“How Can I get ABA On My Child’s IEP?”

By Linda Goldman

When your child has benefited from Applied Behavioral Analysis (ABA), you might wonder whether the continued use of this methodology can be specifically listed as a mandate on the student’s Individualized Education Program (IEP).

Even though your child has made progress as a result of an ABA program, this does not bind the Committee on Special Education (CSE) to include ABA in the student’s IEP. This is because teaching methodology is usually a matter that is left to the teacher's discretion, and the CSE is, therefore, not necessarily required to specify it on an IEP.

There are, however, certain circumstances in which a CSE can be convinced (or, if necessary, compelled by an administrative tribunal or court), to include ABA as a mandate on the IEP. The way this is done is to present evidence that ABA is essential for the student to continue to make educational progress and that without ABA the student will regress.

Here is the kind of evidence that is helpful:

  • Recommendations from teachers, therapists and related service providers that indicate that ABA is needed for the student to continue to make progress;
  • Evaluative reports and materials that yield a clear consensus that ABA services are necessary for the student’s educational progress;
  • Documentation that other educational methodologies have been tried but were unsuccessful; and
  • Documentation of regression during a period of time in which the child did not have access to ABA services or supports.

If the school district’s IEP review team cannot, or does not, point to any evidence sufficient to counter the opinions and recommendations presented by the parents, the CSE will not be in a legally tenable position to deny a request by parents that ABA services, at least on some level, be identified and included in the IEP.

Despite what an IEP team might insinuate during your meeting about its broad powers and educational expertise, decisions regarding educational methodology or “delivery of instruction” are supposed to be made after considering your input. Some pivotal questions the school district might consider is what has worked for the child in the past; whether the child will be responsive to different educational methodologies; and whether the child will likely regress absent the use of ABA.

When preparing for an IEP meeting where educational methodology is a concern, be sure to have all relevant documents on hand. This includes all educational and psychological evaluations as well as progress reports and other data from teachers, specialists, and related service providers.

Parents should try to arrange for the participation of educational professionals who have worked with the student and who can attest to the fact that ABA instruction and support is essential for the student to make educational progress.

If the CSE ultimately refuses to mandate ABA services, parents should request that the CSE explicitly note in the IEP that the parents and professionals most familiar with the student believe, and have documented, that ABA methodology is necessary for the student to access instruction and/or function in the school setting. If applicable, you can also ask the CSE to note in the IEP that other methodologies have been tried, but have not been successful. If someone is taking written minutes for the IEP meeting, ask that your objections, reasons, and documents be noted there.

In these situations, parents may ultimately have to proceed to an Impartial Hearing to obtain a mandate for ABA services. A central issue at that hearing will be whether the parents presented uncontradicted and compelling information to the CSE that the child requires ABA in order to make meaningful educational gains appropriate to the child’s circumstances. The more documentation and evidence you have regarding this issue, the stronger your case will be.  

Heads of Schools Speak Out Against Gun Violence

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Today, we were thrilled to open The New York Times and see a full-page, open letter on page A7 signed by the heads of hundreds of independent schools throughout New York State, including many of the wonderful special education schools our clients’ children attend. Titled “Heads of Schools Speak Out Against Gun Violence,” this joint letter calls upon our President and Congress to do their jobs and enact common sense gun law reform. In support of this, the signatories grimly cite the fact that the United States leads the world in the number of guns per capita, as well as the number of homicides, suicides, and accidental deaths involving guns—and the highest number of deaths of children involving guns.

The survivors from Marjory Stoneman Douglas High School in Parkland, Florida returned to class today, but they have made plain their refusal to return to business as usual. Their unjaded, unrestrained activism and their honest outrage have given us all reason to hope. And, as President Barack Obama tweeted last week, we must all have their backs.

This is not a partisan issue. We must put aside tribalism and find common ground to protect our children and teachers. Our office applauds all the schools who signed today’s open letter. It is critical that we all stand with teachers and students whose lives are threatened by the continued inaction of Congress on this urgent issue.

Many of us plan to be part of the March for Our Lives on March 24th, the date that the Parkland students have called for protests in Washington, DC and other cities. There isn’t much information available yet about the specifics for NYC, but there is a Facebook event page that promises to keep interested folks updated.

