ABA Austism & Law
https://doi.org/10.1177/1044207318799644
799644DPSXXX10.1177/1044207318799644Journal of Disability Policy StudiesStevenson and Correa research-article2018
Research Article
Applied Behavior Analysis, Students With Autism, and the Requirement to Provide a Free Appropriate Public Education
Bradley S. Stevenson, MTS, BCBA1 and Vivian I. Correa, PhD1
Abstract
Journal of Disability Policy Studies 2019, Vol. 29(4) 206–215 © Hammill Institute on Disabilities 2018 Article reuse guidelines: sagepub.com/journals-permissions DOI: 10.1177/1044207318799644 jdps.sagepub.com
The prevalence of autism has been steadily rising over the previous decades. The diverse ways in which the disorder manifests in students and the free appropriate public education (FAPE) mandate of the Individuals With Disabilities Education Act (IDEA) requires that a student’s individualized education program (IEP) team tailor interventions to meet the unique educational needs of that student. Deciding on the most appropriate evidence-based intervention programs for students with autism can be complex. In fact, a frequent source of litigation is when families and school personnel disagree on the particular programming to be provided to students with autism. Often this litigation involves disagreement over the extent to which services should be based on the principles of applied behavior analysis (ABA). The purpose of this article is to review select case law to analyze how courts have ruled on whether schools must provide ABA services to meet FAPE requirement when families request those services, and to extrapolate implications for practice, including guidance to families and school personnel on how to work collaboratively to resolve conflicts surrounding ABA services.
Keywords autism, civil rights, law/legal issues, education, policy
The prevalence of autism has been steadily rising over the previous decades. When the Autism and Developmental Disabilities Monitoring Network, of the Centers for Disease Control and Prevention, first began tracking the rates in 2004, the prevalence of autism was one in 294 children. By 2002, this rate had risen to one in 151; in 2006, one in 111 children were affected; and in their most recent report in 2012, one in 68 children were estimated to have autism (Christensen et al., 2016). In addition to the pressure cre- ated by the rising prevalence rates, schools are challenged because of the difficulty in educating students with autism. Some of the best results come from intensive intervention programs (Virués-Ortega, 2010). However, this requires the dedication of significant resources. Furthermore, the diverse ways the disorder manifests in children means that every program must be individually tailored to the student, which requires a high level of expertise (Hill, Martin, & Nelson- Head, 2011).
Because autism is a category of disability under the Individuals With Disabilities Education Improvement Act (IDEA 2004), students classified as having autism are usu- ally assessed and placed in a school’s special education pro- gram. When a student is eligible under the IDEA (2004), the primary charge to school districts is to develop and imple-
appropriate public education (FAPE; 20 U.S.C. § 1401(9)). The FAPE mandate requires the student’s special education program (a) be provided at public expense; (b) meet the standard of the state educational agency; (c) include pre- school, elementary, or secondary education; and (d) be pro- vided in conformity with a student’s individualized education program (IEP).
These components of the FAPE mandate have been in place since the initial special education law, the Education for All Handicapped Children Act (EAHCA) was passed in 1975. Additional requirements have been added through subsequent amendments. For example, when the law was reauthorized as the Individuals With Disabilities Education Act (IDEA; 1990), the category of autism was added (20 U.S.C. § 1401[a](1)(A)(i)). In addition, in 2004, language was added that required IEP teams to base a special educa- tion student’s education and related services on peer- reviewed research to the extent practicable (20 U.S.C. § 1414[d](1)(A)(i)(IV)).
1University of North Carolina at Charlotte, USA
Corresponding Author: Bradley S. Stevenson, Melmark Carolinas, P.O. Box 77591, Charlotte, NC 28271, USA.
ment a special education program that confers a free Email: bstevenson@melmarkne.org
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One facet of the IDEA that has remained vague is the FAPE mandate. Congress intentionally refrained from pro- viding a substantive definition of FAPE, reasoning that what is appropriate must be determined on a case-by-case basis (Yell, 2016). However, a working definition came in 1982 when the U.S. Supreme Court interpreted the FAPE mandate in Board of Education of the Hendrick Hudson School District v. Rowley (1982), referred to as Rowley hereafter. This was the only Supreme Court decision on the FAPE mandate for decades, until the recent Endrew F. v. Douglas County School District (2017) case. As such, Rowley has been central to judicial interpretations of the FAPE mandate. It should be noted the Endrew F. v. Douglas County School District (2017) was issued after this review was conducted, and was, therefore, not included in this review. However, it is addressed in the “Discussion” section.
In the Rowley decision, the Supreme Court established several important legal precedents. First, a two-part test was developed to determine whether school districts fulfill the FAPE requirement. With prong one, the court asked whether the school district had complied with the procedures of the law. With the second prong, the court assessed whether the IEP was reasonably calculated to enable the student to receive some educational benefit. A second important prec- edent was that in disputes over educational methods, defer- ence should be given to the school districts because the courts lack the requisite knowledge and experience to decide these questions.
Despite the Supreme Court’s decision in Rowley, dis- agreements over the FAPE mandate have continued, becom- ing the most frequent source of litigation in special education (Yell, 2016). This increase is especially noticeable in cases concerning students with autism. Zirkel (2011) demon- strated this by comparing (a) the percentage of students with autism enrolled in special education and (b) the per- centage of FAPE and least restrictive environment (LRE; 20 U.S.C. § 141[a](5)) litigation concerning students with autism. Zirkel found that although students with autism comprised only 3.7% of students in special education, they accounted for nearly 45% of all the FAPE/LRE.
