Expert Fees
Aversive Behavioral Interventions

Expert Fees:
On June 26, 2006 the Supreme Court of the United States issued a split decision, which denied prevailing parents the right to recover expert fees under the fee-shifting provision of the Individuals with Disabilities Education Act (IDEA). The IDEA already permits prevailing parents the right to be reimbursed their attorney’s fees. However, in order for a parent to become the prevailing party they will need to retain certain experts in order to prove and win their case against the School District. It is almost akin to your parents allowing you to borrow the family car for a date, only to find out that there is not any gas in the tank and that you have to spend all the money that you saved up for the date, on buying the gas. President Bush’s two latest appointments to the U.S. Supreme Court, Chief Justice Roberts and Associate Justice Alito voted with Associate Justices Scalia, Thomas, and Kennedy to deny parents this basic and essential right. The dissent argued that parents should be entitled to recover expert witness fees when they are the prevailing party because they understand that in order for an attorney to successfully argue that the school’s Individualized Education Program (IEP) is insufficient for the child; and that the parent’s desired program is best for their child, the use of an expert witness is essential. This is especially frustrating since case after case states that the only way for parents to prevail against their school district is to hire an expert witness to explain to the finder of fact what services are best for their specific student. The dissenting justices said it best when they stated:

“The practical significance of the Act’s participatory rights and procedural protections may be seriously diminished if parents are unable to obtain reimbursement for the costs of their experts. In IDEA cases, experts are necessary…[W]ithout cost reimbursement for prevailing experts, ‘the child’s right to a free appropriate public education, the parents’ right to participate fully in developing a proper individualized education plan (IEP), and all the procedural safeguards would be less complete’…[and] is a far cry from the level playing field that Congress envisioned. Nothing in the Constitution forbids us from giving significant weight to legislative history. By disregarding a clear statement in a legislative report adopted without opposition in both Houses of Congress, the majority has reached a result no Member of Congress expected or overtly desired. It has adopted an interpretation that undercuts, rather than furthers, the statute’s purpose, a “free” and “appropriate” public education for “all” children with disabilities (emphasis added).”

This decision must open every ones eyes as to why the United States Supreme Court can be so important to our every day lives. Had this decision been reached before President Bush’s latest two appointments reached the court, this decision probably would have been decidedly differently. It was the Second Circuit of the United States Court of Appeals, the circuit in which New York State is located, that determined that the IDEA provides that prevailing parents should have their expert’s fees reimbursed. Special Education law is not developed in a vacuum. We must understand this fact and adjust our strategies accordingly. We must develop a presence not only locally in our own school districts but also on a national level. This recent case proves the point that even a presidential election can have a dramatic effect on your child’s special education services.

Aversive Behavioral Interventions:
New York State has recently proposed amendments to the Board of Regents concerning behavioral interventions that will go into effect in the fall of 2006. The state seeks to establish specific standards and guidelines for the use of Aversive Behavioral Interventions (ABI). Aversive Behavioral Intervention is defined as the application of noxious, painful, intrusive stimuli or activities intended to induce pain such as electric skin shock, ice applications, hitting, slapping, pinching, kicking, hurling, strangling, shoving, deep muscle squeezes or other similar stimuli; any form of noxious, painful or intrusive spray, inhalant or tastes; withholding sleep, shelter, bedding, bathroom facilities or clothing; contingent food programs that include withholding meals or limiting essential nutrition or hydration or intentionally altering staple food or drink in order to make it distasteful; movement limitation used as a punishment, including but not limited to helmets and mechanical restraint devices; the placement of a child unsupervised or unobserved in a room from which the student cannot exit without assistance; or other similar stimuli or actions. The term does not include such interventions as voice control, limited to loud, firm commands; time-limited ignoring of a specific behavior; token fines as part of a token economy system; brief physical prompts to interrupt or prevent a specific behavior; interventions medically necessary for the treatment or protection of the student; or other similar interventions. The entire proposed amendments can be found at the web site:
http://www.regents.nysed.gov/2006Meetings/June2006/0606emscvesida1.htm

Before an ABI can be established a Functional Behavioral Assessment (FBA) must be conducted. The behavioral intervention plan must identify the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors. Such baseline shall, to the extent practicable, include data taken across activities, settings, people and times of the day. The baseline data shall be used as a standard to establish performance criteria and against which to evaluate intervention effectiveness. Therefore, any IEP providing for a child-specific exception allowing the use of aversive behavioral interventions shall identify the specific targeted behavior(s); aversive behavioral intervention(s) to be used to address the behavior(s); and aversive conditioning device(s) where the aversive behavioral intervention(s) includes the use of such device(s).

The proposed amendment also specifically states that there shall be NO use of any aversive behavioral interventions without the informed written consent of the student's parent. Aversive behavioral intervention procedures may be used only if such interventions are recommended by the CSE or CPSE consistent with the student’s IEP and behavioral intervention plan as determined by the CSE or CPSE. The proposed amendment also calls for establishment of a Human Rights Committee to monitor, review, and investigate the implementations of any aversive behavioral interventions. This committee is comprised of individuals not employed by the school or agency, which shall include at least one licensed psychologist with appropriate credentials in applied behavior analysis; one licensed physician, physician’s assistant or nurse practitioner; one registered dietician or nutritionist; one attorney, law student or paralegal; and one parent or parent advocate. In addition, when the purpose of the Human Rights Committee meeting includes a review of an individual New York State student’s program, a representative of the school district or agency placing the student in the program and a representative of the Department shall be invited to participate.

No parent wants their child to be subjected to the use of aversive behavioral interventions. However, as parents of children with special needs, we can understand how sometimes extreme measures must be taken to help our children develop. The proposed amendment identifies the need for the advice and counsel of an attorney, by requiring that one be a member of this Human Rights Committee. An attorney is an advocate and takes a position based on who hires them. The attorney assigned to the committee will advise them as to the law and how it applies to the ABI generally. If you are a parent of a child who will have an ABI, you need an attorney who will advocate specifically for your child. Before you as a parent allow someone else to lay hands on your child, shouldn’t you have the piece of mind to know if there wasn’t some other method to achieve the same result. This further illustrates the need to retain a counselor-at-law to assist you so to ensure that your special need child receives the IEP best suited for them.