Dated October 19,.2006

Barbara Trader

Executive Director,

TASH

29 W Susquehanna Avenue Suite

210 Baltimore, MD 21204

Dear Director Trader:

Thank you for your August 23, 2006 electronic correspondence expressing
concern regarding the New York State Department of Vocational and
Educational Services for Individuals with Disabilities\' preparation to
implement State regulations on Aversive Behavioral Intervention
(Regulations). It is our understanding that the other organizations
listed in the electronic transmission (The Self-Advocacy Association of
New York State, Inc; The RespectABILITY Law Center; The Family Alliance
to Stop Abuse and Neglect; The Public Interest Law Center of
Pennsylvania; and The\
Advocacy Institute) also object to implementation of these Regulations.

As you are aware, the Individuals with Disabilities Education Act (IDEA
or Act)\
requires that in order for a State to be eligible to receive funds under
Part B of the Act, the State must, among other conditions, ensure that a
free appropriate public education (FAPE) is made available in the State
to all children with specified disabilities in mandated age ranges. 20
U.S.C. 1412 (a)(1). The term \"FAPE\" includes, among other elements,
special education and related services, provided at no cost to parents,
in conformity with an individualized education program (IEP). 20 U.S.C.
1401(9). The\
Act provides a strong preference for educating children with
disabilities in regular classes with appropriate aids and supports.
Specifically, the Act provides that States must have in effect policies
and procedures ensuring that, to the maximum extent appropriate,
children with disabilities, including children in public or private
institutions or other\
care facilities, are educated with nondisabled children, and that
special classes, separate schooling, or other removal of children with
disabilities from the regular educational environment occurs only if the
nature or severity of the disability is such that education\
in regular classes with the use of supplementary aids and services
cannot be achieved satisfactorily. 20 U.S.C 1412 (a)(5)(A).

The final decision on the provision of special education and related
services for any child with a disability rests with the IEP Team,
including the child\'s parents. IDEA\
and the final Part B implementing regulations\' require that the IEP
Team consider, in the case of a child whose behavior impedes the
child\'s learning or that of others, the\
use of positive behavioral interventions and supports, and other
strategies, to address that behavior. 20 U.S.C. 1414(d)(3)(B)(i) and
(C), and 34 CFR §300.324(a)(2)(i).[^1]

Thus, while the Act

requires that an IEP Team consider the use of positive behavioral
interventions and supports, and as such, emphasizes and encourages the
use of such supports, it does\
not contain a flat prohibition on the use of aversive behavioral
interventions.\
Whether to allow IEP Teams to consider the use of aversive behavioral
interventions\
is a decision left to each State.

Accordingly, based on the information we have reviewed, we do not
believe the New\
York Regulations conflict with IDEA, so long as the requirements of the
Act and its regulations are met. Consistent with Federal-State relations
and authority, OSEP\
cannot provide an opinion on whether the State\'s regulations are
consistent with New York civil and criminal laws and the New York
Constitution.

This response regarding a policy, question, or interpretation under Part
B of IDEA is\
provided as informal guidance, is not legally binding, is issued in
compliance with\
the requirements of 5 U.S.C. 553, and represents the interpretation by
the Department\
of Education of the applicable statutory or regulatory requirements in
the context of\
the specific facts presented.

> Sincerely,
>
> /s/
>
> John H. Hager

CC: Dr. Rebecca Cort

[^1]: Final regulations implementing the Individuals with Disabilities
    Education Improvement Act of 2004 will take effect on October 13,
    2006. 71 Fed. Reg. 46,540 (August 14, 2006) (to be codified at 34
    CFR Part 300).