12-06-2004, 11:46 AM
The defeated parents who had the ABA case in Canada are trying again.
Ontario parents to launch new autism lawsuit
There is a glimmer of hope for families with autistic children who were devastated by the Supreme Court's recent decision ruling that provinces are not obliged to fund treatments not covered by the Canada Health Act.
Canadian families with autistic children plan to announce a new legal challenge arguing that an expensive treatment is an educational necessity, not a medical one, experts say.
Now that the ruling has been announced, the door is open for a new lawsuit to be launched, one that could argue that Applied Behavioural Analysis should be funded by the educational system as it is in the United States, experts say.
"The Canada Health Act and the relevant British Columbia legislation do not promise that any Canadian will receive funding for all medically required treatment," Chief Justice Beverley McLachlin wrote in the Supreme Court's decision last month.
"All that is conferred is core funding for services delivered by medical practitioners and, at the province's discretion, funding or partial funding for non-core services."
The ruling is in response to the argument that the treatment was a medical necessity. But south of the border, the treatment is handled under federal jurisdiction and provided by the school boards, says Toronto lawyer David Baker, who specializes in education and disability law.
"My understanding is that it is working very, very well," Baker says, "People in the United States can't understand the problems here."
Baker and some of the parents will hold a press conference Monday at Queen's Park to announce their action.
Baker says it has even become difficult to retained qualified ABA practitioners in Canada. For the Canadians courts to agree that the treatment should be handled by the education systems, "It will be necessary to demonstrate to the court that it is a necessary, essential part of education for some," Baker says.
"The government and school boards are fully aware that this is implemented through the education system in the States," says Taline Sagharian, the Mississauga mother of a young boy with autism.
"It's inevitable that it's got to happen one day."
She says families like hers have been unable to get answers for years.
"We're used to being bounced around from one ministry to another," she says, "And no one took any kind of initiative to look at seriously implementing this in the education system."
Sagharian says there is a public misconception that ABA is a medical treatment.
"When they hear treatment, they think it is being delivered by people in white coats and stethoscopes," she says.
She says her son Christopher, who is almost eight, has learned more in the past year than he has ever learned before.
She credits his dramatic progress to the specialized school where he has been receiving intensive ABA treatment over the past year.
"He's a totally different kid," Sagharian says, "I've seen him reach a level that I never thought would be possible, he's participating more in school, more with family, he's paying attention to our conversations, and ABA is helping him to get there."
But it comes at a high price. Annual tuition for his school is $55,000 and tuition for such schools ranges from $40,000 to $70,000. She is hopeful.
"Although this decision was a blow to the cause, what remains clear is that the battle is far from being over and perhaps it provides us the opportunity to explore a different perspective on the issue," she says.
But Baker warns that a new lawsuit could take as much as five years to reach its culmination.
Another legal expert, Dianne Pothier, says she is not holding out for a new successful lawsuit.
Pothier, who was counsel for the Women's Legal Education and Action Fund for Women (LEAF) and The Disabled Women's Network Canada (DAWN) in this case, and is professor of constitutional and public law at Dalhousie Law School, says that change may have to come through the political system and through lobby groups.
The ruling didn't come as a surprise to Pothier. "I always thought it was an uphill battle in some ways," Pothier said.
"What we tried to get the court to deal with was that the health care system is geared to the typical needs of the able-bodied, and they completely ignored that point."
Pothier says, "[The court] is simply not saying it's a constitutional requirement and it certainly leaves it open to lobbying."
But even if funding is provided, there isn't the infrastructure right now to handle ABA treatment in Canadian school boards, says Dr. Joel Hundert, a psychologist who has a specialty in working with children with autism; is a certified behaviour analyst, and director of The Behaviour Institute.
There aren't the post-secondary programs in place to train practitioners who would act as consultants in the schools, he says.
Dr. Hundert says there probably only about 12 Behaviour Analyst Certification Board-certified behaviour analysts in Ontario.
"It's the only treatment approach that has been shown to be effective," he says.
"Without someone overseeing it, it's impossible to do it well."
Less than a week after the ruling, the Nova Scotia announced a $4-million program to help children with autism.
And just days after the ruling, parents of children with autism presented a petition to MPs asking the Parliament to amend the Canada Health Act to include the therapy.
