BILL NUMBER: S900

SPONSOR: BRISPORT
 
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 clarify, among other items, 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:

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. Similarly, prior to the FDA
seeking to ban such practices, several former residents who wore the
device for years testified, sharing their negative experiences. "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,"
said one. "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." Notably, Chief Judge Srinivasan
dissented strongly 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."
Nonetheless, 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 legislation will codify New York's agreement
with the U.S. Food and Drug Administration's assessment, and the over-
whelming weight of authority, to cease such practices where New York's
most vulnerable are concerned.

 
PRIOR LEGISLATIVE HISTORY:

2021-22: S8935.

 
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.