Lighting Up Law Practice In Blue: The Autistic Client

  • By:Ron Payne
Ed. Note: This article was authored by Kimberly J. Byrd, Esq., who is a former partner of Payne Law, PLLC and mother of four wonderful children. She can be reached at kbyrd.jdwfu2013@gmail.com

No matter what specific legal issue initially brings them to a lawyer’s door, several areas of the law are impacted when an attorney represents an autistic client. As previously discussed (here), autism’s symptoms and severity vary widely from person to person. While one autistic client may be able to verbally communicate at the same level as a neurotypical client, another autistic client may be completely non-verbal. However, their verbal ability should not be viewed as an indication of their level of intelligence or ability to understand the legal issues they are facing. An attorney may need to primarily use written communication when communicating with a non-verbal autistic client or use assistive technology to do so. Each autistic client’s communicative abilities should be considered individually, and caution should be taken where any methods of assisted communication involve another person, due to issues of confidentiality and the potential for that other person to improperly influence the communication.

Further, it may be prudent for attorneys to meet with autistic clients in an environment with which they are familiar, rather than in the attorney’s office. An autistic client’s comfort level, both with their surroundings and with individuals, largely influences their ability to function. Therefore, depending on the severity of the autistic client’s symptoms, attorneys may need to adjust how and where they meet with the client by doing things such as meeting for a longer period of time, breaking longer meetings (i.e., trial preparation, etc.) into smaller segments, or meeting at the home of the autistic client.

Both for meeting with autistic clients and presenting autistic clients or witnesses in court, attorneys should be aware of mannerisms and behaviors they may exhibit which may require explanation. An autistic client’s “normal” behavior may include unusual mannerisms, “loud vocal tome, aloof body language, flat facial expressions, difficulty in making eye contact, repetitive behavior, and tactless statements.” A Legal Review of Autism   The commotion and new surroundings of a courtroom may overwhelm the senses of the autistic client or witness. In response to this sensory overload, they may stim in order to stave off a meltdown. “Stimming is often functionally beneficial to people with autism. It reduces the chaos they experience, chaos created by their heightened sensory sensitivity in “normal” environments, and allows them to concentrate on particular features of the environment . . . . A non-stimming autistic person may be more cosmetically normal, but able to function only at a lower level.” Against Normal Function. Persons participating in any court proceeding should be aware of the person’s autism so that their behavior is not seen as an indication of the truth of their words, but rather an expression of their struggle to function within the courtroom environment.

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Where the autistic client is a child, attorneys should pay special attention to the child’s educational environment. Low-income autistic children, though they may have an I.E.P. in place, may not be receiving sufficient services to enable them to later “pursue gainful employment or further educational opportunities.” How IDEA Fails Families Without Means. Further, low-income autistic children are more likely than other children to be “pushed out of public education through punitive discipline, sheer neglect, or other more subtle strategies. Low –income students of color with unidentified educational disabilities are disproportionately referred for prosecution in juvenile court.” Therefore, it would be prudent for attorneys involved in the representation of low-income students, particularly those students of color, in manifestation determination hearings under the IDEA and in juvenile delinquency proceedings to be aware of symptoms of autism.

Further, if the child is from a household in which the primary language spoken is not English, representation can be further complicated by the likelihood that the child’s parents may not understand their child’s educational records. “While the IDEA requires that notice and safeguards be provided in a parent’s native language and made accessible for non-readers, the law does not mandate that a child’s educational records and reports are translated into a parent’s native language or made accessible to parents who cannot read or have other communication deficits. Thus, most general education records, evaluations, and IEPs are not translated for parents or made accessible or explained to parents who cannot read English. Those families are effectively excluded from having meaningful involvement in the special education process for their children.” How IDEA Fails Families Without Means. Attorneys representing these children should have access to both medical professionals to whom clients may be referred for assessing whether they are autistic and to language translators who can assist parents in understanding their child’s educational situation.

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Health Care

Though many state and federal regulations have been implemented affecting coverage for autism treatments, there is still wide variability in the actual coverage of autism treatments due largely to the differential interpretation of these regulations from state to state and insurance company to insurance company. The most prominent point of contention in whether a particular treatment is covered is whether the treatment is deemed to be habilitive, or rehabilitive. Rehabilitive therapies, or those intended to “restore patients to their normal level of functionality in the aftermath of a traumatic event,” are typically covered by insurance. Autism in the US However, habilitive therapies, or those which imply “that the patient has been suffering from a structural condition since birth” and thus “there is no lost ability to restore” are typically not covered. Autism in the US In addition to becoming familiar with autism treatments and whether they would be categorized as rehabilitive or habilitive for the purposes of health insurance, attorneys representing autistic clients should also become familiar with public benefit programs such as Medicaid. Though these programs vary from state to state in their application to autistic persons and specific treatments, an autistic client may be eligible for coverage under Medicaid’s Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) program, if they are a child, or Medicaid’s Home and Community Based Services waivers. Autism in the US

