The ABCs of ABA Funding, Part Three of Four: Accessing ABA through Public Schools

By Attorney Franklin J. Hickman

This is the third in a series of articles on access funding for Applied Behavior Analysis – ABA. The Federal law governing school-aged children with disabilities is a valuable tool in obtaining such services.

The Basics
The Individuals with Disabilities Education Act (IDEA) is the Federal law requiring states that receive certain types of Federal funding to provide a Free, Appropriate Public Education (FAPE) to children aged 3 through 21 until graduation or GED. The Federal law can be found at 20 USC §§1401 et seq. and 34 CFR Part 300.

The educational program must meet the unique needs of the child and be offered at no cost to parents. A program is appropriate if it enables the child to be involved in and make progress in the general education curriculum. In Deal v. Hamilton County Board of Education, 392 F. 3d 840 (2004), the 6th Circuit Court of Appeals defined the scope of IDEA’s requirements as follows:

  • IDEA requires an IEP to “confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue.”
  • “[T]he intent of Congress: …to require a program providing a meaningful educational benefit toward the goal of self-sufficiency.”
  • “Some” benefit is not enough.

Services must include academic and related services which are necessary to allow the child to benefit educationally from instruction. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). Examples of related services include transportation, speech/language, PT, OT, counseling, and services in specialized settings, including residential settings.

To be eligible for services under IDEA, a child must fit within specified categories, including autism, and demonstrate that the disability has an adverse effect on educational performance.

If a child is suspected of having a disability, school districts must conduct comprehensive evaluations to determine whether students are eligible for services under IDEA and, once eligible, to determine necessary services. In Ohio, this comprehensive evaluation is referred to as the “ETR.” The evaluation must be multi-factored and multi-disciplinary and assess all areas of disability, including academic, functional, and developmental needs. If the parents are dissatisfied with the evaluation, they may request an independent expert evaluation by a qualified examiner who is not employed by the district responsible for the child’s education. Under certain circumstances, the parents may require the school to pay for the independent evaluation.

Once a child has been determined to be eligible, the School District must develop an Individualized Education Plan (IEP). The IEP must address academic, functional and developmental issues identified in the Comprehensive Evaluation and other identified needs. The IEP must include a number of elements, including related services which are necessary to allow the child to make reasonable progress in the curriculum and to benefit educationally from instruction. The IDEA requires that “related services and supplementary aids and services, [be] based on peer-reviewed research to the extent practicable.”

If parents are dissatisfied with the IEP, they can make a unilateral placement and seek recovery of costs from the district. In order to do so, the parents must show (1) that the IEP is inadequate to meet the needs of their child and (2) the new placement is adequate. The parents must give the district prior notice either at an IEP meeting preceding the unilateral placement or by written notice, given to the District at least ten business days before the placement begins. This process requires strict conformity with the rules, so parents should consult with an attorney before initiating a unilateral placement.

Accessing ABA Services under IDEA
Parents may require a school district to fund ABA services if the parents can show that such services are necessary to allow the child to make reasonable progress in the curriculum and to benefit educationally from instruction.   There must be sufficient evidence from a qualified professional which supports this conclusion. The qualified professional may be a child’s therapist, an independent evaluator with appropriate qualifications, or district staff.

A district can use any educational methodology that will allow a child with a disability to receive an educational benefit. Only when a child requires a particular methodology to receive FAPE will a district have an obligation to use that method.

A number of courts have found that a school district is responsible for services in the home, as well as in the school. See e.g. New Milford Bd. of Educ. v. C.R., 2010 U.S. Dist. LEXIS 61895, affirmed by New Milford Bd. of Educ. v. C. R., 2011 U.S. App. LEXIS 12244 (3d Cir. N.J., June 14, 2011). The Court found that the in-home ABA program supplied by the parents, along with the school-based ABA program, were both necessary to provide the child with a meaningful education.

If Parents and the District Disagree
The IDEA offers mediation and due process to resolve issues between parents and the school district when informal efforts have failed.

Mediation is generally an effective tool to resolve most disputes. Due process is similar to a trial and involves considerable time and expense. Due process can result in orders affecting placement, program, services, supports, or compensatory education. In general, parents have a greater chance of success if they have a lawyer representing them at a due process proceeding.

Posted in Articles, Articles: Children with Special Needs.