“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.  

Follow Up Re: Mayor's Policy

Many of you have been emailing and calling asking for an update on the Mayor’s June 24th Policy Memorandum on Special Education Settlements.  Well, here’s the news hot off the press: on August 14th the DOE’s Office of General Counsel held a meeting with lawyers and advocates practicing in this area.  The important “take aways” from this meeting are as follows:


1.       The DOE will absolutely continue to litigate cases where they believe a student has been offered a free appropriate public education (“FAPE”). This is the same as it has always been.


2.      The biggest change will be that when we file our Notices of Unilateral Placement (this year they are being filed on August 20th) the DOE will consider settlement only under the following conditions:


a.       The parent prevailed in a prior year at an impartial hearing, and the DOE did not appeal this decision and it concerned the same placement;

b.      There was a settlement the prior year for the same placement and circumstances;

c.       When a student is entering a “terminal grade in a school” that the DOE has previously funded (good for all you 8th graders at Gaynor, and seniors at MMFS, WP, RLS, EH, Windward, etc.)


3.      The changes in the payment process when the DOE does recommend settlement should be the most dramatic change.  When the DOE agrees to settle a case they will finalize the settlement/negotiation process within 90 days of making a determination to settle a case and begin to pay out on these cases 30 days after this.  This will help most parents who find themselves in a difficult cash flow position.


4.      For students first entering the DOE/CSE system, and for those turning five students leaving CPSE and entering CSE, nothing has changed.  The new policy will not effect your case this year.  Accordingly, we will file Notices for you on August 20th and between September and November we will file hearing requests.  For this group of students settlement offers will only be made after the filing of an impartial hearing request.


5.  Any notice that was filed earlier than August 20th, meaning for our 12 month students, this policy will not apply.  Hearing requests must be filed and our offices will do these between September 4th through 11th. The good news is that once the hearing request is filed 12 month students will be considered under the expedited settlement process.


               Your team at Skyer Law has been meeting continuously about this new policy.  Our decision is to write extremely detailed notices, giving the DOE enough information to push them towards a settlement.  This year’s notices are akin to any hearing request filed in years past.  We are filing these notices on August 20th and we’ll update you again as soon as there’s more information.


               Enjoy these last hazy, crazy days of summer –   Regina and Company

Busing Blog: Part 3 of 4


 If you had a CSE/IEP meeting but your child’s recommendation was for ICT or General Ed with SETTS, or you did not have a meeting, or they found your child to be non-handicapped, although you now have the nine digit NYC ID number, you are not automatically entitled to a bus route. In this situation, the process of securing a bus route is more difficult. In our office, we will request busing for all of our clients who need it, in our August Notices to the DOE. Sometimes as a result of this request, the child will be placed in the OPT system and routed on a bus. However, this is not an entitlement. Any family that is in the process of having their child attend a private special education school must use an attorney or seasoned advocate to help them. The transportation is part of this process and we advise all parents to start planning for this well in advance of the school year.

Another and often time overlooked way of getting a bus route for a child who does not qualify by virtue of the program recommendation is if a parent can establish a medical reason why their child needs door to door transportation.

If you cannot secure busing through the DOE, be sure to keep records of the cost of transporting your child to and from school and speak with your attorney about including this in your impartial hearing request for tuition reimbursement. 

Busing Blog: Part 2 of 4


Once your child has a New York City ID number, the question becomes how to get this number into OPT’s system so that s/he can be on a bus to and from their private special education school. There is not  one easy answer because each case is unique to each student. Here are some helpful guidelines.

For children who are entering the DOE system for the first time and have an IEP that recommends a full-time special education program (12:1:1, District 75, defer to CBST), that child is automatically entitled to busing. In this situation his or her nine digit NYC ID number should be sent to OPT by the District Representative who ran your child’s CSE/IEP meeting. My suggestion is that at the end of the CSE/IEP meeting, ask for the email and telephone number of the district representative. Do not tell them that this is to arrange for busing to a private school. Remember at this meeting you are open to considering all placement recommendations – which means both private and public. Simply get this person’s contact information for any further questions you may have.

What happens next can be either that the private school enters your child’s NYC ID number into the OPT system for a bus route, if they are permitted to do so, or the district will do this once they get Notice that your child will be attending a private school. Notice will be the subject of another blog, but for now, suffice it to say that Notices are filed in late August and that’s when bus routes start to get sorted out. At the end of August, you can check the OPT website to see if your child has been assigned a bus route: schools.nyc.gov/offices/transportation/default.htm. If not, I recommend that you contact the district representative to assure that this has been done. This might even mean going down to the CSE with the IEP that has a full time special education recommendation. Be prepared to camp out at the district for hours to accomplish this! Also, make sure to have a back-up plan in case transportation is delayed which can happen for a variety of reasons.

If a child is recommended for a full time special education program and your district or private school is not able to get the child on the bus, speak with your attorney or advocate. In some situations this can give rise to a claim for reimbursement for the cost of your transporting your child to and from school.