ABA Case Law and Due Process Determinations
The District will provide a Board Certified Behavior Analyst or a Licensed Behavior Analyst ("BCBA/LBA") to serve as a member of Student's IEP Team and support Student's special education as follows: (i) assist in interpreting evaluations and special education service needs, (ii) assist in providing ABA, as described and defined in Paragraph B.3., above, (iii) observe and collect behavioral data, (iv) provide consultation and training to District staff regarding the provision of Student's school~based ABA services, (v) collaborate with Student's private BCBA/LBA on a weekly basis at a mutually agreeable time, and (vi) supervise the services provided to Student by the District-provided RBAI/RBT pursuant to the requirements of OAR Chapter 824. The District will provide a BCBA/LBA to serve in the capacity described in this paragraph for as long as Student's IBP Team determines that doing so is necessary for Student to receive a FAPE, or for the entirety of the 2018-2019 school year, whichever is longer.
DOE violated the IDEA by failing to specify Applied Behavioral Analysis as a methodology in the IEP
Should a parent/guardian request that an outside agency be permitted to provide ABA services during the school day, the IEP team needs to convene to determine whether the student needs ABA services to receive FAPE based upon collected data from the student’s IEP team. The team should consider how to provide those services within the district. If the team decides that the services are necessary but the LEA or SOP is unable to provide the services, it can then determine if an outside agency will be contracted.
Student Doe’s parents will not be in violation of Rhode Island’s compulsory attendance law for their child’s absence from school for 24 of the 30-hour school week so that she can receive medically-necessary Applied Behavioral Analysis (ABA) therapy according to a schedule that gives her the energy and stamina necessary to benefit from such therapy. In developing an IEP based upon Doe’s significantly shortened school week, her IEP team will provide her with a free appropriate public education when it develops a program of general education, special education and related services that is reasonably calculated to enable her to make progress toward her goals in light of her circumstances at this time. The IEP team must convene quarterly to determine if Doe’s school week may be increased to provide for additional educational services, without compromising her receipt of medically-necessary ABA therapy.
Legally Defensible Programming for Students With Autism - Charles L. Weatherly, The Weatherly Law Firm, LLP Monica J. Conrad, Church, Church, Hittle & Antrim
The predetermination of the August 23, 2011 IEP team that Petitioner would not be allowed to leave school one hour early to attend therapy at the  Center was a procedural violation of the IDEA. The parents of Petitioner are entitled to reimbursement of the cost of their son’s attendance at the  Center for the period of August 23, 2011 to January 31, 2012. The parents are also entitled to reimbursement of the mileage to transport Petitioner to and from the  Center in the amount typically reimbursed by the Madison City Board of Education to its employees. 34 CFR §300.34(a)(related services includes transportation).
As the majority details, the services provided by the School District were insufficient to provide the educational services needed to comply with the Individualized Education Plans ("IEPs") developed for T.H., an autistic student. See 20 U.S.C. § 1401(9) (indicating that, to satisfy their obligation to provide a free appropriate public education, schools must provide special education and related services "in conformity with the individualized education program" designed for the student). Specifically, the School District's failure to ensure the effective provision of Applied Behavior Analysis ("ABA") therapy constituted a failure to implement a material element of each IEP designed to guide T.H.'s education. See Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n. 3 (8th Cir.2003) (concluding that the IDEA is violated "if there is evidence that the school actually failed to implement an essential element of the IEP that was necessary for the child to receive an educational benefit"); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir.2000) ("[T]o prevail on a claim under the IDEA, a party challenging the implementation of an IEP must show more than a de minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP."). Thus, I agree with the majority's conclusion that the School District failed to provide T.H. with a free appropriate public education.
Plaintiffs provided sufficient evidence that ABA therapy, when recommended by a licensed practitioner of the healing arts, is a medically necessary service which provides the maximum reduction of a mental or physical disability. Because the proposed administrative rules will effectively cut off funding for medically necessary services, Plaintiffs have established a likelihood of success on the merits. Plaintiffs have also established that if the new rules are made effective, they will suffer irreparable injury. If the Plaintiff children are no longer able to receive the medically recommended 35-40 hours of ABA therapy per week, there is sufficient evidence that the children will experience regression. For children like J.L., whose rumination went from less than five times per day to 34 times per day when his behavior plan was stopped for a mere two days, the injury is significant.
The District’s staff implementing Student’s Applied Behavior Analysis (ABA) program had insufficient training and experience to address Student’s deficits as a child with autism; The IEP failed to provide an educational program with a sufficient amount of ABA therapy, and therefore the program was not scientifically based and was not, to the extent practicable, based upon peer-reviewed research.
The Deals are entitled to reimbursement. The School System deprived Zachary of a FAPE by predetermining his placement and by failing to ensure the attendance of regular education teachers at certain IEP meetings. Furthermore, the district court has the opportunity, on remand, to find an additional, substantive, IDEA violation by the School System. The private educational services provided by the Deals clearly were proper under the IDEA. See Florence County, 510 U.S. at 11-16; Knable, 238 F.3d at 770-71. The district court's task on remand thus is to determine the level of reimbursement that is "appropriate" in light of the IDEA's purpose. Burlington, 471 U.S. at 369, 105 S.Ct. 1996; see Florence County, 510 U.S. at 16, 114 S.Ct. 361 (stating that the district court "must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required").