Income through Disability and Private Trusts

A primary concern of the families of autistic persons is planning for their future. The level of daily care an autistic person requires, their ability to live independently, and provision of an income are all considerations which must be taken into account. “A parent, spouse or other relative or third party who leaves [an autistic] individual his or her assets outright by will or living trust may jeopardize the [autistic] individual’s eligibility to receive public benefits.” Trusts for the Benefit of Disabled Persons When representing an autistic client or the family of an autistic person who is planning for their long-term care, attorneys must both understand the laws governing public benefit programs, such as Medicaid and SSI, and federal and state laws impacting private trusts. Where a family has resources to do so, a private special needs trust or supplemental benefits trust is often implemented to supplement the public benefits an autistic person is eligible to receive. However, these trusts must be carefully drafted to preserve the autistic person’s eligibility to receive benefits from “means-tested government benefits programs” such as Medicaid and SSI. Trusts for the Benefit of Disabled Persons

When properly drafted, a special needs or supplemental benefits trust can provide for an autistic person’s “special needs” and “supplement public benefits” without placing the person’s eligibility for such benefits in jeopardy. The “availability of trust assets to the [autistic] beneficiary will determine whether his or her eligibility for public benefits programs is compromised.” Trusts for the Benefit of Disabled Persons Where the autistic person has no ability to control when a distribution is made from the trust in question and no ability to liquidate property held by the trust, the trust assets are not considered in determining their eligibility for programs such as Medicaid. However, if an autistic person has the ability to compel a distribution from the trust, the trust’s assets may be considered in determining such eligibility.

Further, an autistic person could be disqualified from receiving government benefits if, under a special needs or supplemental benefits trust, “the trustee’s discretion to use trust assets for the [autistic] beneficiary is not sufficiently limited or the trustee uses trust assets to purchase too many countable resources or provide the beneficiary with too much income or in-kind income.” Trusts for the Benefit of Disabled Persons Some resources of the autistic person are be excluded from consideration in determining their eligibility, such as their principal residence. However, even when properly drafted, if a special needs or supplemental benefits trust purchases a non-exempt resource on behalf of an autistic person, this can adversely affect their eligibility for public benefits programs. Therefore, “[e]very purchase of an asset must be considered carefully to determine its effect.” Trusts for the Benefit of Disabled Persons

The distinction between a special needs trust and a supplemental benefits trust rests in ownership of the assets used to fund the trust.

[box] “Special needs trusts are sometimes referred to as (d)(4)(A) or payback trusts because the federal authority for them is found at 42 U.S.C. Section 1396p(d)(4)(A) and contains a payback condition. . . . [which] requires that although funded with the [autistic] person’s assets, the trust must be established by the [autistic] person’s parent, grandparent, or legal guardian, or by a court; the [autistic] individual may not be the grantor. . . . [and] in order for the trust assets to be disregarded in determining public benefits eligibility: 1) the beneficiary must be under age 65 when the trust is established and funded; 2) the beneficiary must be disabled; and 3) the trust must provide that upon the death of the beneficiary any state agency that has provided Medicaid benefits . . . must be reimbursed out of the trust up to the amount of benefits provided during the existence of the trust.” Trusts for the Benefit of Disabled Persons [/box]

[box]  A supplemental benefits trust is a private matter between a grantor, beneficiary, and trustee. It is “[a]n irrevocable trust funded with the assets of a third party for the benefit of a disabled individual [that] is not a special needs trust subject to the federal requirements of 42 U.S.C. Section 1396p(d)(4)(A) . . . and [in which] the trust assets and income are unavailable to the disabled beneficiary and are an excludable resource for Medicaid because a trustee other than the disabled beneficiary has sole discretion to disburse funds and the disabled beneficiary cannot compel a distribution.” Trusts for the Benefit of Disabled Persons  [/box]

Further, where the parents of an autistic person are establishing a special needs or supplemental benefits trust for their child and they are themselves elderly, an attorney must consider how the establishment of such a trust will impact the parents’ own eligibility to receive governmental benefits. “Elderly parents concerned about Medicaid or other means-tested public benefits to cover the future costs of their own custodial care, may transfer their assets to protect them; however, such a transfer may compromise their own eligibility for a period of time. An exception exists, however, for parents who transfer their assets to supplemental benefits trusts created for the sole benefit of their disabled child.” Trusts for the Benefit of Disabled Persons Therefore, in this situation, an attorney must consider both the interests of the parents who are establishing the trust and the autistic person for whose benefit the trust is being established prior to drafting trust documents.

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Over the month of April, we will be blogging about several areas of the law and how the law affects, and is affected by, those with autism. We invite you to visit our website, like us on Facebook, follow us on Twitter, and read and share our blog as we do our part to raise autism awareness.

   Join us as we Light Up the Law In Blue.

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