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Bryant v. New York State Education Dep't

August 26, 2010

CHARLES BRYANT, INDIVIDUALLY AND AS NEXT FRIEND AND GUARDIAN OF D.B.; AVA GEORGE, INDIVIDUALLY AND AS NEXT FRIEND AND GUARDIAN OF B.G.; CHANIN HOUSTON-JOSEPHAT, INDIVIDUALLY AND AS NEXT FRIEND AND GUARDIAN OF A.J.; LISA HUGHES, INDIVIDUALLY AND AS NEXT FRIEND AND GUARDIAN OF J.R.; CARMEN PENA, INDIVIDUALLY AND AS NEXT FRIEND AND GUARDIAN OF G.T.; VIVIAN PRESLEY, INDIVIDUALLY AND AS NEXT FRIEND AND GUARDIAN OF D.P.; AND JAMIE TAM, INDIVIDUALLY AND AS NEXT FRIEND AND GUARDIAN OF S.T., PLAINTIFFS,
v.
NEW YORK STATE EDUCATION DEPARTMENT; DAVID M. STEINER, IN HIS CAPACITY AS COMMISSIONER OF EDUCATION OF THE NEW YORK STATE EDUCATION DEPARTMENT; AND THE NEW YORK STATE BOARD OF REGENTS, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiffs parents and guardians of disabled students attending the Judge Rotenburg Educational Center, Inc. (JRC) commenced this action against defendants the New York State Education Department (NYSED), Commissioner of Education David M. Steiner, and the New York State Board of Regents, alleging violations of the Individuals with Disabilities Act (IDEA),*fn1 the Rehabilitation Act of 1973,*fn2 and the United States and New York State Constitutions. (See Compl., Dkt. No. 1.) Pending are plaintiffs' motion for a preliminary injunction, (Dkt. No. 7), and defendants' motion to dismiss, (Dkt. No. 13). For the reasons that follow, the preliminary injunction is denied and defendants' motion to dismiss is granted.

II. Background

A. Factual History

Plaintiffs are the parents and legal guardians of seven disabled children who are students at JRC. (See Compl. ¶¶ 1-14, Dkt. No. 1.) JRC is a not-for-profit, special education facility located in Canton, Massachusetts. (See id. at ¶ 25.) Among other things, JRC provides residential, educational, and behavioral services to individuals who suffer severe behavior disorders. (See id. at ¶¶ 26-29.)

Pursuant to receiving a free appropriate public education (FAPE), an individualized education program (IEP) was developed for each of the seven student plaintiffs. (See id. at ¶¶ 2, 4, 6, 8, 10, 12, 14.) And as part of their IEPs, each student was identified as disabled and in need of residential, special education services. (See id.) In addition, four of the students' IEPs specifically recommended JRC for placement. (See id.)

At JRC, each student first enters a non-intrusive, positive treatment program, which employs a point/token system whereby positive behaviors are rewarded and problematic behaviors are met with negative incentives. (See id. at ¶ 30.) According to plaintiffs, this "positive-only" method has proven successful with approximately seventy percent of JRC's students. (See id. at ¶ 31.) However, in cases where positive-only treatment becomes insufficient or ineffective, JRC may supplement positive methods with aversive interventions. (See id.)

Aversive behavior modification techniques rely on consequences that are carefully designed to decrease a problematic behavior. (See id. at ¶¶ 32-34.) Aversive interventions are used on an individualized, specifically-defined basis to treat a student's problematic behaviors, including aggressive, dangerous, self-injurious, destructive, disruptive, and non-compliant behavior. (See id.) The goal is effective deceleration or minimization of problematic behaviors, which in turn enables a student to receive an appropriate education, promotes the student's safety, and helps the student develop and hone the basic skills necessary for learning and daily living. (See id.)

Before resorting to the use of aversive intervention, JRC must obtain (1) approval from personnel supervising the student's care, (2) consent from the student's parent or guardian, (3) an examination from an independent board-certified physician, (4) separate approval from two committees, (5) an IEP from the student's school district recommending the use of aversives, and (6) approval from a Massachusetts Probate Court judge. (See id. at ¶ 36.) JRC's use of aversive techniques is based on years of first-hand experience and peer-reviewed and accepted methods of behavioral psychology. (See id. at ¶ 32.) The types of aversives used by JRC range from helmets and manual and mechanical restraints, to carefully-controlled food programs and electric skin shock.*fn3 (See id. at ¶¶ 37, 43, 44.)

Currently, none of the student plaintiffs' IEPs recommend the use of aversive intervention. Still, each student plaintiff allegedly continues to exhibit severe problematic behaviors despite intensive educational instruction, positive-only treatment, extensive medication, behavioral counseling, low child-to-staff ratios, and ranging forms of therapy. (See id. at ¶¶ 46-66.) Accordingly, trained clinicians have recommended and plaintiffs have consented to aversive intervention as necessary to ensure that each student receives a FAPE. (See id. at ¶¶ 67, 88-89.)

NYSED, as an agency of New York State, regulates educational services and programs for New York residents. (See id. at ¶ 15.) The Board of Regents oversees education in New York, sets educational policies, standards, and rules, and promulgates, adopts, and enforces NYSED regulations. (See id. at ¶ 17.) Over the course of thirty years, New York State approved of JRC for out-of-state placement of students, pursuant to which NYSED monitored and regularly conducted quality assurance reviews of JRC's behavioral treatment policies, procedures, and programs, including aversive methods. (See id. at ¶ 69.)

However, on June 23, 2006, the Board of Regents promulgated new regulations that restricted the use of aversive interventions.*fn4 (See id. at ¶ 70.) And after a two-month comment period and subsequent revisions, a finalized version of the regulations were adopted in January 2007. See generally 8 N.Y. COMP. CODES R. & REGS. § 200.22; see also 8 N.Y. COMP. CODES R. & REGS. § 19.5(b)(2) (defining aversive interventions). The regulations limit the use of aversive interventions to students who had aversives on their IEPs on or before June 30, 2009, who obtain a child-specific exception from a committee appointed by the Commissioner, and who are engaging in self-injurious behaviors or behavior that threatens the well being of others. See 8 N.Y. COMP. CODES R. & REGS. § 200.22(e).

On January 8, 2010, plaintiffs commenced the present action, seeking declaratory and injunctive relief and challenging the regulations under the IDEA, the Rehabilitation Act, and the Equal Protection and Due Process Clauses of the United States and New York State Constitutions. (See Compl. ¶¶ 92-124, Dkt. No. 1.) Plaintiffs thereafter moved to preliminarily enjoin defendants NYSED, Steiner, and the Board of Regents from enforcing the regulations. (See Dkt. No. 7.) In opposition, defendants moved to dismiss plaintiffs' complaint. (See Dkt. No. 13.)

III. Discussion

A. Subject Matter Jurisdiction & ...


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