A legal review of autism, a syndrome rapidly gaining wide attention within our society.

• Author: Cohen, Jeffrey A.

1. INTRODUCTION

   The word autism is derived from the Greek word "autos" which means "self" and describes conditions in which a person is removed from social interaction, that is, an isolated self. (1) Unlike many other brain disorders, Autism Spectrum Disorder ("ASD") "does not appear to be a clear unifying mechanism at either the molecular, cellular or systems level." (2) "Because autism is characterized by groups of symptoms and signs even in its narrowest conception, it is a highly variable neurodevelopmental syndrome and not a unitary condition." (3) Thus, the saying goes that if you have met one person with an ASD, you have only met one person with an ASD.

   In this article we shall discuss ASD diagnosis and treatment, developments in State autism insurance programs, and a variety of litigation issues arising from the education of ASD students including the provision of a free and appropriate education, unlawful transfer policies, denial of tuition reimbursements, limitations of Applied Behavioral Analysis ("ABA") therapy, confinement in the "Autism Intervention Room," and bullies in the classroom. (4) In addition, we will examine tort litigation involving vaccine design defects, premature deliveries and low birth weight as a possible cause of autism, and failing to warn of the violent behavior of ASD students. (5) We shall also discuss guardianship and the least restrictive means doctrine, maintaining control and the need for periodic review. (6) We shall also discuss family law issues including the relocation of the parent with sole custody and what is in the best interests of the ASD child including the availability of services and extended placement. (7) We shall also discuss criminal law issues involving the perceived anti-social behavior of persons with ASD and how to establish intent and guilt. (8) Finally, we shall discuss violence in the home directed towards ASD children. (9)

   Public Awareness

   In 2007, the United Nations General Assembly passed a resolution declaring April 2 "World Autism Awareness Day." (10) In 2011, President Obama followed suit, declaring that each April 2 would be World Autism Awareness day in the United States and stressing that "autism is an urgent public health issue with a profound impact on millions of Americans." (11) Thereafter, numerous state governors and local officials proclaimed April as Autism Awareness Month, publicly recognizing the individual and unique needs of those with developmental disabilities. (12) In 2013, President Obama commemorated World Autism Awareness Day by announcing the launch of a $100 million Brain Research through Advancing Innovative Neurotechnologies ("BRAIN") Initiative "designed to revolutionize our understanding of the human brain" and "to help researchers find new ways to treat, cure, and [potentially] prevent brain disorders, such as[, inter alia, autism]." (13)

   Societal Costs

   ASDs impose enormous financial and personal burdens not only on the families of an ASD individual, but also on society as a whole. (14) The financial costs to families and service agencies for providing the appropriate multi-faceted treatments, interventions, and services are significant, and because of the pervasive nature of the disorder, these costs are often required in some form during the ASD individual's lifetime. (15) Yet, the costs to society for not providing treatment are even greater. An ASD is a lifelong condition: "Assuming prevalence stays flat in the future, the population of adults with autism is expected to rise 625 percent by the year 2030 (compared to 2010)." (16) According to the United States Department of Labor, the labor force participation rate for individuals with disabilities is only 20.5 percent. (17)

   The impact of ASD will be increasingly realized by society as ASD individuals mature out of infancy, as "[t]he substantial costs resulting from adult care and lost productivity of both individuals with autism and their parents have important implications for those aging members of the baby boom generation approaching retirement." (18)

2. DIAGNOSIS AND TREATMENT

   ASD is a range of complex neurodevelopment disorders, characterized by social impairments, communication difficulties, and restricted, repetitive, and stereotyped patterns of behavior. (19) Autistic disorder, sometimes called autism, is on the most severe end of the "spectrum." (20) In these severe cases, the individual may not interact with others, lack the ability to speak, or treat people as objects. (21) Milder conditions along the spectrum include Asperger's Syndrome, childhood disintegrative disorder, and pervasive developmental disorder not otherwise specified (usually referred to as "PDD-NOS"). (22) These cases may involve some difficulty understanding and relating to others, and trouble understanding other people's perspectives and emotions. (23)

