Autism/Applied Behavioral Analysis:

Review of Selected Decisions from 1998 -€“ 2003

The purpose of this memo is to report the results of a survey of court and due process hearing decisions regarding Applied Behavioral Analysis (ABA) treatment model between 1998 and the present.

Proponents of ABA view autism as a “syndrome of behavioral deficits and excesses that have a neurological basis, but are nonetheless amenable to change in response to specific, carefully programmed, constructive interactions with the environment.” “Using Applied Behavioral Analysis for Children with Autism: The Court as Referee Between Parents and School Districts,” Written by Cheryl Marcella (May 1998).  All of the hearing officer decisions dealing with ABA reviewed within Ms. Marcella’s paper are from 1996 and therefore outside the scope of this memo.  However, in general, ABA programming prevails in these decisions, usually because the school district offered a clearly inappropriate educational alternative (usually a lack of intensity and individualization).  The ABA treatment methods collected data and provided evidence of progress while the school programs often could not offer the same sort of objective evidence.  However, when the parents asked for ABA programming but the school districts countered with evidence of appropriate programming, the school districts usually prevailed.  This outcome is similar to more recent cases.

I.          Federal Court Decisions

A.   T.H. v. Board of Education of Palatine Community Consolidated School District 15, 1998 U.S. Dist. LEXIS 19110 (December 1998)

In December 1998, the United States District Court for the Northern District of Illinois, Eastern Division, the court granted plaintiff’s parents’ motion for an injunction enforcing a hearing officer’s decision that ordered the school district to pay for an autistic child’s home-based ABA program.  The parents had organized 20-40 hour per week of ABA therapies for their child, as well as an ABA workshop to be held in their home two days before the ABA therapy was to begin.  School personnel were invited to attend but declined.  At a subsequent staffing, the school district recommended its 2.5 hours per day of an early childhood program, refusing to fund the at-home ABA programming.  Parents refused to agree to the IEP and an administrative hearing ensued.  The Hearing Officer’s decision found that the early childhood program offered by the school was “substantively inadequate.” Citing Malkentzos v. Debuono, 923 F.Supp. 505 (S.D.N.Y. 1996), vacated on other grounds, 102 F.3d 50 (2d Cir. 1996), the Hearing Officer found that the district had not fulfilled its obligation to recognize the uniqueness of the student’s diagnosis.  The hearing officer found that the ABA program was appropriate and that the parents had no obligation to try out the school’s placement in light of its being so inadequate on its face.  The Level II hearing officer concurred[1], and the school district appealed to the federal court.

The federal court ruled that the school had to abide by the hearing officers’ decisions (Level I hearing officer decision as concurred with by the Level II hearing decision).  The school was requested by the court to develop an IEP consistent with the hearing officer decisions, and to reimburse the parents for all expenses associated with the ABA program.

B.   Dong v. Board of Education of the Rochester Community Schools, 197 F.3d 793 (6th Cir. 1999)

Parents of a child diagnosed with autism appealed from a U.S. District Court for the Eastern District of Michigan decision.  That opinion held that the school district offered an appropriate education, although the IEP did not include 40 hours per week of ABA therapy as requested by the parents.  The Sixth Circuit upheld the District Court opinion, citing Renner v. Board of Educ. of Pub. Schools of Ann Arbor, 185 F.3d 635, 645 (6th Cir. 1999) for the proposition that “Michigan’s maximum potential standard does not necessarily require the best education possible or require a model education, adopting the most sophisticated pedagogical methods without fiscal or geographic constraints.”

C.   J.B. and M.B. v. Board of Education for Horry County (South Carolina) (South Carolina Federal District Court, 36 IDELR 65 (December 2001)

Plaintiffs of an autistic student objected to the program being provided by the school district and unilaterally began a home-based ABA program.  A hearing officer found that the school district had provided the student with a free appropriate public education and, therefore, the parents were not entitled to any compensation for the money they spent on private, in-home education for their child.  The parents appealed o the State Review Board, whose Hearing Officer found that the school district had provided a free appropriate public education but there was an “unduly lengthy” time period between the child’ referral to the school board and his first IEP.  The Hearing Officer awarded the parents the costs expended for the child’s education or evaluation during that time.

Parents filed a civil action in Federal district court.  The Court found that although there was considerable delay in beginning instructional services for the student, the district compensated him educationally for the initial delay.  The Court also found that “Evidence also suggested the district would have reasonably and timely addressed any problems that might have arisen with its ABA therapy program.” The court found that in light of the school district having provided appropriate services, the private funding of the ABA program by the parents was not reimbursable.

D.   Popson v. West Clark community Schools and Clark County Special Education Cooperative, 230 F.Supp.2d 910 (2002)

Parents appealed a hearing officer decision to the U.S. District Court for the Southern District of Indiana.  The School District then filed a motion for summary judgment.  Parents had requested ABA therapy for their child, but the school district preferred a variety of techniques, none of which included ABA-type therapy. Parents argued that that school program was “designed primarily to keep costs to a minimum, and, as a result, gave the child nothing more than trivial educational benefits.” The Court found for the school district, saying that the “IEP need not be designed to enable the child to achieve his or her highest potential.” The Court cited Board of Educ. of Murphysboro v. Ill. State Bd. Of Educ., 41 F.3d 1162, 1167 (7th Cir. 1994):  “The purpose of the IDEA is to open the door of public education to handicapped children.” The Court concluded that while a better program might have been available, it was not the school’s duty to provide the best possible education for the child.

