Many children with an Autism Spectrum Disorder (ASD) diagnosis suffer from a lack of access to meaningful education. Meaningful access to education is a basic human right. Many school boards refuse to provide Applied Behaviour Analysis (ABA) in the classroom despite the research which demonstrates that evidence based ABA is an effective approach to teach students with ASD and other diagnoses.

As a result of school boards’ refusal to meet the needs of these children, parents are forced to advocate for their child’s rights which can lead to a legal battle. The litigation process puts an extra burden on these families. Not only is the process expensive, it can also impact parental emotional health and work performance. A daunting task for many parents is to know where to begin.

With the recent changes to the Ontario Autism Program, advocating for your child’s right to adequate accommodation in school may be more important than ever. However, many school boards fail to understand that many children with an ASD diagnosis cannot meaningfully access education without receiving evidence-based Applied Behaviour Analysis (ABA). School boards often believe that ABA is “therapeutic” and must be provided in a clinical setting. School boards in Ontario tend to argue that it is beyond their scope of responsibilities to provide such a “therapy” and thus are not responsible for providing evidence-based ABA as an in-school accommodation. It is these misconceptions which often prevent children with ASD from accessing education in schools.

Schools are supposed to teach children, but what happens when the schools are the ones who need the educating in order to understand what will allow students with an ASD diagnosis to effectively access their education? This article is intended to act as a guide for parents who are advocating for their child’s right to education. It is hoped that this guide will provide some tips for parents and ABA providers and alleviate the burdens created by the refusal to accommodate. This guide should not be considered legal advice; however, it may offer some general tips which may be helpful depending on the situation. Parents should consider seeking legal advice for their particular case and should not rely solely on this informational guide which may not be applicable to all cases.

1. What is ABA?

ABA is a method of presenting information in a way that allows children to learn specific skills and reduce problem behaviours. In other words, it is a way of teaching. ABA has been shown to be effective for children with an ASD diagnosis as well as other diagnoses such as learning disabilities, ADD/ADHD, and the general student.

The Behavior Analyst Certification Board’s (BACB) Practice Guidelines for Healthcare Funders and Managers defines ABA as a “well-developed scientific discipline among the helping professions that focuses on the analysis, design, implementation, and evaluation of social and other environmental modifications to produce meaningful changes in human behavior” (link). The defining features of ABA are: it is applied, behavioural, analytic, technological, conceptually systematic, effective and generalized (Baer, Wolf & Risley, 1968). If these defining characteristics of ABA are not present, then it is not ABA.

2. What does ABA look like?

ABA can look different depending on the needs of the child. New skills can be practiced in 1 to 1 settings, group settings, or in small peer groups. Those providing ABA can use different approaches to help the student master the skill or goal being worked on. For example, the ABA provider could use direct teaching methods, positive or negative reinforcement, task analysis (breaking tasks into small groups), and shaping, among many other techniques.

Two crucial components of ABA are data and analysis. It is these components which make it “evidence-based”. As the ABA provider (also referred to as an instructor therapist/behaviour technician/behaviour interventionist) uses different techniques while working with the student, he/she is also collecting data. This data is reviewed and analyzed by a Board Certified Behavior Analyst® (BCBA®). Analyzing the data can help explain how the child is doing and whether or not he/she is improving on the skill being worked on. The data explains things such as how/when the child engaged in a particular behaviour, what was required to modify that behaviour, how often the ABA provider needed to use a specific technique to assist the child, and whether the child is improving in his/her skill acquisition. The BCBA can analyze whether the student is improving and working towards mastering the skill independently or if changes to the techniques being used are required. The goal of any ABA program is to fade out the need for ABA as the child acquires and masters the skills being worked on.

Each student will have different needs and therefore will need to work on different goals. Some will only have a few goals to master. Such an ABA program would be referred to as “focused ABA”. Other children will need to work on several goals across multiple developmental domains. Such an ABA program would be referred to as “comprehensive ABA” (Ontario government autism programs formerly referred to this as IBI [Intensive Behaviour Intervention]).

3. Who provides ABA?

The data component of an ABA program is what makes it scientific. The data is evidence which objectively demonstrates whether a child is improving or not. As such, the data must be reliable and accurate. In order to collect such reliable and accurate data, training is required. The training is a minimal standard and is meant to be augmented through direct supervision provided by a BCBA with core competencies demonstrated and measured by the individual. The initial training consists of 40 hours of specific training following a prescribed course outline followed by practical experience overseen by a BCBA. If desired, one could acquire certification as a Registered Behavior Therapist™ (“RBT”™) but not all instructor/behaviour therapists pursue such certification.

