U.S. Department of Education Requires Ohio to Make ABA Therapy Available as an Early Intervention Service Under IDEA Part C

U.S. Department of Education Letter Requiring ABA to be Made Available

On September 5, 2013, the Office of Special Education Programs (OSEP) advised the director of the Ohio Department of Health (ODH) that the state must make Applied Behavioral Analysis (ABA) available as an early intervention service to any child considered a good candidate for that particular treatment. OSEP is requiring ODH to submit a written statement that it will make ABA available to children identified as appropriate recipients of the therapy, and to send a memorandum to all early intervention service programs to inform them of this requirement. The OSEP letter makes clear that there is no mandate to provide ABA services; however, ODH must include ABA therapy "in the non-exhaustive list of early intervention services that an IFSP can identify and the State will make available if identified as needed by the IFSP team under IDEA Part C."

Ongoing Litigation Involving Availability of ABA Through Help Me Grow

OSEP's letter comes in the midst of a federal court battle between parents of a boy with autism and the Clermont County Board of Developmental Disabilities (CCBDD), which administers the ODH's Help Me Grow (HMG) program. The parents filed a complaint on behalf of their then 2-year-old son to have CCBDD provide him with ABA and immediately sought a court order to force CCBDD to continue their son's private ABA program during the pendency of legal proceedings. Prior to the complaint, when the parents presented CCBDD with clinical recommendations that their son receive intensive ABA, CCBDD informed the parents that it does not provide ABA.

The court issued an order requiring CCBDD to develop a plan to provide the child with 40 hours of ABA per week based on a recommendation from the Cleveland Clinic Center for Autism. See Young v. State of Ohio, 113 LRP 2036 (S.D. Ohio 2013). The order is to remain in place until the child's third birthday, when he will move to IDEA Part B and the school district of residence will be responsible for providing services. OSEP indicated in its letter that it will continue to monitor this litigation.

Implications for School Districts

While the OSEP letter only refers to IDEA Part C, the provision of extensive ABA therapy through HMG has implications for students transitioning to IDEA Part B services. If a child receives 40 hours of ABA under Part C, parents are likely to request a continuation of this level of service as the child moves to Part B preschool services. If data from the child's early intervention ABA services demonstrates growth using this methodology, it may be difficult for districts to argue that a different methodology should be utilized when the child transitions to preschool.

Districts may also have difficulty arguing that a child who received 40 hours of ABA per week through HMG does not require this same level of support as a preschool student. This has implications for districts in terms of the length of the preschool program, staffing considerations, staff training and other logistical issues. Districts must also consider how to incorporate related services and other school activities that foster the development of social skills into the student's day.

If your district has questions about the recent OSEP letter or whether its policy and/or practices are sufficient under IDEA, please contract a member of Walter | Haverfield's Education Law Group.