These disputes often occur in relation to families’ request for services based on the principles of applied behavior analysis (ABA; Hill et al., 2011). Cooper, Heron, and Heward (2007) defined ABA as “the science in which tac- tics derived from the principles of behavior are applied sys- tematically to improve socially significant behavior and experimentation is used to identify the variables responsible for behavior change” (p. 20). Put more simply, ABA is the practice of identifying environmental factors that influence a person’s behavior (e.g., challenging behavior, academic skills, language capabilities, adaptive skills), designing interventions targeting those factors, and demonstrating the interventions are responsible for the improvement.
In their seminal article, Baer, Wolf, and Risley (1968) identified seven dimensions of ABA. These were (a) applied, meaning it is focused on behaviors that will improve people’s lives; (b) behavioral, meaning the target behavior is objec- tively defined and directly measured; (c) analytic, achieved by experimentally demonstrating the intervention is respon- sible for the improvement; (d) technological, or described with sufficient detail to facilitate replication of the proce- dures; (e) conceptually systematic, which requires the inter- ventions and interpretations be consistent with the principles of behavior (e.g., positive reinforcement); (f) effective, meaning the intervention improved the target behavior; and (g) generality, which requires improvement to last over time, cross over to other environments, and affect other behaviors. This has led to the development of a plethora of interventions ranging from focused interventions (e.g., prompting strate- gies, discrete trial teaching, functional communication train- ing) to more comprehensive treatments (e.g., the Lovaas model, early start Denver model, verbal behavior programs).
Families often request ABA-based educational methods because of their documented effectiveness for individuals with autism. Studies have found ABA led to greater gains than comparison treatments in (a) cognitive, language, and adaptive scores (Howard, Sparkman, Cohen, Green, & Stanislaw, 2005); (b) intelligence, language, daily living skills, and social behavior (Remington et al., 2007); (c) intel- ligence, language, adaptive behavior, and autism diagnosis (Dawson et al., 2010); and (d) Autism Diagnosis Observation Schedule (Zachor, Ben-Itzchak, Rabinovich, & Lahat, 2007). Furthermore, Virués-Ortega (2010) conducted a com- prehensive meta-analysis of studies analyzing the effective- ness of ABA and found that intensive, long-term ABA intervention had medium to large effects for improving intellectual functioning, language, daily living skills, and social functioning for children with autism.
The controversy between parents and school districts regarding FAPE and the use of ABA has been occurring for decades. In 2000, Yell and Drasgow examined due process hearings and court cases concerning FAPE, in which par- ents sought to compel school districts to provide, fund, or reimburse them for services based on the Lovaas treatment program, which is based on the principles of ABA. After reviewing a total of 45 cases and hearings, the researchers found that decisions favored families for 76% of the cases, whereas school districts prevailed in 24%. In describing the reasons why school districts won, the authors cited they (a) followed procedural rules, (b) used research-supported practices, and (c) hired qualified staff to implement, and experts to assist with programming. The reasons districts lost cases were they (a) failed to inform parents of their pro- cedural rights and (b) used evaluations that did not address all areas of needs. Ultimately, Yell and Drasgow concluded the Lovaas cases helped to shift the interpretation of FAPE from procedural to substantive as more emphasis was put
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on the term “meaningful” educational benefit than in previ- ous cases.
Since Yell and Drasgow’s (2000) initial review, three other reviews have been published with results that have contradicted Yell and Drasgow’s finding that courts find for parents for the majority of cases. Due to the increased authority in federal decisions, Nelson and Huefner (2003) searched federal cases between 1997 and 2002. They found that school districts prevailed in 79% of cases. In discussing the findings, they described how courts deferred to schools regarding educational methods unless the district could not justify their decision or a severe procedural violation occurred. They also contrasted their findings from those of Yell and Drasgow, pointing out that parents are granted relief far less frequently than in Yell and Drasgow’s review.
That same year, Etscheidt (2003) reviewed all court decisions between 1997 and 2002. This resulted in schools winning 57% of cases. Three major reasons for the courts decisions to side for the schools were cited. These included (a) the alignment of the IEP with evaluation data, (b) quali- fications of the IEP team, and (c) the appropriateness of the method for achieving the proposed goals. Again, deference to schools regarding educational methods was noted, stat- ing families received their chosen method only if the school’s method was inappropriate.
Finally, Choutka, Doloughty, and Zirkel (2004) looked at cases through August 2001 concerning ABA more broadly, as opposed to simply the Lovaas method. They found courts were split in their findings for parents and districts. Choutka et al. listed four determining factors. These included (a) the testimony of expert witnesses, (b) appropriateness of IEP components, (c) adherence to procedural requirements, and (d) data collected.
Because of the complexity of educating students with autism and the general terms used to define FAPE, ongoing disagreement between families and school personnel regard- ing the need to use ABA to meet the requirements of an FAPE is not surprising. As such, reviews of case law are needed to determine how the law is being interpreted at a given point of time. Due to the fact that more than a decade has passed since the last review, it is important for an update. Therefore, the purpose of this article was to review federal case law where families of students with autism sought to compel school dis- tricts to provide, fund, or reimburse them for ABA services as part of the FAPE mandate. In addition, due process was sum- marized to put the cases into proper context, and implications for practice are made.
Method
Review of Due Process
When reviewing case law, it is important to understand the structure of the courts and how cases move through them. This is because different courts have different authority,
with higher court decisions being binding for lower courts within the higher court’s jurisdiction. As such, the influence of any court decision depends on the type of court. Osborne and Russo (2014) describe the course of due process in their chapter on dispute resolution. When a dispute occurs between a family and the school system, the school system is obligated to offer the services of an independent media- tor. If mediation is waived by the family, due process is initiated.