"It's possible that the decision from the highest court in Canada signifies the closing of an old chapter for autism. We have no choice now but to move on to a new chapter," Sagharian says.
http://www.ctv.ca/servlet/ArticleNews/st...TopStories
Ontario parents to launch new autism lawsuit
There is a glimmer of hope for families with autistic children who were devastated by the Supreme Court's recent decision ruling that provinces are not obliged to fund treatments not covered by the Canada Health Act.
Canadian families with autistic children plan to announce a new legal challenge arguing that an expensive treatment is an educational necessity, not a medical one, experts say.
Now that the ruling has been announced, the door is open for a new lawsuit to be launched, one that could argue that Applied Behavioural Analysis should be funded by the educational system as it is in the United States, experts say.
"The Canada Health Act and the relevant British Columbia legislation do not promise that any Canadian will receive funding for all medically required treatment," Chief Justice Beverley McLachlin wrote in the Supreme Court's decision last month.
"All that is conferred is core funding for services delivered by medical practitioners and, at the province's discretion, funding or partial funding for non-core services."
The ruling is in response to the argument that the treatment was a medical necessity. But south of the border, the treatment is handled under federal jurisdiction and provided by the school boards, says Toronto lawyer David Baker, who specializes in education and disability law.
"My understanding is that it is working very, very well," Baker says, "People in the United States can't understand the problems here."
Baker and some of the parents will hold a press conference Monday at Queen's Park to announce their action.
Baker says it has even become difficult to retained qualified ABA practitioners in Canada. For the Canadians courts to agree that the treatment should be handled by the education systems, "It will be necessary to demonstrate to the court that it is a necessary, essential part of education for some," Baker says.
"The government and school boards are fully aware that this is implemented through the education system in the States," says Taline Sagharian, the Mississauga mother of a young boy with autism.
"It's inevitable that it's got to happen one day."
She says families like hers have been unable to get answers for years.
"We're used to being bounced around from one ministry to another," she says, "And no one took any kind of initiative to look at seriously implementing this in the education system."
Sagharian says there is a public misconception that ABA is a medical treatment.
"When they hear treatment, they think it is being delivered by people in white coats and stethoscopes," she says.
She says her son Christopher, who is almost eight, has learned more in the past year than he has ever learned before.
She credits his dramatic progress to the specialized school where he has been receiving intensive ABA treatment over the past year.
"He's a totally different kid," Sagharian says, "I've seen him reach a level that I never thought would be possible, he's participating more in school, more with family, he's paying attention to our conversations, and ABA is helping him to get there."
But it comes at a high price. Annual tuition for his school is $55,000 and tuition for such schools ranges from $40,000 to $70,000. She is hopeful.
"Although this decision was a blow to the cause, what remains clear is that the battle is far from being over and perhaps it provides us the opportunity to explore a different perspective on the issue," she says.
But Baker warns that a new lawsuit could take as much as five years to reach its culmination.
Another legal expert, Dianne Pothier, says she is not holding out for a new successful lawsuit.
Pothier, who was counsel for the Women's Legal Education and Action Fund for Women (LEAF) and The Disabled Women's Network Canada (DAWN) in this case, and is professor of constitutional and public law at Dalhousie Law School, says that change may have to come through the political system and through lobby groups.
The ruling didn't come as a surprise to Pothier. "I always thought it was an uphill battle in some ways," Pothier said.
"What we tried to get the court to deal with was that the health care system is geared to the typical needs of the able-bodied, and they completely ignored that point."
Pothier says, "[The court] is simply not saying it's a constitutional requirement and it certainly leaves it open to lobbying."
But even if funding is provided, there isn't the infrastructure right now to handle ABA treatment in Canadian school boards, says Dr. Joel Hundert, a psychologist who has a specialty in working with children with autism; is a certified behaviour analyst, and director of The Behaviour Institute.
There aren't the post-secondary programs in place to train practitioners who would act as consultants in the schools, he says.
Dr. Hundert says there probably only about 12 Behaviour Analyst Certification Board-certified behaviour analysts in Ontario.
"It's the only treatment approach that has been shown to be effective," he says.
"Without someone overseeing it, it's impossible to do it well."
Less than a week after the ruling, the Nova Scotia announced a $4-million program to help children with autism.
And just days after the ruling, parents of children with autism presented a petition to MPs asking the Parliament to amend the Canada Health Act to include the therapy.
"It's possible that the decision from the highest court in Canada signifies the closing of an old chapter for autism. We have no choice now but to move on to a new chapter," Sagharian says.
http://www.ctv.ca/servlet/ArticleNews/st...TopStories