Connecticut Education Law Blog : Connecticut Education Lawyer & Attorney : Berchem, Moses & Devlin Law Firm : CT Public Schools

The AG's Office report characterizes option 1 as providing "the greatest protection for schools and parents" by requiring state licensing, while option 2 provides "some state agency enforcement authority", and option 3 establishes "minimum education credentials" and provides "significant discretionary responsibility to local boards of education".

The report acknowledges that school psychologists and social workers "may include applied behavior analysis in their services" within their scope of practice, a notable departure from the original reports suggesting that in order to provides behavior analyst services, a professional was required to hold a certification from the Behavioral Analyst Certification Board (BACB) based in Florida.  The report also acknowledges that there is no "rational basis for creating separate standards for those who provide applied behavior analysis depending on whether the child has autism spectrum disorder".  As noted in the report, the state should not require specific licensure or certification when the professional is working within the educational program of a child with autism, but fail to require the same certification when the child has a different diagnosis, or is not yet diagnosed.

The AG's Office recommends that the Department of Education provide "additional certification or license requirements for those professionals who work in the schools so that they may be able to provide behavior analysis intervention in addition to their other professional services".  This suggests that the Department of Education will be called upon to develop a specific behavioral analysis certification or endorsement that could be obtained by teachers, psychologists, social workers, or speech and language pathologists to allow them to be qualified as behavior analysts within the school setting.

The report also states that any requirement for licensure or certification would require anywhere from 2 to 4 years to implement, given the need to develop the framework, infrastructure within the Department of Public Health or Education, and time for individuals to obtain the required education and credentials.

One option endorsed by the AG's Office is acceptance of the Board Certified Behavior Analyst (BCBA) certification by the BACB, which requires a minimum of a master's degree, 225 contact hours of university graduate coursework in behavioral analysis and 1500 hours of supervised experience.  This certification is already recognized, according to the report, in Florida, California, Texas, Pennsylvania, New York and Oklahoma, as well as within the Connecticut Department of Developmental Services Birth to Three program.  The report estimates that it would take 2 years to get enough individuals certified through this program to meet the demand in Connecticut, where there are currently 130 such individuals practicing.

Interestingly, the proposed legislation attached to the report suggests that if the Commissioner of Education determines there are insufficient personnel in the state to provide the services of behavior analysis either through existing certification or licensure, the Commissioner may authorize individuals with a "bachelor's degree in a related field" who have completed a minimum of nine credit hours of coursework from a course sequence approved by the BACB to perform the services in question.

According to the decision, the child in this case, T.Y., is a child with autism with resulting developmental and language delays.  He received special education services in a preschool program during the 2005-2006 school year, and at the annual review in the spring of 2006, a program was proposed for the 2006-2007 school year including a classroom with a 6:1:1 ratio of students, teachers, and paraprofessional staff.  Related services and a paraprofessional for "crisis management" were also proposed.  The IEP specified that the placement would be in "District 75", the city's special education district, but did not name a school.  A month after the IEP was prepared, the parents received a placement notice from the districts central placement office.  The parents visited the program and rejected it as unsuitable.  The district proposed an alternative location, but the parents rejected that school as well and unilaterally placed the child in a private special education program.  The parents claimed both that the program was substantively inappropriate and that it was procedurally inadequate because it failed to name a school or classroom in the IEP.

Citing US Department of Education commentary on their IDEA regulations that "the location of services in the context of an IEP generally refers to the type of environment that is the appropriate place for provision of the service", the court concluded that the IDEA reference to a "location" of service does not mean a specific school, but the "general environment of the overall program".

The court emphasized that the holding should not be read to mean that school districts may assign a child to a school that is not able to implement the IEP, but the failure to name a school in the IEP will not be a per se violation of IDEA.  The court also noted that it appeared the parents were seeking "veto power" over the placement decision rather than input, which the IDEA "clearly does not grant them".