Developmental Services - Behavioral Regulations/Three Person Committee

Behavior Procedures Regulations Group

Proposed Changes to the Regulations Pertaining to Fining   Microsoft Word*   Adobe PDF* 

“Fining” is presently defined by the Behavior Regulations (14-197 Chapter 5) as “the forfeiture of an object or participation in an event when an individual engages in a target dangerous or maladaptive behavior. The object or event must have been provided by the service provider and cannot be a personal possession or everyday event. This is a moderately intrusive intervention.”

At issue is whether any of the above language should be changed. It seems as if the first sentence is clear: if the person engages in certain specified target behavior (the exact definition of which should be spelled out in the written description of the program) either an object belonging to or accessible to the person is temporarily taken away or the person is temporarily denied access to or participation in an activity that the person normally finds pleasurable.

The second sentence is less clear. What, for instance, is an everyday event? Is going to work or to a center-based day program site is not “everyday” because presumably the person does not work on weekends? Is watching TV an “everyday” event? If a person is scheduled to go to an event, presumably pleasurable and reinforcing to the person (such as a sporting event or a dance) and then engages in the target behavior, and is consequently denied the opportunity to attend the event, has the person been “fined”? Is it still a “fine” if the person, not the provider, owns a radio and, with the permission of the person (remember, fining is a moderate program, so it needs the permission of the person; if there is a guardian and the guardian consents but the person does not, then the program becomes severely intrusive) the person loses the use of the radio after engaging in the target behavior?

I believe that answering these questions and clearing up the confusion about the definition of “fining” begins with a discussion of positive reward programs. The obverse of a fining program is a reward program. A reward program is of course entirely positive in nature: upon refraining from targeted behaviors or engaging in desired behaviors the person “earns” a special treat like a food item; or a special trip or outing; or a particular leisure activity that the person likes to do. In order to define fining, what I would first propose is that the Behavioral Procedures Regulations Group reach consensus on the following proposition: the refusal or failure to provide a reward in a positive program is not “fining”.
Assuming that we can reach consensus on that proposition, I then propose that if an activity or the use of property is not a reward in a positive program, the deprivation of that activity or property is fining. Section 5, the section on Positive Behavioral Supports in the Regulations, already states that the planning team “should approve all behavioral interventions”, and so it is reasonable that any reward program that is instituted must specify what the reward is. Then if the reward is not given or granted, the action of not giving or granting the reward is not confused with a “fine”. To say the same thing another way, if the reward as specified in a positive program is not given or granted, that action counts for nothing in terms of it being an aversive behavioral plan. It is simply a positive reward program for which the person did not earn the reward.

A quick rule of thumb to distinguish between fining and a reward program is as follows: If a person has, or ordinarily would have something, and someone takes it away as part of a program, that’s fining. If there is a plan for a person to earn something they don’t have, and they don’t earn it, that’s not fining.

Then, any other denial of participation in an activity, or any other non-emergency temporary taking of property based upon a person exhibiting target behaviors, or the denial of participation in any event or activity based upon the person engaging in target behaviors, is a fining program. Therefore the proposed regulation would read: “Fining: the forfeiture of an object or participation in an event when an individual engages in a target dangerous or maladaptive behavior. Fining does not include the refusal, when the person has not satisfied the requirements of the program, of a reward or consequence that is part of a positive behavioral support program that has been approved by the person’s planning team.”

Therefore in answer to the questions posed in the third paragraph above, not allowing a person to go to work or a day program because of exhibited target behavior, or not allowing the person to watch TV, or go to a dance or sporting event that the person wants to attend, or the loss of the use of a radio, because of the person engaged in the target behavior, would all be fining, unless there happened to be a positive program in place that specifically denominated the reward under the program to be one of those activities or the possession of that property. The effect of this definition is that there would be wide discretion given to planning teams to find and choose the most effective rewards for the person to engage in desired behavior, but at the same time we would be discouraging the denial of a person’s participation in activities or the deprivation of use of property as a negative consequence. Those negative consequences could only take place with the person’s consent, unless there was a guardian who gave consent and the Review Committees reviewed and approved the fining program as a severely intrusive plan.

(Note: the present definition has at the end “This is a moderately intrusive intervention.” I propose that this sentence be eliminated, in that it is superfluous. Section 7(A)(3) specifically lists “fining” as a moderately intrusive intervention.)

In addition to the above-suggested change to the definition of fining, the regulations at 7(A)(3) should be amended to add section (A)(3)(a):

7. Moderately Intrusive Interventions

1. Moderately intrusive interventions are characterized by a greater degree of limitation being imposed upon the individual, but the individual voluntarily complies with this imposition. Examples of moderately intrusive interventions include, but are not limited to:
   (1) Exclusionary timeout,
   (2) Overcorrection, and
   (3) Fining.
      (a) Any object or activity to be forfeited under a fining program because
      the person has engaged in target behavior must be specified in the written program. Consistent with §4(D)(2)    of these regulations the target behavior must also be specified in the written program.
2. An individual’s voluntary compliance in a moderately intrusive plan is essential. Coercion is not permitted, but planning teams must be mindful of the possibility of more extreme behavior if compliance is not achieved. Even in cases where a guardian has suggested a procedure, implementation is predicated upon the individual’s voluntary compliance.
3. Whenever a moderately intrusive plan is being considered, a member of the Office of Advocacy must be included in the planning team.
4. D. Blocking, depending upon how and when it is used, may be an emergency or a programmatic intrusive intervention.
   

Richard A. Estabrook, Esq.
Chief Advocate

June 28, 2005