   While some individuals with diagnoses within the autism spectrum have excelled in visual skills, sciences, mathematics, and the arts, (24) others, and perhaps the same individuals, have been associated with, inter alia, cognitive disabilities, difficulties in fine motor skills, attention deficit disorders, may suffer from mental health problems such as anxiety and depression, as well as physical health issues such as insomnia and gastrointestinal and digestive problems. (25)

   ASDs vary significantly in character and severity, occur in all ethnic and socioeconomic groups, and affect every age group. (26) In 2006 the Centers for Disease Control and Prevention ("CDC") released data indicating that approximately one in 110 children in the United States had an ASD. (27) Just two years later, the CDC updated its estimates finding that one in 88 children in the United States had an ASD (one in 54 boys and one in 252 girls). (28) This rapid increase in prevalence rates has intensified the need for a unified societal approach to this disorder. According to the CDC, "[t]he reasons for the increase in the identified prevalence of ASDs are not understood completely [, while] [s]ome of the increase is due to the way children are identified, diagnosed, and served in their local communities ... reported increases are explained partly by greater awareness by doctors, teachers, and parents." (29)

   There is not yet a biological test that provides for a precise diagnosis of an ASD. (30) Rather, a formal diagnosis is currently based on descriptions and observations of behavior by a specialist, such as an experienced psychiatrist, psychologist, neurologist, or developmental pediatrician, or a team of specialists. (31) Accordingly, diagnostic assessment is both complex and expensive. (32) In addition, even those who can afford the overwhelming cost of formal diagnosis face obstacles in detecting ASDs early enough to provide effective intervention. (33) Because the hallmarks of ASDs include social impairments, communication difficulties, and restricted, repetitive, and stereotyped patterns of behavior, the most obvious signs and symptoms of an ASD only start to become apparent between two and three years of age. (34)

   The core symptoms of an ASD can be treated, and the ASD individual can benefit from therapies such as sensory integrations, speech therapy, occupational therapy, physical therapy, and auditory interventions. (35) One key behavior therapy, recognized as beneficial for individuals with ASDs, is Applied Behavior Analysis ("ABA"). (36) In ABA, certain techniques and principles are used to bring positive changes in behavior in children with Autism and other related developmental disorders. (37)

   Although outcomes are variable and specific behavioral characteristics change over time, most children with ASDs remain within the spectrum as adults and, regardless of their intellectual functioning, continue to experience problems with independent living, employment, social relationships, and mental health. The primary goals of treatment are to minimize the core features and associated deficits, maximize functional independence and quality of life, and alleviate family distress. Facilitating development and learning, promoting socialization, reducing maladaptive behaviors, and educating and supporting families can help accomplish these goals. Ideally, interventions should help mitigate the core features of ASDs, which include impairment in social reciprocity, deficits in communication, and restricted, repetitive behavioral repertoire. (38) III. INSURANCE DEVELOPMENTS

   Enacted by Congress in March 2010, the Patient Protection and Affordable Care Act (39"ACA") was intended to "increase the number of Americans covered by health insurance and decrease the cost of health care." (40) A key provision of the ACA is the mandate that requires most Americans to maintain "minimum essential" health insurance coverage. (41)

   Health Care Exchanges

   ACA aimed to increase access to health insurance through an expansion of Medicaid and private insurance, and in order to facilitate the selection of health insurance plans, ACA created "Health Benefit Exchanges." (42) Each exchange, initially scheduled for implementation on January 1, 2014--now postponed to January 1, 2015 (43)--provides a marketplace for "qualified health plans" offering an "essential health benefits" ("EHB") package in the individual and small business insurance market. (44) Included among the ten general categories of EHB was "[m]ental health and substance use disorder services, including behavioral health treatment." (45) In December 2011, the United States Department of Health and Human Services ("HHS") issued guidance on ACA, stating that each state could determine which "essential health benefits" must be provided in policies sold through the state's exchange, giving each state the discretion to select a benchmark plan based on options currently offered in the state, which all insurers would then be required to match. (46)

   New York's Health Care Exchange

   On April 12, 2012, the State of New...