Appeals court upholds New York ban on skin-shock therapy and other “aversive interventions”

Rejecting a challenge from seven parents of children attending the highly controversial Judge Rotenberg Center, the U.S. Court of Appeals for the Second Circuit ruled August 20 in a 2-1 decision that New York did not violate federal law by banning a series of behavioral intervention techniques practiced exclusively at the center.

The parents contended that the techniques are necessary to treat their children’s particularly severe disabilities. Therefore, they argued that state’s ban on the techniques violated their children’s right to a “free appropriate public education” as required by the Individuals with Disabilities Education Act.

The court, in upholding a 2010 decision from the U.S. District Court for the North District of New York, found that the state Department of Education, when it enacted the ban in 2006, provided a reasonable basis for finding that the ban is necessary to protect children from harm and abuse.

“In sum, New York’s regulation prohibits only consideration of a single method of treatment without foreclosing other options,” the court stated. “Nothing in the regulation prevents individualized assessment, predetermines the children’s course of education, or precludes educators from considering a wide range of possible treatments.”

The Judge Rotenberg Center, an education center for children with severe emotional disabilities, is the only facility nationwide known to use skin-shock therapy. As part of the therapy, students are strapped with backpacks equipped with a GED, a remote control device that allows school authorities to regularly zap the students’ skin on their legs, arms or stomach to discourage bad behavior.

The United Nations Special Rapporteur on Torture has called the treatment torture.

Though the center is located in the Boston-area, the students are from New York and were transferred to the center after the New York State Education Department transferred the students there after finding that it could not provide appropriate services to them at an in-state school.

Though Massachusetts has since banned skin-shock therapy, the lawsuit was not dismissed because the New York ban is more sweeping. New York State bans all “aversive interventions,” defined as those “intended to induce pain or discomfort to a student for the purpose of eliminating or reducing maladaptive behaviors.”

The dissent contended that New York State failed to provide a reasonable basis for banning aversive interventions, arguing that some of the scientific literature used by the state to support its decision suggests that these techniques may be necessary in certain situations.

In noting that the state “made site visits, reviewed reports, and considered complaints from parents as well as school districts and others raising concerns about aversive techniques,” the majority countered that the state provided a reasonable basis for determining that the techniques were dangerous and that “positive behavioral interventions are substantially effective to provide (a free appropriate public education.”

The court specified that the IDEA requires it to be largely deferential to the states in educational policy making. Even if the parents had proven that the techniques were necessary in some cases to “guarantee totally successful results,” the court reasoned that the law only requires schools to provide students “with meaningful access to education.” Thus, the court ruled that this standard was met without the use of the  “aversive interventions.”