It’s Becoming Harder (But Not Impossible) To Get Turning-Five Deferrals

There is no certainty when dealing with a gargantuan bureaucracy like the NYC Department of Education. Having practiced in this area for over 25 years, our firm has lived through many changes and cycles. 

A recent shift that parents need to be aware of is that “Turning Five” IEP teams are not as forthcoming as they have been in the past when it comes to issuing deferrals to attend a state-approved non-public school. 

State-approved non-public schools (such as Churchill, Parkside, Learning Spring, Hawthorne, Blue Feather, SLCD, Hallen, etc.) are private schools that appear on the NYS Commissioner of Education’s approved list to enroll classified children with IEPs. When an IEP team determines there are no appropriate public school programs for a child, they can defer the case to the Central Based Support Team (CBST) for approved private school placement. The DOE directly pays the school’s tuition and provides round-trip transportation. 

Thankfully, not much has changed for parents who need a continuation of a deferral for future years. This continues to happen with very little push back. And we continue to experience great success with families who ask for a deferral for the first time after their child has not succeeded in a public school program.

But for our turning-five families, things feel differently. In the past, IEP teams have been more willing to defer turning-five students at the first IEP meeting when those students’ parents have had acceptance letters to one of the approved non-public schools. Now, we are finding that securing a deferral often takes more than one IEP meeting.

It has long been our firm’s practice to send a lawyer with our clients to turning-five meetings when the child has been accepted to an approved non-public school in order to assist the parents in arguing for the deferral. We continue to do this. In this current climate, we have been and will continue to send our attorneys to additional IEP meetings that we may advise you to request after visiting the DOE’s placement offer. We may also recommend that you take an expert that knows your child on those visits or to one of these IEP meetings.

Our message is this: It has become much more difficult (but not impossible) to get a deferral at your first turning-five IEP meeting—expect to do a lot more work. Much depends on your child’s individual circumstances and the temperament of your IEP team. However, if you are ultimately unable to get a deferral, most of the approved non-public schools are willing to enroll your child if you pay the tuition and sue.

It’s truly shameful that the DOE is making deferrals to approved non-public schools harder to get for Turning Five families, particularly those with more modest incomes who have long relied on approved schools as a way to secure an appropriate education. This sea change is in stark contrast to the de Blasio Administration’s original campaign message about ending the so-called “Tale of Two Cities.” We encourage you to write your city representatives about this issue if it affects you and tell them your story. 

Understanding the Importance of Classification on an IEP

by Abbie Smith

Many parents ask us if the classification their child receives on their IEP really matters. As with all things in special education, the answer is: It depends!

Preschool students in New York City are all given the same classification by the CPSE (Committee for Preschool Special Education) on their IEPs: “Preschooler with a Disability.” But once a child turns 5 and enters the CSE (Committee on Special Education), they must be given a more specific classification. This is because the Individuals with Disabilities Education Act (IDEA), which is the federal law that provides a disabled student’s right to an IEP, requires that the qualifying student’s school performance must be “adversely affected” by one of 13 conditions:

  • Autism
  • Deafness
  • Deaf-blindness
  • Emotional disturbance
  • Hearing impairment
  • Intellectual disability
  • Learning disability
  • Multiple disabilities
  • Orthopedic impairment
  • Other health-impairment
  • Speech or language impairment
  • Traumatic brain injury
  • Visual impairment (which includes blindness)

It isn’t uncommon for parents to look at this list for the first time and wonder if a classification will be stigmatizing or limiting. While no one can promise you that someone won’t prejudge your child because of their classification, the vast majority of educators understand that these labels serve a procedural purpose only. At the end of the day, choosing a classification is simply a necessary step in getting your child what they need to learn and thrive at school.

Here are some other important things to understand about classification:

Classification is not the same as diagnosis. Julie may have a diagnosed hearing impairment, but it is entirely possible that the IEP team classifies her with “Other Health Impairment” if she also has ADHD and her significant attentional issues are impacting her ability to learn.

Classifications are selected based on what most impacts a child’s learning. The decision about which classification to pick is made at the student's IEP meeting. The IEP team (including the parent) will discuss the options and choose the classification that best fits the child’s situation. Even when a child could fit into two (or more) boxes, a team cannot “dual classify” – but the IEP program must still address all the identified needs of the child.