When administering due process, states can employ a “two-tier” or “one-tier” system. With a two-tiered system, due process begins with a hearing by the local school dis- trict, the decisions of which can be appealed and heard by an officer or panel at the state level and subsequently through the state or federal court system. In contrast, a one- tiered system does not have the local review. In a one-tiered system, due process begins with a review by the state department of education, and decisions can be appealed to state or federal courts.
If a state uses a two-tiered system, which most do not, the local school board must schedule a resolution session within 15 days of due process being requested. These sessions include the families, relevant IEP members, and a school board member. Resolution sessions can only be waived if both parties consent to it. If the dispute is not resolved within 30 days, a due process hearing is scheduled.
Due process hearings are overseen by an impartial hear- ing officer (IHO) supplied by the district. The IHO has the authority to apply the law and issue orders to either party. However, that authority is limited to the specifics of the case at hand. Broader school policies cannot be altered. For example, an IHO can order the district to fund an ABA pro- gram for the student in question, but cannot order the dis- trict to fund an ABA program for all students with autism.
If either party is unhappy with the decision of the IHO, they can appeal for state-level review. Alternatively, if the state has a one-tiered system as most do, due process begins at this level. State reviews are overseen by a state review officer or state review panel, typically of three or more, with similar authority to the IHO, in that, their decisions are lim- ited to the case at hand.
If there is a decision to appeal beyond the state review, it can be done through state courts (i.e., state trial court, state appellate court, state supreme court, U.S. Supreme Court) or federal courts (i.e., U.S. District Court, U.S. Circuit Court of Appeals, U.S. Supreme Court). Because the IDEA is a federal law, the decisions of federal courts have greater authority even when cases are heard by state courts.
The lowest levels of federal courts, and, therefore, the first to hear an appeal from a due process hearing, are the district courts. District courts are divided into 94 separate districts across the nation. These courts decide cases from their region based on established legal principles. Precedence from district courts are limited to their district,
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and, as such, district courts have little authority compared with the Supreme Court and appellate courts.
Appeals from the district courts go to the U.S. Courts of Appeals, which consists of 13 circuits distributed across the United States. Appellate court decisions set precedent for the district courts below them. For instance, decisions by the Fifth Circuit Court of Appeals are controlling for district courts in Texas, Louisiana, and Mississippi. Therefore, the appellate courts are second only to the Supreme Court in terms of authority regarding the IDEA and the FAPE mandate.
Appellate court decisions can then be appealed to the U.S. Supreme Court. The decisions of the Supreme Court set precedent for all other courts in the nation, and are, therefore, the most authoritative. Cases are heard on peti- tion for writ of certiorari, and the Supreme Court typically takes cases that have been heard by lower courts and there is a conflict in the lower courts’ decisions (e.g., two circuit courts deciding the same issue differently). However, rul- ings by the Supreme Court are rare as it is under no obliga- tion to hear an appeal.
Review of Case Law
To identify cases, a search of the Westlaw database was conducted for federal cases decided between December 3, 2004, and August 2016. The search terms used were applied behavior analysis, autism, and free and appropriate public education. Federal cases were prioritized due to the greater authority they carry. The starting point for the search was the day the IDEA (2004) was signed into law. This resulted in an initial identification of 91 decisions.
Inclusion and Exclusion Criteria
The focus of this review was to examine whether schools could be legally compelled to provide ABA services under the argument that denying a student with autism ABA vio- lated the FAPE mandate. As such, to be included in this review, decisions had to be disputes where (a) the student in question was diagnosed was autism, (b) the school district did not provide ABA as requested by the family, and (c) it was argued the lack of ABA prevented the student from receiving a FAPE. The deviations from the requested ABA program could be varied. Some examples include the school district not providing the requested ABA hours, electing to use another method, and/or not providing ABA services with fidelity. All these examples would be included in this review because the central argument to all of them is that a student with autism did not receive his or her FAPE as a direct result of lack of access to ABA.
However, decisions were excluded if the case did not address an argument that lack of access to ABA led to a denial of FAPE. For instance, if due process was initiated
under a different legal requirement than FAPE, such as a family arguing the student was not educated in his or her LRE, the case would be excluded. Similarly, if a family alleged a FAPE was not provided because of a lack of prog- ress, but attributed this process to some factor other than a lack of ABA (e.g., not providing one-to-one staffing), the decision would be excluded.
Last, only the final decisions were included. Therefore, if a decision was delivered by a district court, appealed to an appellate court, and the appellate court issued its own deci- sion, only the appellate court’s decision was included. Similarly, if an appellate court heard a case and remanded it back to a lower court for the final decision, then the final decision made by the lower court would be included. After applying the inclusion and exclusion criteria, 27 decisions remained for review.
Data Analysis
The included decisions were analyzed in the following way. First, studies were sorted in two ways. Decisions favoring schools were separated from decisions favoring families, and appellate court decisions were separated from district court decisions. Second, the background of each case was read to identify the reason due process was initiated (e.g., the district provided an alternative method to ABA, the requested hours were not provided). Third, the discussion was reviewed to identify the determining factors that led to the respective decisions (e.g., the district predetermined the educational method, administrative remedies were not exhausted). Last, the various factors that led to due process and determined decisions were reviewed to identify which factors occurred across which decisions. These factors were noted and used to make the data in Tables 1 and 2. Note that some cases appear in both Tables 1 and 2 as a court may recognize an arugment for one side, but still ultimately decide in favor of the other. For instance, with Sumter County School Dist. 17 v. Heffernan ex rel. TH (2010/2011) the court acknowledged the argument that students were entitled with a right to access, not a specific outcome, but still found in favor of the families because agreed upon ser- vices were not provided.
