ABA services and the NYC DOE: securing, defending, and recovering ABA

The legal foundation

Under IDEA, a child with autism is entitled to a program reasonably calculated to enable progress in light of the child's circumstances. When that requires intensive behavioral support, the IEP or IESP must reflect it, with sufficient hours, qualified providers such as BCBAs, and real implementation. A program on paper that is never delivered is a denial of FAPE, and New York hearing officers can order both prospective services and compensatory hours.

Can ABA services be included on an IEP in New York City?

Yes. Despite what some families are told, Applied Behavior Analysis can be recommended on an IEP, including 1:1 instruction, push in ABA support at school, and home based ABA hours. Statements that ABA cannot be placed on an IEP, that an IEP cannot include home based services, or that 1:1 teaching is unavailable are inaccurate, and families who push back with representation routinely secure these services.

What can I do if the NYC DOE denied my child ABA services?

A denial of needed ABA can be a denial of FAPE under IDEA. Parents can file a due process complaint and pursue the services through an impartial hearing. Relief can include ABA written into the program going forward, funding for private ABA providers at appropriate rates, and compensatory services to make up for what was missed.

What are compensatory ABA services?

When a district fails to deliver services a child was legally entitled to receive, the law requires make up services, called compensatory education. For children with autism this often takes the form of a bank of compensatory ABA hours delivered by a qualified provider, ordered by a hearing officer or agreed in settlement.

What is an IESP and who gets one?

An Individualized Education Services Program governs the special education services, such as SETSS and related services, that a student receives while attending a nonpublic or religious school, or while being homeschooled. New York State law gives these students an individual right to services even though they are not enrolled in public school.

What is the June 1 deadline for IESP services?

New York law requires parents to request equitable services in writing by June 1 before the school year in which services are sought. In recent years strict enforcement of this deadline has cut off services for many families. Missing the deadline is serious but not always the end of the road, and compensatory claims may exist where the district failed in its own obligations.

What if no provider will accept the DOE rate for my child's services?

When a child has a mandate but the standard rate cannot secure a qualified provider, families can seek enhanced rates or pursue the services through a due process complaint so the district funds a provider who can actually deliver the mandate. Unimplemented mandates are themselves a denial of FAPE.

Do I need a lawyer to get ABA services from the DOE?

Families with representation get materially better results in this area because the claims turn on evaluations, behavior data, mandate history, and hearing practice. Under IDEA, parents who prevail can recover reasonable attorney fees from the district, so strong cases are often handled at no net cost to the family.

How SixOneThree approaches these cases

We review evaluations, behavior plans, and the mandate history to quantify exactly what a child needs and what was missed, then pursue it through negotiation or an impartial hearing. We also handle IESP fee litigation so the providers actually delivering services are paid at rates that keep qualified people on a child's case. As a boutique practice we take a limited docket and explain every step in plain language.

This page is general information, not legal advice, and reading it does not create an attorney client relationship.