School District Prevails in an ABA Case Involving New Requirement that IEP Be Based Upon "Peer-Reviewed" Research

In a due process hearing before the Office of Administrative Hearings, KMTG education attorney, Marcy L. Gutierrez, effectively represented a local school district’s multidisciplinary “eclectic” approach to educating a young child with autism spectrum disorder (“ASD”).

The case involved a dispute about the appropriate educational program for a kindergarten-aged child with ASD. While the parents requested the district to contract with a nonpublic agency provider of Applied Behavior Analysis (“ABA”) to provide the child with a 1:1 aide and monthly supervision, the district offered to provide a 1:1 aide employed by the district and monthly supervision by a district school psychologist. Although on the surface the dispute involved the identity of the 1:1 aide and program supervisor, the dispute was essentially one of methodology, with the parent and their experts claiming that ABA is the only “peer-reviewed” research appropriate for students with ASD, and that the district’s multi-disciplinary “eclectic” approach was not based upon “peer-reviewed” research and was not FAPE for their child. The district’s case rested heavily on the quality of its staff, as well as the testimony of two independent experts who defended the district’s program, citing research from the National Research Council’s publication “Educating Children With Autism” (2001) to support the “eclectic” approach. Fortunately, the Administrative Law Judge sided with the district, finding that the district’s IEP was based upon “peer-reviewed” research to the extent practicable and that the “eclectic” approach was FAPE.

This case is surely significant for many districts, who strive to provide appropriate programs for young children with ASD, many whom may provide multidisciplinary programs.