Results
Of 27 decisions included, nine were heard in an appellate court and 17 were heard in district courts. Of these cases, 17 (63%) involved disputes where school districts did not pro- vide requested ABA services at all, preferring another method (e.g., TEACCH); five (19%) involved disputes of the quality of ABA; two cases (7%) disputed the number of hours of ABA; in one case (4%), ABA services were dis- continued against the wishes of the parents; one case (4%) involved a dispute where the families desired compensatory
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Table 1. Arguments Favoring Schools.
Right to Defer to Procedural violations, Research-based Flawed Case access schools not substantive components case
Appellate courts E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ. X X X
(2013/2014) F.L. ex rel. F.L. v. New York City Dept. of Educ. X X
(2012/2014) M.H. v. New York City Dept. of Educ. (2010/2012) X X X X P.K. ex rel. S.K. v. New York City Dept. of Educ. X
(2011/2013)
(2010/2011) Sumter County School Dist. 17 v. Heffernan ex rel. TH X
T.P. ex rel S.P. v. Mamaroneck Union Free School Dist. X (2007/2009)
District courts Aaron P. v. Department of Educ., Hawaii (2011) X B.K. v. New York City Dept. of Educ. (2014) X X D.A.B. v. New York City Dept. of Educ. (2013) X X Joshua A. ex rel. Jorge A. v. Rocklin Unified School Dist. X X X X
(2008) K.S. ex rel. P.S. v. Fremont Unified School Dist. (2009) X X L.G. v. Wissahickon School Dist. (2011) X M.M. ex rel. A.M. v. New York City Dept. of Educ. X X X
Region 9 [Dist. 2] (2008) Parenteau v. Prescott Unified School Dist. (2008) X X X P.C. ex rel. J.C. v. Harding Tp. Bd. of Educ. (2013) X X X R.K. and D.K. v. Clifton Board of Education (2013) X S.B. v. New York City Department of Education (2016) X Seladoki v. Bellaire Local School Dist. Bd. of Educ. X X X
(2009) S.M. v. Hawai’i Dept. of Educ. (2011) X X X X Z.F. v. South Harrison Community School Corp. (2005) X X X
Table 2. Arguments Favoring Families.
Inappropriate Procedural led to Services not Case IEP Predetermined substantive violations provided
Appellate courts County School Bd. of Henrico County, Virginia v. Z.P. ex rel. X
R.P. (2003/2005) Deal v. Hamilton County Bd. of Educ. (2003/2005) X X X P.K. ex rel. S.K. v. New York City Dept. of Educ. [Region 4] X
(2011/2013) R.E. v. New York City Dept. of Educ. (2011/2012) X Sumter County School Dist. 17 v. Heffernan ex rel. TH
(2010/2011) District courts County School Bd. of Henrico County, Va. v. R.T. (2006) X Orange Unified School Dist. v. C.K. ex rel. A. Ki. (2012) X X S.B. v. New York City Department of Education (2016) X W.S. v. City School District of the City of New York (2016) X Young v. Ohio (2013) X
Note. IEP = individualized education program.
X
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services for years when ABA was not provided even though the families had not requested them; and, in a final case (4%), ABA was not provided because of a lack of availabil- ity of providers in the area. Courts decided in favor of schools in 61% (n = 17) of the cases and in favor of fami- lies in 41% (n = 11). The reason there were 28 cases and only 27 decisions was that one appellate court decision included two separate cases (M.H. v. New York City Dept. of Educ., 2010/2012).
Decisions Favoring Schools
When finding in favor of schools, judges cited one or more of the following reasons: (a) schools were required to pro- vide access to educational benefits, not guarantee the best possible outcome for students; (b) deference was given to schools regarding educational methods; (c) procedural vio- lations of IDEA only constituted a violation of FAPE if they directly led to substantive violations; (d) the components of a district’s method was based on peer-reviewed research; and/or (e) there was a fundamental flaw in the parents’ case. For a list of the cases supporting each argument, see Table 1.
Right to access education, not to the best outcome. The most common argument in decisions favoring schools who did not provide ABA was that students had a right to access some educational benefit, but no guarantee of any particular outcome. This meant that even if ABA was more effective than the method chosen by the district, it did not mean the district was compelled to use ABA, so long as they had rea- sonable cause to believe their chosen method would confer some educational benefit. This reason was cited in every decision that favored school districts, and is exemplified in E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ. (2013/2014), where the family withdrew their child from the public schools to enroll her in a program that used ABA exclusively. In that decision, the Fourth Circuit Court of Appeals wrote
A free appropriate public education must confer “some educational benefit” on the disabled child receiving services. Rowley, 458 U.S. at 200, 102 S.Ct. 3034. Such an education, however, need not “maximize each child’s potential”; the IDEA was concerned with equality of access rather than equality of outcome. (p. 6)
Deference to school districts regarding educational methods. Another common reason courts sided with school districts that did not provide the ABA services as requested was there was no guaranteed right to any one educational method, and in disputes over educational methods, deference should be given to the district. For instance, in Z.F. v. South Harrison Community School Corp. (2005), the district discontinued dedicated ABA programs when Z.F. entered kindergarten,
opting instead to provide a program that would use “school- based methodologies and curricula but would incorporate some ABA instructional methods” (p. 3). When the parents disputed this, arguing the exclusive use of ABA methods was needed to provide an FAPE, the Southern District Court of Indiana disagreed, writing “the courts have repeatedly recog- nized that they should generally defer to the decisions of the state and local educational agencies in such disputes” (p. 9), citing Rowley as precedent.
