ASAN Statement Regarding the Newtown Shootings

I have a lot of disability-law related news to report from this past week, and I'm sure I'll post it tomorrow, but I'm still sufficiently shocked and saddened by yesterday's events in Connecticut that I can't really bring myself to do it today.  Twenty kids killed -- and little kids at that.  It crushes the heart. So all I'll post today is this statement that my friends at the Autistic Self Advocacy Network put out regarding the shootings:

In response to recent media reports that the perpetrator of today’s shooting in Newton, Connecticut may have been diagnosed on the autism spectrum or with a psychiatric disability, the Autistic Self Advocacy Network (ASAN) issued the following statement today: 

“Our hearts go out to the victims of today’s shooting massacre at Sandy Hook Elementary School in Newton, Connecticut and their families. Recent media reports have suggested that the perpetrator of this violence, Adam Lanza, may have been diagnosed with Asperger’s Syndrome, a diagnosis on the autism spectrum, or with another psychiatric disability. In either event, it is imperative that as we mourn the victims of this horrific tragedy that commentators and the media avoid drawing inappropriate and unfounded links between autism or other disabilities and violence. Autistic Americans and individuals with other disabilities are no more likely to commit violent crime than non-disabled people. In fact, people with disabilities of all kinds, including autism, are vastly more likely to be the victims of violent crime than the perpetrators. Should the shooter in today’s shooting prove to in fact be diagnosed on the autism spectrum or with another disability, the millions of Americans with disabilities should be no more implicated in his actions than the non-disabled population is responsible for those of non-disabled shooters. 

"Today’s violence was the act of an individual. We urge media, government and community leaders to speak out against any effort to spuriously link the Autistic or broader disability community with violent crime. Autistic Americans and other groups of people with disabilities persist in facing discrimination and segregation in school, the workplace and the general community. In this terrible time, our society should not further stigmatize our community. As our great nation has so many times in the past, let us come together to both mourn those killed by acts of heinous murder and defend all parts of our country from the scourge of stigma and prejudice.” 

Media inquiries regarding this shooting may be directed to ASAN at info@autisticadvocacy.org.

Kirkland on Credibility Battles in Autism Litigation

New on SSRN: Anna Kirkland, Credibility Battles in the Autism Litigation, 42 Soc. Studs. of Science 237 (2012).  The abstract:

That vaccines do not cause autism is now a widely accepted proposition, though a few dissenters remain. An eight-year court process in the U.S. federal vaccine injury compensation court just ended in 2010 with rulings that autism was not an adverse reaction to vaccination. There were two sets of trials, one against the measles-mumps-rubella (MMR) vaccine and one against the mercury-based preservative thimerosal. The MMR story is more widely known because of publicity surrounding the main proponent of an MMR-autism link, British doctor Andrew Wakefield, but the story of thimerosal in court is largely untold. This study examines the credibility battles and boundary work in the two cases, illuminating the sustaining world of alternative science that supported the parents, lawyers, researchers, and expert witnesses against vaccines. After the loss in court, the families and their advocates transformed their scientific arguments into an indictment of procedural injustice in the vaccine court. I argue that the very efforts designed to produce legitimacy in this type of lopsided dispute will be counter-mobilized as evidence of injustice, helping us understand why settling a scientific controversy in court does not necessarily mean changing anyone’s mind.

Federal Bankruptcy Court Discharges Student Loan Debt Because of Supposedly Debilitating Nature of Asperger's Syndrome

Via the terrific Weirdlaw blog comes word of this case in which Judge Robert A. Gordon of the United States Bankruptcy Court for the District of Maryland issued a ruling discharging the student loan debt of a woman with Asperger's Syndrome.  As Weirdlaw comments:

I can’t quarrel with the overall outcome. This woman had amassed over $300,000 in student loan debt that she couldn’t possibly repay. She had started amassing the debt pursuant to her Rehabilitation Plan at 39, having never held a long-term job in her entire life. While education is often helpful, it’s unclear why Rehab Sevices would encourage a woman who’d never held a job in her life to go to law school, a profession that has a remarkably poor employment rate and high debt load, then drop out of law school and get a masters degree from some random place and then a PhD from an unaccredited online university, is just beyond me. All of these seemed practically calculated to saddle this woman with high student loan debt in return for utterly worthless degrees and no prospect for post-graduation employment. And, indeed, the debtor had not gotten a single job despite getting a Masters and a “PhD.” This is student loan abuse and ANYONE in a similar situation should have their student debt forgiven. 

