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February 2023

Tony Corleto Wins Summary Judgment for Board Certified Behavior Analyst

In a case of first impression, a Connecticut Superior Court judge held that a licensed Board Certified Behavior Analyst ("BCBA") is a health care professional, and based the plaintiff’s failure to secure an expert opinion, granted summary judgment to the BCBA and to the organization that employed him. 

BCBAs are specially trained to manage individuals with autism spectrum disorder. In school settings, they function as part of an Individualized Education Program ("IEP") team to help structure the learning environment and to establish protocols for managing the difficult behavior of individuals who can’t communicate verbally, sometimes placing themselves and others at risk.  Because physical interaction is common, professionals engage with autistic students in ways that look very different from how they interact with other students.   

The incident in question involved the BCBA’s intervention to redirect the student’s behavior, including crying, screaming, biting, and pinching. The redirection was not abnormal and in no way injured the student. However, an anonymous report was made to the Department of Children and Family Services ("DCF") by a newly hired part time worker. DCF charges of emotional neglect, physical neglect and physical abuse were ultimately reversed and resolved in favor of the BCBA at an administrative hearing. However, the student’s mother brought suit based on DCF’s initial investigative interview.

After deposing the plaintiff and determining that she had been unable to retain an expert or to identify any witness, we moved for summary judgment on behalf of the BCBA and his employer, arguing that the plaintiff would be unable to sustain her burden of proof at trial. In opposition, the plaintiff argued there was no physician-patient relationship to establish a medical malpractice suit, that the claim was for an intentional tort, and that the mother’s opposing affidavit was sufficient to prove that her son suffered fear, anxiety, and emotional distress as a result of the incident.

Analyzing the statutes applicable to the practice and licensure of BCBAs, the court found in this particular setting that the BCBA was acting in his role as a licensed health care professional and that an expert is needed to establish the standard of care. Consistent with Connecticut decisions in professional liability matters, the court granted summary judgment to the BCBA and his employer because the plaintiff would be unable to produce at trial an expert to testify about the applicable standard of care. 



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