Justices Decline Appeal on ‘Aversive Interventions’

By Mark Walsh — April 29, 2013 3 min read
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The U.S. Supreme Court on Monday declined to disturb a lower court ruling that upheld a New York state prohibition on the use of electric shock and other “aversive interventions” on children with disabilities.

The New York regulation was challenged by parents who believe such interventions, which also include food limitations and physical restraints, are proper for their children, who commit self-injurious behaviors such as banging their heads on walls and pulling out their own teeth.

The parents in the suit are among many in New York state who send their children to the Judge Rotenberg Center in Canton, Mass., a facility that until recently used shock therapy and continues to use other aversive methods. The New York regulation applies to whether the state will pay for the out-of-state placement.

The parents argued that the 2006 New York state education regulation undermines their children’s right to a free, appropriate public education under the federal Individuals with Disabilities Education Act. The parents also raised claims under the Rehabilitation Act of 1973 and the 14th Amendment to the U.S. Constitution.

In a ruling last August, a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled 2-1 that the state’s prohibition of one possible method of dealing with behavioral disorders, such as aversive interventions, does not undermine a child’s right to a free, appropriate public education under the federal special education law.

The appeals court noted that Massachusetts had recently adopted its own regulation that bars some of the interventions used at the Judge Rotenberg Center, including spanking, hitting, and skin shock. The Massachusetts rule allows certain other methods, such as loud noises, bad odor and taste stimuli, and short delays for students’ meals.

The 2nd Circuit court said the change did not make the parents’ challenge to the New York regulation moot, because New York’s prohibition on aversive interventions is broad, and a successful challenge could permit families to seek certain therapies elsewhere.

However, the court rejected the parents’ arguments that the New York regulation prevented them from getting an individualized education plan under the IDEA that was most appropriate for their children. The appeals court said the New York rule represented the state’s considered judgment about what is best for the safety and education of its children.

“New York adopted the ban of aversives only after the [state] Education Department made site visits, reviewed reports, and considered complaints from parents as well as school districts and others raising concerns about aversive techniques,” said the opinion by Chief U.S. Circuit Judge Dennis Jacobs. “It concluded that aversive interventions are dangerous and may backfire and that positive behavioral interventions are sufficiently effective to provide a [free, appropriate public education].”

“There is an ongoing debate among the experts regarding the advantages and disadvantages of aversive interventions and positive-only methods of behavioral modification,” Judge Jacobs added. “The judiciary is ill-suited to decide the winner of that debate.”

In their appeal to the Supreme Court in Bryant v. New York State Education Department (Case No. 12-932), the parents argued that the federal courts of appeals were split on the question of deferring to state authorities about the appropriateness of certain interventions.

“This case involves the collision between the state’s power to make general policy and the student’s right to individual consideration, and raises the question of whether the state may foreclose, by categorical rule, the use of an otherwise lawful, effective, and available treatment method in all circumstances,” the parents’ brief said.

In a brief urging the justices not to take up the case, the New York state education department said its 2006 regulation was prompted by a serious review of the scientific literature on aversive therapies.

“There is an emerging consensus among psychologists, policymakers, and disability-rights advocates that aversive behavioral interventions are dangerous and inappropriate,” the state said in its brief.

The state pointed out that in addition to the 2011 adoption of the Massachusetts ban on aversives (which would not affect some children receiving the treatments at the Judge Rotenberg Center because of a grandfather clause), the federal government recently informed the center it would end Medicaid reimbursements for all services at the center as long as the center used aversives.

Neither the state of Massachusetts nor the Judge Rotenberg Center filed briefs in the Supreme Court appeal, which the justices declined without comment on April 29.

A version of this news article first appeared in The School Law Blog.