HOME ABA BEHAVIOR THERAPY AND CLINIC MEETINGS

 

Parents and advocates of children with Autism and Specific Learning Disability have been encouraged by recent additions to the scientific literature that clearly support the use of intensive behavioral approaches – typically referred to as Applied Behavioral Analysis, or “ABA” – in the education of such children.  

 

Some jurisdictions have supported intensive ABA therapy over other methodologies where there is evidence that the school district opposes ABA as a matter of policy without reference to a student’s specific needs. Where a school district refuses to consider ABA therapy or broadly limits its availability in an arbitrary or pre-determined manner, courts may be significantly less likely to favor the district, and may interpret such a policy as violating the IDEA and disability discrimination statutes, finding that depriving children of a number of hours of ABA service due solely to a shortage of service providers may be enough to show intentional discrimination. One court found that, while there is no “right” to ABA therapy, if the school district, as a matter of policy, arbitrarily limited the number of ABA hours provided to any particular child, the district would not be providing a child with an individualized education program and would disregard each child’s individual needs.

 

In addition, courts may favor parents’ claims for intensive ABA therapy where the school district’s offering falls below the minimum standards of FAPE under the IDEA. In a case, the court ordered the district to fully reimburse the parents for their unilateral placement of their child with autism in a private ABA-intensive program because the district had “utterly failed” to provide the child with even a “basic floor” of education in the public school. This was not a case of competing methodologies, but rather a case where the parents presented a methodology that clearly benefited their child while the district provided virtually nothing.

 

In another case, a Massachusetts due process decision, the hearing officer noted: “Two of Parents’ three expert witnesses …agreed as to the critical importance of providing effective services to a child with Student’s profile during his early years (age 2 through 7 years) during which there is a ‘window of opportunity’ that will quickly close after the student reaches age 7”. He went on to note that “Federal courts and Massachusetts Hearing Officers have similarly recognized the importance of considering this ‘window of opportunity’ for young children with autism, such as Student, when determining what special education and related services should be provided in order to ensure a child’s meaningful access to education and to avoid jeopardizing a child’s opportunity to make effective progress”. While he acknowledged that the student in question had made some educational progress in the district’s in-house program, the Hearing Officer found that progress to be insufficient and ordered the district to support a far more intensive behavioral program outside of the district in order to take advantage of the child’s “window of opportunity”. In virtually every case where courts have ruled in favor of intensive ABA programs, judges and hearing officers credit comprehensive and persuasive expert testimony as a critical factor in their conclusion.

 

In another case, multiple experts in ABA methodology who were also intimately involved in the education and evaluation of the child at issue testified as to the effectiveness of ABA therapy, and linked this effectiveness to the rapid progress of the child after the parents had unilaterally placed him in a private institution that specialized in ABA. At the same time, these same experts testified as to the child’s lack of real progress while participating in the school district’s TEACCH program.  The experts were able to show, based on the data from each program, that the child needed one-on-one therapy (rather than predominantly group therapy) in order to receive a FAPE. Both the hearing officer and the district court judge were persuaded by these experts and agreed that the school district’s program did not confer a meaningful educational benefit on the child, while the intensive ABA program did; the court thus ordered the school district to reimburse the parents for their unilateral placement. Another court was crediting persuasive expert testimony in finding that one-on-one ABA therapy was required in order for the child to make adequate educational progress, while the school’s program was inadequate.