This summer was a tough as I have ever seen it in special education. Districts and Regional Centers were reeling from the fall out of the budget. The question seemed to be “Where to cut when we have already cut so much and we never had enough to start with.”

Among a hierarchy of concerns, one at the top of the list was how to deal with changes in the Lanterman Act that govern the provision of behavioral services, the most troubling of which were provisions requiring regional centers to use the least costly of comparable vendors to provide a ABA services (§ 4648, new subd. (a)(6)(D)); and disallowing Regional Center to pay for educational services. §4648.5(a)(3)

At the same time, however, the Legislature added other language that demonstrates its ongoing commitment to intensive behavior services: “It is the intent of the Legislature to ensure the well-being of consumers, taking into account their informed and expressed choices. It is further the intent of the Legislature to support the satisfaction and success of consumers through the delivery of quality services and supports.” (§ 4570, new subd. (l), & new § 4571, subd. (a).)

Significantly, when necessary to maximize a disabled person’s potential, newly enacted section 4686.2 explicitly authorizes regional centers to purchase comprehensive ABA services for up to, but no more than, 40 hours per week. (Subd. (d)(2).)

Accordingly, notwithstanding the current fiscal crisis and cost- cutting measures, the Legislature remains committed to providing 40 ABA hours per week to the few autistic children who need them.

Therefore, we believe it can be argued that, notwithstanding the cuts, intensive ABA (up to 40 weekly hours) is still a service that Regional Centers have to provide under the Lanterman Act.

Furthermore, we do not believe that the provision concerning educational services precludes a Regional Center from providing behavioral services at a school setting. Notwithstanding, a possible Regional Center contention to the contrary, the Legislature does not think ABA is an educational service.

Subdivision (b) of section 4648.5 provides that the foregoing prohibition “shall take effect on August 1, 2009.”Yet the urgency bill containing section 4648.5 also enacted subdivision (c) of section 4686.2, which applies a host of new restrictions to ABA service purchases “on August 1, 2009.” This would have been entirely pointless if the Legislature regarded ABA as an “educational service” suspended on that very same date.

In any event, a long line of OAH precedent establishes that ABA is not an educational service, for example, Justin C., supra, OAH 2003070446, leg. conc. ¶ 13(B) & (C) (opn. of Montoya, A.L.J.), holding as follows:

Even if ABA were “educational services” for purposes of section 4648.5’s temporary prohibition, subdivision (c) of that code section creates an exemption from the prohibition “in extraordinary circumstances . . . when . . . the service is a primary or critical means for ameliorating the physical, cognitive, or psychosocial effects of the consumer’s developmental
disability . . . .”

None of this is meant to suggest that it has not gotten harder to obtain what was already difficult. But it does suggest that if we can educate regional centers and administrative law judges as to what the new legislation means, our kids still have a chance of obtaining these very valuable services.

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