Classifications may change. Perhaps Julie was classified with “Other Health Impairment” as a kindergartner; but then, as the reading and writing demands of school increased, her classification was changed to “Learning Disability.” The needs and challenges of children change as they grow, and so should IEP classifications.

Approved Non-Private Schools are only licensed for specific classifications of IEP students. If your IEP team decides to defer you child’s case to the Central Based Support Team (CBST) for placement in a state-approved non-public school (http://www.p12.nysed.gov/specialed/privateschools/NYC.htm), the school your child is placed in must be licensed to accept students with the disability classification on the child’s IEP. If you are considering one of these schools, make sure you know what classifications the school can accept.

Some classifications come with services. For example, an Autism classification must come with parent training services, and a Speech and Language classification is understood to imply a need for speech therapy.

When a child is unilaterally placed in an independent private school, the school is not obligated to “meet” the IEP as it is written, so the classification becomes far less relevant. However, because you must attend each annual IEP meeting with an open mind, including public options and approved non-private school options, it is important that you do not ignore the classification conversation even if you anticipate that your child will continue to attend an independent private school.

NYU’s First ASD Nest Conference Showcases its Success and Future Promise

by Eliyanna Kaiser

Last week, the ASD Nest Support Project of NYU Steinhardt held its first Conference for Autism and Inclusive Education (#NestCon). I attended along with hundreds of clinicians, academics, school administrators, and parents from all over the country (and some international participants), to learn more about New York City’s renowned ASD Nest program. The conference clearly demonstrated how NYU continues to support the Nest program by staying abreast of the latest research and thinking.

The keynote address was given by Dr. Catherine Lord from the Center for Autism and the Developing Brain. Dr. Lord described how her research shows that there are moments of greater opportunity for the developing brain in certain domains, such as adaptive skills from age 4 to 9, or social skills from age 9-14. She also talked about the importance of focusing on emerging skills as opposed to deficits, and the benefits of having access to typical peers for stronger social outcomes. Finally, she presented some data on how having a part-time job in high school or college leads to better employment outcomes for students transitioning into adulthood. Dr. Lord closed by giving an impassioned appeal that we listen to self-advocates and recognize their lived expertise in leading the discussion around how to best support autistic children and adults.

Other presenters included Dr. Stephen Shore, the renowned autistic speaker and author, and a professor and researcher focusing on autism education at Adelphi University. Dr. Shore spoke about the power of identifying a child's strengths and strong interests to help set the stage for lifelong success, as well as the importance of encouraging autistic children to understand their diagnosis and become their own self-advocates. 

Also of note was Dr. Brenda Myles, president of AAPC Publishing and the author of The Hidden Curriculum: Practical Solutions for Understanding Unstated Rules in Social Situations, gave practical advice about how to specifically teach kids to understand the unspoken rules of slang, metaphors, and body language, as well as the “hidden curriculums” of the many cultures and other identities we belong to. She gave me much to puzzle over on the subject of how to teach the hidden curriculum of men's room urinal etiquette.

We also heard from Peter Vermeulen of the Flemish Autism Society, who described his cutting edge research in what he has termed “context blindness,” by which he means that we can understand why autistic people have difficulties with communication, social interaction, and unpredictable changes because of their challenges with understanding and identifying contextual clues. Dr. Vermeulen’s recent article in the Irish magazine Frontline goes into some more detail about this fascinating alternative model for understanding how the autistic brain processes information, and he has also authored a book called Context Blindness.

It’s no secret that the ASD Nest program is the most efficacious special education program that New York City has to offer, and this conference helped to highlight why that is. The collaboration between scholarship, policy, and programming is a powerful combination.

For the 2017-18 school year, the ASD Nest program boasts 270 classrooms, including 24 elementary schools, 11 middle schools, and 8 high schools—all told more than 1,200 students with autism are served by this program. At #NestCon they announced that they will be expanding their middle and high school offerings for the 2018-19 school year, which is great news for kids in the elementary school classrooms who hope to move on within this program, as well as for families of other kids with autism who are currently in more restrictive settings but who may be ready to consider a less restrictive, inclusion setting, like Nest, in the future.

You can learn more about the ASD Nest program on the Department of Education’s ASD Programs Family Resource Guide page, and on the NYU Steinhardt website.