Procedural violations did not lead to substantive violations. One of the precedents Rowley set was that, in cases concerning FAPE, courts should first assess for procedural violations of the IDEA, and then assess for substantive violations. In sev- eral cases, procedural violations of the IDEA were docu- mented. However, courts still decided districts had met the FAPE mandate, provided the procedural violations did not directly lead to a substantive violation.
F.L. ex rel. F.L. v. New York City Dept. of Educ. (2012/2014) illustrates this clearly. In this case, the family enrolled F.L. in a private school that provided ABA because the district insisted on using the TEACCH method instead of ABA, did not create a transition plan, chose what they viewed as an inappropriate group placement, and commit- ted several procedural violations (i.e., failing to conduct a functional behavior assessment, not providing parental counseling, not including parents in school selection). The court found in favor of the district for the reasons described above. They also addressed the procedural violations, writ- ing that
While “[s]ubstantive inadequacy automatically entitles the parents to reimbursement,” . . . procedural violations do so only if they “impeded the child’s right to a free appropriate public education,” “significantly impeded the parents’ opportunity to participate in the decision making process[,]” or “caused a deprivation of educational benefits.” (p. 3)
As such, even though procedural violations were acknowledged, because the procedural violations did not lead to substantive violations, they did not constitute a vio- lation of the FAPE mandate.
Components of district’s method based on peer-reviewed research. Although federal legislation has increasingly required educational methods be based on research, only one case in this review included a challenge to the district’s pro- gram on the basis that it was not based on peer-reviewed research (Joshua A. ex rel. Jorge A. v. Rocklin Unified School Dist., 2008). In this case, the district provided an eclectic approach, and one of the claims made by the family was this constituted a violation because the eclectic approach was not supported by peer-reviewed research, whereas ABA had an extensive body of evidence supporting it. The Eastern
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District Court of California disagreed, writing that even with the increased emphasis on research-based educational meth- ods, “It does not appear that congress intended that the ser- vice with the greatest body of research be used to provide FAPE” (p. 3). Because the district’s eclectic approach incor- porated components supported by research, the district met its FAPE obligation.
Flawed case. A final reason courts favored districts was when there was some inherent flaw in the parents’ case. This flaw could be procedural or substantive. For instance, one of the reasons the Fourth Circuit Court of Appeals dismissed the family’s claims in E.L. ex rel. Lorsson v. Chapel Hill- Carrboro Bd. of Educ. (2013/2014) was because the family had not exhausted their administrative options at the state level. For a substantive example, the Parenteau family alleged a violation of FAPE for not providing ABA services for an IEP year even though ABA services were never requested (Parenteau v. Prescott Unified School Dist., 2008).
Decisions Favoring Families
When courts found in favor of families, they cited one or a combination of the following: (a) The IEP was inappropri- ate, and the district knew this at the time of developing it; (b) decisions were predetermined prior to the IEP meeting; (c) procedural violations directly led to substantive violations; and/or (d) agreed upon services were not delivered. For a list of the cases supporting the various reasons, see Table 2.
IEP was inappropriate. The most common reason courts found in favor of families was the IEP was inappropriate for the student and the district had reason to know this when it was created. As such, the IEP was not reasonably calculated to provide educational benefit and could not provide a FAPE. For instance, in County School Bd. of Henrico County, Va. v. R.T. (2006), the parents sought tuition reimbursement for a private ABA school. The parents enrolled R.T. in this school because they felt the TEACCH method used by the district was inappropriate. The judge of the Eastern District Court of Virginia agreed, not because R.T. had a right to ABA, but because TEACCH was inappropriate. He wrote,
the preponderance of the evidence demonstrated that to learn attending skills, reduce the stimming, and learn imitation skills, R.T. required a highly structured, highly focused education methodology such as ABA therapy in which R.T. would receive intensive one-on-one instruction. The TEACCH program at Twin Hickory was not designed to, did not, and could not provide R.T. with this type of instruction. (p. 25)
Predetermination. A second reason courts found in favor of families was when the district predetermined what services would be provided. This violates the FAPE mandate because
it does not take the unique needs of the student into account. Deal v. Hamilton County Bd. of Educ. (2003/2005) is the most well-known example. In this case, the family sought reimbursement for the ABA-based education they provided him when the district refused to provide ABA services. The Sixth Circuit Court of Appeals found in favor of the family writing
The facts of this case strongly suggest that the School System had an unofficial policy of refusing to provide one-on-one ABA programs . . . The School System seemed to suggest, at oral argument, that it is entitled to invest in a program such as TEACCH and then capitalize on that investment by using the TEACCH program exclusively. But this is precisely what it is not permitted to do, at least without fully considering the individual needs of each child. (p. 15)
Procedural violations led to substantive violations. As noted earlier, procedural violations do not constitute a violation of FAPE if they do not lead to substantive violations. How- ever, one appellate court case and one district case found that procedural violations did lead directly to substantive violations because they prohibited the parents’ ability to meaningfully participate in the IEP process. In Orange Uni- fied School Dist. v. C.K. ex rel. A. Ki. (2012), the parents were seeking reimbursement for funding an ABA program when the district did not provide ABA services. One reason the Central District Court of California found in favor of the family was because the “district’s failure to include a spe- cial education teacher in the IEP team infringed Parents’ right to meaningfully participate in Student’s IEP formation process, thus constituting a denial of FAPE” (p. 6).