BCBAs oversee RBTs/instructor therapists. BCBAs are bound to meet professional rules and standards as set out by the Behavior Analyst Certification Board. Regardless of where a BCBA works, he/she is required to abide by the Professional and Ethical Compliance Code (link). Some examples of these obligations include:

• BCBAs are to act in the best interests of their client (the child) even if there are other parties (i.e. school boards) involved (2.04);
• BCBAs are required to recommend and advocate for the child’s best interests regarding the most effective treatment (2.09);
• BCBAs must collect and analyze data in order to prepare recommendations/plans (3.01);
• BCBAs have an oversight role to ensure quality ABA is being provided (5); and
• BCBAs “do not implement non-behaviour-analytic interventions” (8.01(b)

**Many school boards have BCBAs on staff, sometimes referred to by different titles such as “ABA-Facilitator” or “ABA Consultant”. You can check if the person working in your board is in fact credentialed by searching the online database (link). If your child requires ABA at school, ask your school or Special Education Resource Teacher if there is anyone employed by the Board who has a BCBA qualification and request this person be involved in your child’s educational programming. You may consider asking the BCBA to confirm she/he understands the obligations under the Professional and Ethical Compliance Code and abides by the Code in their work.

4. How can front-line education staff benefit from ABA?

Many children with ASD exhibit behaviour problems which can put the safety of the child, staff and/or other children at risk as well as interfere with their learning and social skills. ABA can be useful in changing these problem behaviours with safe and appropriate behaviours. ABA works on identifying the causes of the problem behaviour and ways to eliminate or change it. As such, ABA can reduce the risk of problem, self-injurious and/or dangerous behaviour thereby allowing the student to remain in class.

Having ABA in the classroom can also help school boards improve the mental health of their staff, especially teachers and educational assistants who often bear the brunt of dangerous behaviours exhibited by students as well as for the other students within the classroom environment. Having ABA in the classroom can address the root causes of problem and dangerous behaviours. Addressing the root cause can enable teachers and staff to do their jobs in a safe environment as well as allow all the students within the classroom to learn within a safe and positive environment. This can in turn, decrease the need for staff to take time off from work to recover from injuries or for stress-related leaves.

5. How can ABA be implemented in schools?

Some parents report that schools will on occasion, quietly allow ABA providers into the school even where official policies are not in place. Some Boards openly allow private ABA providers into the school (See UGDSB protocol: link). Given that many boards have BCBA’s on staff; this means that school boards have the in-house expertise to monitor the delivery of evidence-based ABA which could be provided by a properly trained educational assistant. In some cases, boards may consider providing funding for students to attend a private school where they can receive evidence-based ABA.

6. Challenges parents face when advocating for their children

Advocating for your child’s education rights is challenging. If your child learns differently, it can be difficult to explain to the school board what your child needs.

School boards also appear to lack the desire to engage in creative solutions which will result in the best outcomes for their students. Often parents report that school boards will do only the bare minimum to avoid a legal proceeding. This is harmful to the children entrusted in their care.

Litigation is expensive and time consuming. That is why bakerlaw has put this guide together. For families who cannot afford to litigate against a school board, this guide can provide some helpful tips for advocating independently or in collaboration with your ABA provider for your child’s rights.

A recent client of ours experienced first-hand the challenges associated with legal proceedings. To read an account of his experience, click here (link).

7. How to Advocate for your Child

The first step is clearly communicating what your child needs. Children have a right to adequate (though not necessarily perfect) accommodation. ABA providers (e.g., BCBAs), medical practitioners, psychologists etc., can provide a report or explanation of what your child’s needs are and how they can be met in the school setting. It may be expensive to get these reports, but they provide the board with the necessary information required to provide appropriate accommodations. Therefore, these reports can be helpful to assist in your advocacy efforts.

Bakerlaw has been authorized to publish two such reports used in one of our cases. It is our hope that parents review these reports and share them with their child’s ABA providers. These reports relate to a specific case and should not be copied or duplicated in any way. Rather, we suggest reviewing the reports as one example of what your child’s health care professional could prepare in order to help you advocate for changes to the special education program in place for your child. For a report by Cathy White, B.A., B.Ed., M.Ed., click here (link). For a report by Dr. Julie Koudys, Clinical Psychologist, Ph.D., BCBA-D, click here (link).

