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.
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.
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.