Agreed upon services not provided. In one final case, Sumter County School Dist. 17 v. Heffernan ex rel. TH (2010/2011), the district did not provide ABA services even though they agreed to in the IEP. Specifically, the IEP stated T.H. was to be provided 15 hr of ABA services. Although T.H. made some small gains, the Fourth Circuit Court of Appeals affirmed the lower court’s decision that a FAPE was not provided, writing
When the evidence of T.H.’s small improvements in a few tested areas is considered against the District’s conceded failure to provide the 15 hours of ABA therapy required by the IEP . . . the District’s failure to properly implement material portions of the IEP denied T.H. a FAPE for the 2005–06 school year. (p. 7)
Discussion
Designing and deciding the appropriate education for the very heterogeneous population of students with autism is, by itself, a complicated task. When this is coupled with an intentionally vague definition of FAPE provided by
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Congress, it is understandable and even expected that dis- putes over the FAPE mandate are such a frequent source of litigation. Because the most recent review of case law related to ABA, students with autism, and the FAPE man- date was over a decade old (i.e., Choutka et al., 2004), there was a need to update this review.
Although the law may be ambiguous, court rulings on the issue provide guidance on how the FAPE mandate is interpreted, and the case law reviewed here has been consis- tent on a number of points. First, it was clear that students did not have a right to any particular method, including ABA. This was expressed through a couple of frequently cited justifications. For instance, because access to educa- tion was guaranteed but the outcome was not, districts have been under no obligation to provide the most effective methods. Also, in disputes over appropriate educational methods, courts generally deferred to the school district’s opinion. A second point that became clear was that courts would assess for procedural violations first and substantive violations second. However, for a procedural violation to constitute a violation of FAPE, it had to lead to a substan- tive violation. Third, a district’s program did not need to be based on peer-reviewed research so long as components of that method are research based. Fourth, if a family was able to clearly demonstrate a district’s program was inappropri- ate for their child and the district had reason to know this when the decision was made, it constituted a violation of the FAPE mandate. Fifth, making predetermined educational decisions or basing decisions on any factor other than the needs of the child constituted a violation of the FAPE man- date. Last, districts had to deliver the agreed upon services to the specifications listed in the IEP.
Many of these findings echo those of the previous reviews (Choutka et al., 2004; Etscheidt, 2003; Nelson & Huefner, 2003; Yell & Drasgow, 2000). For instance, pre- vious reviews noted the importance of the Rowley prece- dent, adequately evaluating students, and basing programs on documented needs. The significance of Rowley was noticed here as well, as many of the factors identified above came directly from the Rowley decision (i.e., right to access, not quality; deference to districts; two-pronged approach that assesses procedural violations and then sub- stantive violations). However, this review also identified new elements. This includes that predetermination vio- lates the FAPE mandate, a decision on the requirement for methods based on peer-reviewed research, and the fact that procedural violations need to result in substantive vio- lations to be considered a failure to provide an FAPE. In addition, the percentage of cases decided in favor of schools in this review (61%) was in contrast to Yell and Drasgow (2000), which found that schools prevailed in 24% cases, and to Nelson and Huefner (2003), which found that schools won 79% of cases. The results of this review found rates more similar to those found by
Etscheidt (2003), in which schools had a 57% win rate. This suggests courts tend to defer to schools, and that FAPE has not been elevated to a higher level, where “meaningful” is given more consideration as Yell and Drasgow (2000) suggested.
Endrew F. v. Douglas County School District (2017)
The interpretation of “meaningful” may change soon. As stated previously, the Rowley decision set the dominant precedent for courts interpreting the FAPE mandate for decades because it was the only relevant Supreme Court decision. That changed in 2017, after the cutoff for this review, when the Supreme Court issued a decision on Endrew F. v. Douglas County School District (2017). In this case, the parents of Endrew, a student with autism, were seeking reimbursement for the cost of a private school offering ABA services. They argued Endrew was denied an FAPE due to a lack of progress, as evidenced by the district using the same IEP goals and objectives from year to year.
The Tenth Circuit Court of Appeals held the Douglas County IEP met the FAPE requirement. They based this decision on language from Rowley stating that IEPs must provide “some educational benefit,” which they had long interpreted to mean any “educational benefit [that is] merely . . . more than de minimis” (p. 4). The Supreme Court dis- agreed, stating a different standard for educational benefit was needed in the Endrew case because of the differences between the students involved in the two cases. Amy Rowley was fully integrated into regular education, and though she may not have been reaching her full potential, test scores indicated she was performing better than her peers. Endrew, however, was not fully integrated into gen- eral education, and meeting grade level expectations was not a reasonable goal. Therefore, the Supreme Court clari- fied the standard for educational benefit, writing
A child’s IEP need not aim for grade-level advancement if that is not a reasonable prospect. But that child’s educational program must be appropriately ambitious in light of his circumstances . . . The goals may differ, but every child should have the chance to meet challenging objectives. (p. 5)
Implications for Practice
The rulings in these cases have implications for school dis- tricts, families, and courts. For schools, the courts have shown there is no right to any method, including ABA, and they will generally defer to the district’s decision. However, this is based on the presumption that decisions on educa- tional methods are made to address the unique needs of that student. In cases where the schools base decisions on any- thing other than student needs, it has been interpreted as a
214 Journal of Disability Policy Studies 29(4)
violation of the FAPE mandate. This includes factors such as there not being qualified ABA providers in the area and not wanting to invest the resources to establish an ABA pro- gram. Therefore, decisions should only be based on what the IEP team believes is appropriate for the student.