E.    Deal and Deal  v. Hamilton County Department of Education, 295 F.Supp.2d 687 (2003)

Parents of an autistic child enrolled their son in a private placement providing ABA-type therapy after the school district refuse to incorporate ABA therapy into the IEP.  An administrative hearing officer concluded that the IEP should have included the program requested by the parents.  The U.S. District Court for the Eastern District of Tennessee reversed the decision of the hearing officer, finding, among other things, 1) that the school district is not required to have on the IEP team someone knowledgeable and open-minded about the ABA therapeutic approach; and 2) that the hearing officer was wrong in concluding that the only educational methodology that would provide an appropriate education is the ABA therapeutic approach.   The Court found that: “The [hearing officer’s] decision ignores the admonition in Rowley [Board of Educ of Hendrick Hudson Central School Dist., Westchester County v. Rowley, 458 U.S. 176, 181-82 (1982)] that ‘the courts must be careful to avoid imposing their view of preferable educational methods upon the states.'”

II.          Hearing Officer Decisions

A.  San Diego Unified School District, 28 IDELR 244 (1998)

In an administrative hearing involving the San Diego Unified School District, the district offered 12-15 hours of autism services and the parents wanted the school district to fund private behavior intervention therapy.  The hearing officer ruled that the in-home intensive behavior intervention program must be funded by the school district, but that there should be a gradual reduction from 40 hours to 20 hours per week with a corresponding increase in school day classes.

In ordering the district funding of the ABA services, the Hearing Officer stressed that the school had not clarified what autism services it was offering to the parents and that the process through which the school indicated it would develop a program for the student was thought to be inadequate.  For example, at hearing the school testified that the person who was to design the services had not been involved in the development of the student’s IEP.

B.   Lexington County School District One (South Carolina), 29 IDELR 808 (June 1998)

At a Level I administrative hearing, the hearing officer upheld the disputed IEP for a three-year-old with autism, denying parents’ request for reimbursement of costs associated with a 20-hour per week, home-based ABA program.  The parents appealed and the level II hearing officer reversed, finding the proposed IEP invalid.  The placement was decided before the goals were established.  The IEP lacked opportunities for mainstreaming (violating the LRE requirement) and, according to the hearing officer, the IEP was not based on the student’s individual needs.  Because the IEP was so inadequate, the level II hearing officer awarded to the parents reimbursement for the costs of an in-home ABA program until the school district developed a valid IEP.  In commenting on the prospective content of a valid IEP, the Hearing Officer stated, “This decision in no way should be interpreted to mean that the state level hearing officer agrees that twenty hours of ABA discrete trials is a minimum.  It means that once goals are established, then the decision can be made on how to reach them.”

C.  Norwood Public Schools (Massachusetts) (July 1998)

A three-year old diagnosed with autism was placed by the school district in a diagnostic placement that was to extend about 30 hours per week.  The parents rejected the proposed placement and instead arranged for the student to participate in a 34 hour per week, in home ABA program.   The school refused to pay for the ABA program and the parents requested a due process hearing.  The hearing officer concluded that the program offered by the school district was inappropriate, and the parents were entitled to reimbursement for the costs of the in-home ABA program from the date the school district should have known its placement was inappropriate.

D.   Richmond Community Schools (Indiana) (November 1998)

Parents suggested to the school district that it fund a 30 hour per week in-home ABA program, and requested a due process hearing when the district refused to fund the program.  The hearing officer found for the school district because the school district had a specially trained autism team and therefore, the district had offered the parents a free and appropriate education (FAPE).  The hearing officer found that “As long as a district offers a student a FAPE, it can chose what methodologies will be used.”

E.   Board of Education of the Monroe-Woodbury Central School District (New York) (July 2001)

Parents recommended to the district that it fund a full-day ABA program and the district countered with an offer to provide 10 hours per week of ABA programming.  The hearing officer found for the school district, finding that the IEP contained goals and objectives that appropriately addressed the student’s needs, including a resource room teacher who had approximately four and a half years of experience in discrete trial (ABA) training.

III.          Conclusion

Based on a review of Federal court and state administrative decisions, the guiding principle is that hearing officers and judges will support ABA treatment alternatives if the school district does not provide an appropriate IEP.  Should the school district, however, demonstrate that it can provide a free appropriate public education, it is likely that the hearing officer or judge  will support the school district.  See Burlington School Committee v Department of Education of Massachusetts, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385(1985), which establishes the Supreme Court’s standard for Parents to receive reimbursement/prospective funding for their choice of educational programming.

[1] This case started just before Illinois changed from a two-tiered system to a one-tiered administrative system.