Once the report pertaining to your child’s needs has been completed, share it with the school and request the accommodations recommended in the report. It is also important to note that you, as the parent, can request a meeting at the school and have anyone attend that meeting as you feel is necessary (i.e., BCBA, psychologist, medical practitioner, or any other professional or advocate).

Based on your child’s specific needs, you may want to request that the board’s BCBA be involved in designing the special education program for your child.

You may find it appropriate to request the school convene an Identification, Placement and Review Committee (IPRC) and/or prepare an Individual Education Plan (IEP).

An IPRC is a process where a committee is formed to review the needs of your child and recommend one of 6 placements. These placements could include regular classroom, regular classroom with withdrawal or a separate class, among other options. If you feel your child’s current placement is not appropriate, this process may assist in finding a more suitable placement. For more information click here (link).

An IEP is a legal document outlining the ways in which the school will modify or alter the teaching approach to help meet the needs of your child. Parents should take an active role in preparing the IEP and may want to consider advocating for ABA goals to be selected as part of the plan. For more information click here (link).

Regardless of how to initiate the communications, be prepared to engage in discussions with the school about what changes are being recommended in the report(s). You may want to consider asking your ABA provider and/or psychologists to attend any meeting with you. Consider documenting what takes place at the meeting by keeping thorough notes.

When the school proposes special education programming, you may want to review the proposal with the author of the report on your child’s needs to ensure quality changes which meet your child’s needs are being recommended. You should advocate for changes that are meaningful and appropriate based on your child’s needs as outlined in the report. As mentioned above, if your child needs ABA, ensure that the people involved are trained to provide it and select goals which are appropriate for your child. ABA requires ongoing monitoring, as such, you should advocate for the appropriate amount of BCBA supervision to ensure your child is progressing and to make changes to the plan as required.

8. The School is Still Refusing to Meet my Child’s Needs 

If communications with the school break down or if you are unsuccessful in informal negotiations, you may need to initiate a legal proceeding. Below is a brief explanation of some options you may consider pursuing.

Human Rights Tribunal of Ontario (HRTO):

Ontarians can apply to the HRTO in the event that they have experienced discrimination or harassment. The HRTO applies the Human Rights Code in its decisions. Parties to a dispute may elect to participate in Tribunal-led mediation prior to scheduling a hearing.

Recently, the HRTO has created the Child and Youth Division (CYD). The CYD deals exclusively with cases involving children and youth. Recognizing that discrimination against such applications is particularly concerning and often requires immediate redress, the CYD triages applications to either: normal, fast-tracked or urgent streams. Cases are case managed from an early stage which can help keep things on track. If you are applying regarding your child’s rights, you will be dealing with the CYD.
Parents should consider the limitation periods associated with initiating a proceeding at the HRTO (link).

Once you have filed an application, you could consider applying to the Human Rights Legal Support Centre (HRLSC). This is a legal clinic providing free assistance for applicants at the HRTO. The Centre does not accept all cases; however, as it offers free legal support in some cases, it may be worth applying.

The HRLSC also has a significant number of resources which may assist in preparing your HRTO application materials.

The following links may be useful:

HRTO Home Page (link)

HRTO Application and Hearing Process (link)

Human Rights Code (link)

HRTO Forms and Filing (link)

HRTO Child and Youth Division (CYD) (link)

Human Rights Legal Support Centre (link)

HRLSC Resources – FAQ: Human Rights Applications (link)

Child & Family Services Review Board:

The Child and Family Services Review Board (CFSRB) deals with cases under the Education Act. For example, if your child has been expelled from school without due consideration for their disability-related needs, you could apply to the CFSRB and ask for the school’s decision to be reviewed. In some cases it may be appropriate to apply to both the HRTO and the CFSRB.

Parents should consider the limitation periods associated with initiating a proceeding at the CRSFB (link).

The following links may be useful:

CFSRB Home Page (link)

CFSRB Application and Hearing Process (link)

Suspension and Expulsion Information (link)

ARCH Disability Law Centre Education Toolkit (exclusions) (link)

Education Act (link)

9. Need more help?

If you still feel at a loss, you may want to consider seeking some legal advice. Bakerlaw offers consultations for a small fee. Bakerlaw is limited in what cases it can take on at the present time, however, a consultation may provide you with some guidance and additional tips on enhancing and continuing your own advocacy efforts.

If you’d like to consider a consultation, you can read up about how it works here (link) or contact us at 416-533-0040 ext. 230 or info@bakerlaw.ca.

 

Know Your Rights!