        A. 1166                             2
 
     1  any other aspect expected of a humane existence. Provided, however, that
     2  no further individualized education plans  shall  be  funded,  operated,
     3  licensed,  or  approved by the state or any agency or political subdivi-
     4  sion of the state, if any related program, agency, or facility connected
     5  to  such  individualized  education  program engages in any conduct that
     6  would otherwise be prohibited by this section.
     7    5. The provisions of  this  section  shall  apply  regardless  of  the
     8  location  of  the  relevant  conduct  or  the  residence of any impacted
     9  persons.
    10    § 2. Paragraph (e) of subdivision 1  of  section  488  of  the  social
    11  services law, as added by section 1 of part B of chapter 501 of the laws
    12  of 2012, is amended to read as follows:
    13    (e)  "Use  of aversive conditioning," which shall mean the application
    14  of a physical stimulus that is intended to induce pain or discomfort  in
    15  order  to  modify or change the behavior of a person [receiving services
    16  in the absence of a  person-specific  authorization  by  the  operating,
    17  licensing  or certifying state agency pursuant to governing state agency
    18  regulations]. Aversive conditioning may include but is not  limited  to,
    19  the  use  of  physical  stimuli  such  as noxious odors, noxious tastes,
    20  blindfolds, the withholding of meals and  the  provision  of  substitute
    21  foods in an unpalatable form [and], movement limitations used as punish-
    22  ment,  including  but  not  limited  to helmets and mechanical restraint
    23  devices and any procedure which causes obvious signs of  physical  pain,
    24  including but not limited to hitting, pinching and electric shock.
    25    § 3. Section 488 of the social services law is amended by adding a new
    26  subdivision 17 to read as follows:
    27    17.  "Program" shall mean any residential or non-residential public or
    28  private program that provides care, services, programs,  and/or  support
    29  to vulnerable persons.
    30    §  4.  This  act  shall take effect on the sixtieth day after it shall
    31  have become a law. Effective immediately, the addition, amendment and/or
    32  repeal of any rule or regulation necessary  for  the  implementation  of
    33  this  act  on its effective date are authorized to be made and completed
    34  on or before such date.
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