What Is An ABA Placement? Seattle University School of Law Administrative Law Judge Training October 19, 2011 Kathryn Dobel, JD Berkeley, California

DEFINITION Applied Behavioral Analysis (“ABA) placements are defined in case law supported by research for evidence based practice regarding programs, placements and services for students on the Autism Spectrum Disorder (“ASD”).

What Does The Case Law Say? Ninth Circuit has determined that hours of in-home ABA programming and services is an appropriate placement

Union School District, 15 F.3d 1519 (9 th Circuit 1994) This is the seminal case in California and the Ninth Circuit for placement and services for students on the ASD. The presenters were the attorney and the expert witness for this case. It is the case that stands for the requirement for written specific offers of placement and services in the Ninth Circuit, later codified in the 1997 revisions to the IDEA. It is also the case that stands for the appropriateness for an IEP of a hour in-home ABA program and services as the primary educational placement for a preschool student with ASD.

District arguments in Union: The Ninth Circuit turned down the District's arguments that (1) the Clinic was not certified to provide special education, but only to provide “counseling” as a related service; and (2) it was not appropriate to place a child only in a related service when it was not in conjunction with special education itself.

9 th Circuit cited Florence County School District Four v. Carter, 510 U.S. 7 (1993) Carter Established the principal that the appropriateness of a placement does not depend on whether the institution satisfies the state education standards. In Union the 9th Circuit found that the issue was best addressed under State law as California laws supplement IDEA on matters of related services, which CA terms Designated Instruction and Services.

In Joshua A 9th Circuit determines that the phrase "current educational placement" means "the placement described in the child's most recently implemented IEP" For Joshua, the most recently implemented IEP required the District to co-fund forty hours a week of in-home educational services administered by Therapeutic Pathways, a non public agency. In Joshua A 9th Circuit determines that the phrase "current educational placement" means "the placement described in the child's most recently implemented IEP"

What does California Law Specify or Require? In California, “specific educational placement” is defined as “that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to an individual with exceptional needs.” as specified in the IEP. Cal Code of Regulations, Title 5 § 3042

CEC § 56361: Continuum of Program Options …includes but is not limited to Designated Instruction and Services and instruction in the home. It permits these options as stand alone programs and services or in combination, but does not require a special education class placement in conjunction with the services.

Children between the Ages of 3 & 5: CEC § (f) permits alternative instructional settings at the home and preschool settings.

CEC § (b) As pre-school aged child approaches the age to enter elementary school environment, the child’s preparation shall be geared toward a readiness for kindergarten and later school success.

CEC § An early education program for children 3-5 years: focuses on the child and the family, and shall include both individually and small group services to be available in a variety of typical age appropriate environments for young children, including the home, and shall include opportunities for active parent involvement.

CEC § (a) Early education services may be provided to individuals or small groups & shall include: (1) Observing and monitoring the child’s behavior and development in his or her environment; (2) Presenting activities that are developmentally appropriate for the preschool child and are specially designed, based on the child’s exceptional needs, to enhance the child’s development…;

CEC § (a) (continued) (3) Interacting and consulting with family members, regular preschool teachers, and other service providers, as needed, to demonstrate developmentally appropriate activities necessary to implement the child’s individualized education program in the appropriate setting pursuant to Section and necessary to reinforce the expansion of his or her skills in order to promote the child’s educational development. These interactions and consultations may include family involvement activities;

CEC § (a) (continued) (4) Assisting parents to seek and coordinate other services in their community that may be provided to their child by various agencies; (5) Providing opportunities to young children to participate in play and exploration activities, to develop self- esteem, and to develop pre-academic skills; (6) Provide access to various developmentally appropriate equipment and specialized materials;

CEC § (a) (continued) (7) provide related services as defined in Section of Title 34 of the Code of Federal Regulations, that include parent counseling and training to help parents understand the special needs of their children and their children’s development, as that section read on May 1, 1987

CEC § settings for services includes regular preschools, family day care and home.

CEC § permits early education services to be provided through public or non public agencies or contract with a hospital.

CEC § (b) (3 ) refers to an eligible child as one who has needs that cannot be met with modification of the regular environment in the home or school, or both, without ongoing monitoring or support as determined by an individualized education program team pursuant to Section 56431>

Discussion What does the research say? What does the literature say? What do independent resources say? Why is early intensive intervention with ABA programming important for a meaningful benefit for students on the ASD?

Cautions Be wary of eclectic programs that assert that they are science based; Be wary of generic group based programs that assert that they are the placements and ABA is the related service thereto. Be wary of one-size fits all programs and services.