In addition, it appears that Ms. Todd lost many of the supports that had made her few past employment experiences possible. Despite having a significant disability that made it difficult to live independently, she received no housing support, no vocational supports beyond funneling her into overpriced educational programs, and no independent living supports. She was basically set up to fail.

That said, the opinion itself focused less on the inequitable actions of the lenders and rehab people, and more on how her “eerie disconnectedness from a comprehensive life experience” as a result of her “incurable ailment,” i.e. autism.

Click on the links above to see just how ignorant and offensive were the comments of the bankruptcy judge -- and even the debtor's own doctor and expert witness! -- regarding the effects of Asperger's.

Eighth Circuit Denies IDEA Reimbursement for "Home-Based Program"

Last Friday, the United States Court of Appeals for the Eighth Circuit issued its opinion in T.B. v. St. Joseph School District.  The case was an IDEA reimbursement action with a twist: Rather than enrolling their child in a private school when they were dissatisfied with the individualized education plan the school district offered, the parents here withdrew their child (who has autism) from school and enrolled him in a "home-based program."  The home-based program at issue was provided pursuant to a Medicaid waiver obtained by the Missouri Department of Mental Health.  According to the Eighth Circuit, it provided "personal assistance, day habilitation, transportation, environmental accessibility adaptation, respite care, and behavior therapy."  The school district refused to pay for the program (though I'm not sure why the parents had any out-of-pocket costs if the program was funded through Medicaid).  The parents filed an administrative complaint.  Although the administrative review panel concluded that the district had "violated the IDEA by failing to conduct a triennial re-evaluation of T.B., as required by 20 U.S.C. § 1414(a)(2), and by failing to inform the parents in writing of its intent not to conduct such evaluation," it nonetheless "denied the parents' request for reimbursement on the ground T.B.'s home-based program was 'woefully inadequate' and the parents had failed to prove they actually paid for the costs associated with it."  The parents sought review in the district court, which concluded that the district had not violated the IDEA and that T.B.'s parents had in any event "failed to show what expenses for the home-based program, if any, they had actually incurred."

The Eighth Circuit affirmed the denial of reimbursement.  The court assumed arguendo that the school district had violated the IDEA.  But it concluded that "the parents are still not entitled to reimbursement as they cannot show the home-based program is 'proper' under the IDEA," because it was not reasonably calculated to enable T.B. to receive educational benefits.  The court explained:

Consistent with the services provided through the waiver, the record further shows T.B. engaged in the following types of activities for the duration of his home-based program: daily living, community access, money management, protective oversight, and exercise. See Appellee's App. at 391-417 (providing copies of T.B.'s daily activity log sheets). For example, T.B. worked on answering social questions like "What's your address?", "What's your phone number?", and "What's your name?" He also worked on developing basic social skills by learning how to make eye contact, respond to questions in simple conversations, wait in line at the store, order from a menu, and play games with others. The program further focused on teaching T.B. the proper sequence for certain household and daily activities, such as doing laundry, making popcorn, or brushing his teeth.

To be sure, the record does indicate the program provided some educational services, including math, reading, and listening comprehension. These educational services, however, were often secondary to the teaching of social and behavior skills. Math, for example, was included as part of learning how to wait in line and place an order or as part of the money management lessons. Spelling and vocabulary expansion were done on the way to a social activity. Thus, while the home-based program may have offered some activities to help supplement T.B.'s educational needs, these activities were in no way intended to supplant the educational services available to him through the School District. In fact, the Lopez waiver specifically provides that the services available through the program "may not duplicate or replace special education-related services, which otherwise are available to the child through a state and local agency." Hr'g Tr., Nov. 9, 2009, at 141.

