“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.  

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.

Parents of Children Born in 2013: Next Steps in the Turning Five Marathon

Many of you are already leading the pack in the marathon that is the Turning Five process. Maybe you attended a turning five talk (or two) or battled the crowds at the special needs school fair. Perhaps you have completed or scheduled a neuropsychological assessment and toured a dozen or more schools. To take the tired marathon analogy further, you’ve hopefully learned to pace yourself.

But as 2017 races to close, it’s a good idea to get a handle on what’s still ahead.

First, if you are applying to special education private schools or a special program (ASD Nest, etc.) get those applications in as soon as you can. Many of the private schools and special programs have hard application deadlines of December 31st, and the ones with “rolling admissions” won’t have spots forever. If you are waiting for progress reports or a neuropsychological evaluation before you submit your child’s application—don’t. Even if your application is “incomplete” without some required document, unless the admission staff specifically tell you not to submit incomplete applications it’s usually better to send in what you have and indicate that a final report from Doctor Slowpoke or a quarterly progress report from Classroom Teacher Swamped is forthcoming.

Second, pay attention to the NYC Department of Education’s kindergarten process and make sure you are on top of cooperating fully.

In October, the NYC Department of Education’s Special Education Office sent out an important letter to parents of preschool children with IEPs who will be “turning 5” during the 2018 calendar year, and who are expected to enter kindergarten in September 2018. That letter explained that you should soon be receiving another letter from the Committee for Preschool Special Education (CPSE) notifying you that your child has been referred to the school-age program (CSE). It also explains that you are expected to participate in two parallel processes: 1. Applying to kindergarten by January 12, 2018; and 2. The kindergarten IEP process.

Even if you feel that your child’s needs could never be met in your local public school or that your child is not ready for kindergarten, you are still asked to apply for kindergarten through the regular Kindergarten Admissions application portal. While not mandatory, many of us who practice special education law believe that it demonstrates your willingness to be open-minded and cooperate with the process. Remember: kindergarten registration closes on January 12, 2018.

For the parallel kindergarten IEP process, you can expect a few things to occur. 1. You are encouraged by the DOE to attend a kindergarten orientation meeting for children with disabilities. Many of these meetings have already occurred, but there are a few more events scheduled for December. You do not need to RSVP for these events and the DOE does not (as far as we know) take attendance, although you can usually sign in at the school’s security desk. 2. You may be invited to an orientation meeting at your community school by your child’s CSE Review Team. These are the people who you will be working with you to create your child’s IEP. Try to attend this meeting if you are invited to one—but don’t be the squeaky wheel; just listen and learn what you can. 3. You will be contacted by the CSE Review Team to sign papers to give your consent to evaluations/observations of your child and to schedule a social history interview. Be diligent about cooperating with these requirements and use certified mail whenever you send any document to the DOE.

When all this is done… it’s time to wait. In the late winter/early spring you will begin to hear back from schools and programs you may have applied to, and the DOE should contact you to schedule your Turning Five IEP meeting. More on all that in a later blog post!

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For (much) more information about the Turning Five/Kindergarten transition process, please see Regina Skyer's 2015 book, How to Survive Turning Five: The Handbook for NYC Parents of Special Education Children. Advocates for Children has also recently released the 2018 update for their kindergarten transition publication: Turning 5: A Guide to the Transition from Preschool Special Education to Kindergarten. The NYC Department of Education also publishes an annual guide: Kindergarten: An Orientation Guide for Families of Students with Disabilities Entering Kindergarten in Fall, 2018.

Getting Ready for Your Annual IEP Meeting

By Regina Skyer

Today is officially the first day of spring, which means more sunshine, budding flowers, Passover and Easter Holidays, state tests, private school acceptances… and annual CSE/IEP review meetings. Here are some strategies for how to get ready for yours.

Scheduling your meeting. The responsibility to schedule and hold the annual CSE/IEP meeting lies solely with the school district if your child already has an IEP or if a parent has requested a meeting in writing and has proof of that request. This includes “turning five students” who are aging out of CPSE and into CSE. Parents do not have to contact their CSE to schedule a meeting, but they must fully cooperate and respond to notices sent by the district. You are entitled to five days advance notice of your review meeting. If you don’t receive proper notice, you can postpone the meeting.  

Get organized. I recommend parents create their own “CSE file.” Doing this the first year requires the most work. You can use an accordion folder or a big binder, whatever you prefer. Create the following sections and arrange the contents within these sections chronologically, with the most recent documents at the front:

• Prior IEPs, IFSPs
• Independent Evaluations: May include neuropsychological or psychoeducational evaluations and any other evaluations you had done.
• School District Observations and Evaluations: Make a request to receive copies of these in advance of the meeting so you can review them.
• School and Provider Progress Reports
• Relevant Medical Reports and Health Forms: May include regular school health form, developmental pediatrician report, specialist report, pediatrician medical form on busing or other medical needs.
• Correspondence: Printed copies of all emails, letters sent between yourself and school officials.
• Parent Notes: Your handwritten or typed notes from relevant phone conversations, classroom observations, school tours, etc.

Gather your people. As needed, arrange for independent evaluators, a family member or a friend to support you and take notes, and providers currently working with your child to attend the IEP meeting. Remember to give the team notice of anyone you plan to bring with you. Participants can also call in by phone or submit letters for the team to review and consider. If a child has a health issue that impacts on their education there is an option to have a physician member present at the IEP meeting, but you must make this request in writing 72 hours in advance. There are specific instances where we might recommend that your attorney attend, like when a child has been accepted to an approved private school, or if a parent is completely overwhelmed by the process.

Participate in the meeting. You will be asked to sign an attendance sheet and you must do this. This is not an agreement with the IEP or a placement/program recommendation. You will mostly be listening, but when you do speak, present an accurate picture of your child. If you submitted an independent evaluation, make sure that everyone on the team has reviewed it. If not, suggest that the group takes a few minutes to do so. Whatever happens, don’t be adversarial. Listen to the team’s position and ideas and then state yours. At all times you must be open to what the team recommends—but that doesn’t mean you have to accept their recommendation.

Document what happened. As soon as possible after the meeting, write up notes from the meeting. The more detail here the better. If you end up suing then these notes will be important in drafting the notice for your complaint and the hearing request.

Breathe, but be prepared. This is the most critical component. Every case is unique, and there is no singular formula for success. If you are a client at our firm your case manager and attorney will happily prepare you for your CSE review meeting the week before the actual meeting.  Call Ben in our office to arrange a time for this conversation.