Because decisions must be based on the unique needs of the student and IEPs should be calculated to provide educational benefit, schools should collect data prior to the creation of and throughout implementation of the IEP to drive decisions on educational methods. This is because these data can show the degree to which a student is pro- gressing with a particular method. Therefore, a school dis- trict can justify its decision to provide ABA or an alternative method based on the performance of the stu- dent, thus demonstrating the decision was made to meet that child’s needs. Incidentally, the behavioral data taken in ABA programs serve this function extremely well. However, there are no requirements that data replicate those found in ABA programs.
Third, IEP teams should take care to continually research and implement the most effective methods, even if their cur- rent methods are effective to some degree. Although an entire program does not need to be based on research, only the components of the program, methods still needed to be supported by peer-reviewed research on some level. In addition, the Endrew decision likely raises the amount of progress schools will be accountable for students with autism. Therefore, they should take care to use the most effective methods to increase the likelihood they meet this standard. Currently, ABA-based methods have the strongest evidence base (National Autism Center, 2015). Therefore, ABA should be considered by districts, and if the districts opt to not use ABA methods, an adequate rationale should be provided for why another method was selected.
With respect to families, it is recommended they keep careful data on their child’s educational programs. These include, but are not limited to, the child’s needs, interven- tions, progress, recommendations by experts, rationale for educational decisions, and discrepancies between those dif- ferent components (e.g., progress is lacking but interven- tions remain the same). This way if a family feels ABA is required to confer an FAPE, documentation can be provided to show a lack of progress with alternative methods, why those methods are not appropriate, when they became inap- propriate, and when the district had data indicating they were inappropriate. All these can be required to prove a FAPE was not provided, and the provision of ABA will facilitate a FAPE.
A second recommendation for families is to become familiar with federal laws, state laws, and relevant judicial decisions. Becoming familiar with the laws will inform families of what their rights are. Although this article has outlined the basics of federal law, one component of the federal definition of FAPE is it must conform to state
education policies, and state laws vary. Thus, it is important to review state laws too. Also, courts interpret the law in different ways. Becoming familiar with relevant court deci- sions will provide insight into how a case may be viewed in one’s relevant circuit. Families can access advocacy centers (e.g., Center for Parent Information and Resources, Parent Training and Information Centers, Autism Speaks) or the Wrightslaw website to help them understand their rights and locate support services.
Acknowledgments
We would like to thank Dr. Mitch Yell for his guidance through- out the development of this article. From initial conversations to his thorough edits, his efforts have been extremely valuable.
Authors’ Note
Bradley S. Stevenson is currently affiliated with Melmark Carolinas.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
References
Aaron, P. v. Department of Educ., Hawaii, No. 10-00574 LEK– KSC, 2011 WL 5320994 (D. Hawai’i October 31, 2011).
Baer, D. M., Wolf, M. M., & Risley, T. R. (1968). Some current dimensions of applied behavior analysis. Journal of Applied Behavior Analysis, 1, 91–97.
Board of Education of the Hendrick Hudson School District v. Rowley, 458 U.S. 176 (1982).
B.K. v. New York City Dept. of Education, 12 F. Supp. 3d 343 (E.D. N.Y. 2014).
Choutka, C. M., Doloughty, P. T., & Zirkel, P. A. (2004). The “discrete trials” of applied behavior analysis for children with autism outcome-related factors in the case law. The Journal of Special Education, 38, 95–103.
Christensen, D. L., Baio, J., Braun, K. V., Bilder, D., Charles, J., Constantino, J. N., . . . Yeargin-Allsopp, M. (2016). Prevalence and characteristics of autism spectrum disorder among children aged 8 years—Autism and developmen- tal disabilities monitoring network, 11 sites, United States, 2012. Morbidity and Mortality Weekly Report, 65(3), 1–23. doi:10.15585/mmwr.ss6503a1
Cooper, J. O., Heron, T. E., & Heward, W. L. (2007). Applied behavior analysis (2nd ed.). Upper Saddle River, NJ: Merrill/ Prentice Hall.
County School Bd. of Henrico County, Va. v. R.T., 433 F. Supp. 2d 657 (E.D. Va. 2006).
215 Stevenson and Correa
County School Bd. of Henrico County, Virginia v. Z.P. ex rel. R.P., 285 F. Supp. 2d 701 (E.D. Va. 2003), rev’d 399 F.3d 298 (4th Cir. 2005).
D.A.B. v. New York City Dept. of Education, 973 F. Supp. 2d 344 (S.D. N.Y. 2013).
Dawson, G., Rogers, S., Munson, J., Smith, M., Winter, J., Greenson, J., . . . Varley, J. (2010). Randomized, controlled trial of an intervention for toddlers with autism: The Early Start Denver Model. Pediatrics, 125(1), e17–e23.
Deal, v. Hamilton County Bd. of Education, 259 F. Supp. 2d 687 (E.D. Tenn. 2003), rev’d 392 F.3d 840 (6th Cir. 2005).
Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1400 et seq. (1975).
Endrew, F. v. Douglas County School District, 197 S.Ct. 988 (2017).
E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 975 F. Supp. 2d 528 (M.D. N.C. 2013), aff’d, 773 F.3d 509 (4th Cir. 2014).
Etscheidt, S. (2003). An analysis of legal hearings and cases related to individualized education programs for children with autism. Research and Practice for Persons With Severe Disabilities, 28, 51–69.
F.L. ex rel. F.L. v. New York City Dept. of Educ., No. 11–Civ– 5131 (RKE), 2012 WL 4891748 (S.D. N.Y. 2012), aff’d 553 Fed.Appx. 2 (2d Cir. 2014).