This is an odd fact pattern in a lot of ways.  I'm still having trouble understanding what the out-of-pocket cost to the parents was here.  And nobody could reasonably think that Medicaid waiver services like these are designed to supplant or fully substitute for special education services.  Nonetheless, this case continues the trend (now in a published appellate opinion) of courts carefully examining the alternative placement before granting tuition reimbursement under the IDEA.

California Agency Ripped Over Disparities in Autism Spending

See this article by that title in the LA Times.  It begins:

California lawmakers and advocates for children with autism assailed the state Department of Developmental Services during a hearing Monday over the deep racial and ethnic disparities in how it spends money on the disorder. 

"Families that are already the most disadvantaged get the least," Martha Matthews, an attorney for the advocacy group Public Counsel, testified before a panel of legislators in Sacramento. "This is exactly the opposite of what it should be." 

State Sen. Darrell Steinberg, who heads a committee on autism, called for legislation to provide greater accountability in the $4-billion-a-year entitlement program for people with developmental disabilities. Autism now accounts for about a quarter of the 252,000 people in the state system and 45% of all new disability cases it accepts. Budgets have not kept pace.

Barry on Autism and the Social Model of Disability

Just out: Kevin Barry, Gray Matters: Autism, Impairment, and the End of Binaries, 49 San Diego L. Rev. 161 (2012).  From the introduction:

The medical-versus-social model binary is therefore a poor way of distinguishing between autism's factions. Far from distinguishing the two sides in the autism debate, the medical-versus-social model binary suggests that both parents and the neurodiverse seek the same thing: an end to disability, albeit through very different means. Furthermore, although the two sides clash over the pursuit of cures and certain treatments for autism, those policy choices are dependent on moral frameworks--not disability's dueling models of causation. And lastly, although both models of disability agree that impairment is inevitable, this turns out to be precisely what parents and the neurodiverse do not agree about. 

The real fight within the autism community has to do with autism's essence, but the hard-and-fast distinction between impairment's biological core and people's experience of impairment is illusory. Given the recent amendments to the definition of disability under the ADA, which defines disability as an “impairment that substantially limits one or more major life activities,” the meaning of impairment is now more salient than ever.  

A recent second wave of disabilities studies suggests that impairment, like disability, is constructed by the social practices and institutions that name and diagnose it. This is true so far as it goes, but the autism debate suggests another way that impairment is constructed: it is constructed not only by those who name it but also by those who are named--autistic people, themselves. The neurodiversity movement, which claims autism as a way of being, is neither quaint nor quackery. It underscores that part of autism is the experience of those who are classified as having autism and who are changed by being so classified. For them, autism is a part of their being, not--or not only--some as of yet unknown biological pathology. Moreover, by adapting to, resisting, and transforming the social practices and institutions that classify them, autistic people change autism.  Autism, like other impairments, is therefore not fixed; its meaning is evolving as the group denoted by the diagnosis changes. 

Although many legal scholars have articulated the distinction between the social and medical models of disability and between impairment and disability, few have scrutinized the assumptions upon which these binaries are based. That is the purpose of this Article. Using autism as a case study, this Article attempts to show that the oft-claimed binary between the social model of disability (which holds that disability is socially constructed) and the medical model of disability (which holds that it is not) is not as stark as it is often made out to be, and that impairment is not solely biological but instead socially constructed, in part, by those who are diagnosed. Although these conclusions do not make peace between autism's dueling sides, they help to explain how the sides disagree “and why, perhaps, the twain shall never meet.”

Although this piece participates in the unfortunate academic trend of using "binary" as a noun, I think it's nonetheless an incredibly engaging treatment of an important set of topics. Much recommended!