Hill, D. A., Martin, E. D., Jr., & Nelson-Head, C. (2011). Examination of case law (2007–2008) regarding autism spectrum disorder and violations of the Individuals With Disabilities Education Act. Preventing School Failure, 55, 214–225.
Howard, J. S., Sparkman, C. R., Cohen, H. G., Green, G., & Stanislaw, H. (2005). A comparison of intensive behav- ior analytic and eclectic treatments for young children with autism. Research in Developmental Disabilities, 26, 359–383.
Individuals With Disabilities Education Act of 1990, 20 U.S.C. § 1400 et seq. (1990).
Individuals With Disabilities Education Improvement Act of 2004, 20 U.S.C. § 1400 et seq. (2004).
Joshua, A. ex rel. Jorge A. v. Rocklin Unified School Dist., No. CV 07-01057 LEW KJM, 2008 WL 906243 (E.D. Calif. 2008).
K.S. ex rel. P.S. v. Fremont Unified School Dist., 679 F. Supp. 2d 1046 (N.D. Calif. 2009).
L.G. v. Wissahickon School Dist., Nos. 06–0333, 06–3816, 2011 WL 13572 (E.D. Pa. 2011).
M.H. v. New York City Dept. of Educ., 712 F. Supp. 2d 125 (S.D. N.Y. 2010), aff’d 685 F.3d 217 (2d Cir. 2012).
M.M. ex rel. A.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498 (S.D. N.Y. 2008).
National Autism Center (2015). Evidence-based practice and autism in the schools (2nd ed.). Randolph, MA: Author.
Nelson, C., & Huefner, D. S. (2003). Young children with autism: Judicial responses to the Lovaas and discrete trial training debates. Journal of Early Intervention, 26, 1–19.
Orange Unified School Dist. v. C.K. ex rel. A.Ki., No. SACV 11–1253 JVS(MLGx), 2012 WL 2478389 (C.D. Calif. 2012).
Osborne, A. G., & Russo, C. J. (2014). Dispute resolution. In A. G. Osborne & C. J. Russo (Eds.), Special education and the law: A guide for practitioners (pp. 185–225). Thousand Oaks, CA: Corwin Press.
P.C. ex rel. J.C. v. Harding Tp. Bd. of Educ., No. 2:11–06443 (WJM), 2013 WL 3938969 (D. N.J. 2013).
P.K. ex rel. S.K. v. New York City Dept. of Educ. (Region 4), 819 F. Supp. 2d 90 (E.D. N.Y. 2011), aff’d 526 Fed.Appx. 135 (2d Cir. 2013).
Parenteau, v. Prescott Unified School Dist., No. CV 07–8072–PCT– NVW, 2008 WL 5214997 (D. Ariz. 2008).
R.E. v. New York City Dept. of Educ., No. 09–CV–4478 (KAM) (RLM), 2011 WL 1131522 (E.D. N.Y. 2011), aff’d 694 F.3d 167 (2d Cir. 2012).
R.K. and D.K. v. Clifton Board of Education, No. 11-6231 (KSH) (PS), 2013 WL 12089496 (D. N.J. 2013).
Remington, B., Hastings, R. P., Kovshoff, H., Degli Espinosa, F., Jahr, E., Brown, T., . . . Ward, N. (2007). Early intensive behavioral intervention: Outcomes for children with autism and their parents after two years. American Journal on Mental Retardation, 112, 418–438.
S.B. v. New York City Department of Education, No. 14cv10193, 2016 WL 1271690 (S.D. N.Y. 2016).
S.M. v. Hawai’i Dept. of Educ., 808 F. Supp. 2d 1269 (D. Hawaii 2011).
Seladoki, v. Bellaire Local School Dist. Bd. of Educ., No. C2–07– 1272, 2009 WL 3127775 (S.D. Ohio 2009).
Sumter County School Dist. 17 v. Heffernan ex rel. TH, No.3:10– 302–JFA, 2010 WL 3420178 (D. S.C. 2010), aff’d 642 F.3d 478 (4th Cir. 2011).
T.P. ex rel S.P. v. Mamaroneck Union Free School Dist., No. 06 CIV 0509(CLB), 2007 WL 5396672 (S.D. N.Y. 2001) rev’d 554 F.3d 247 (2d Cir. 2009).
Virués-Ortega, J. (2010). Applied behavior analytic intervention for autism in early childhood: Meta-analysis, meta-regres- sion and dose–response meta-analysis of multiple outcomes. Clinical Psychology Review, 30, 387–399.
W.S. v. City School District of the City of New York, No. 15 CV 3806-LTS, 2016 WL 2993208 (S.D. N.Y. 2016).
Yell, M. L. (2016). The law and special education (4th ed.). Upper Saddle River, NJ: Merrill/Prentice Hall.
Yell, M. L., & Drasgow, E. (2000). Litigating a free appropriate public education: The Lovaas hearings and cases. Journal of Special Education, 33, 206–215.
Young, v.Ohio, No. 1:12cv967, 2013 WL 146365 (S.D. Ohio 2013). Z.F. v. South Harrison Community School Corp., No. 404CV
0073DFHWGH, 2005 WL 2373729 (S.D. Ind. 2005). Zachor, D. A., Ben-Itzchak, E., Rabinovich, A. L., & Lahat, E.
(2007). Change in autism core symptoms with intervention. Research in Autism Spectrum Disorders, 1, 304–317.
Zirkel, P. A. (2011). Autism litigation under the IDEA: A new meaning of “disproportionality.” Journal of Special Education Leadership, 24, 92–103.