Therapeutic assistant as a means of inclusion for autistic children in the school environment: who is going to pay for this?

Abstract

The aim of this study is to analyse the role of the therapeutic assistant as a means of integrating autistic pupils into the school environment, and to determine who should be responsible for funding this role. In recent years, Brazilian legislation has been particularly concerned with establishing the inclusion of autistic individuals in all sectors of society and, with the aim of ensuring that this person with a disability has full access to education as well, has enacted various laws, the fundamental basis of which is the principle of equality. Decree No. 8368/14, which regulates Law No. 12.764/2012—establishing the national policy for the protection of the rights of persons with autism spectrum disorder—as well as the Statute of Persons with Disabilities, Law No. 13,146/2015, are important tools recently introduced into the legal system with the aim of reducing the differences between people with autism spectrum disorder and those considered ‘typical’. However, our courts have wavered in their decisions regarding who should be responsible for paying for the services of a therapeutic assistant in the school environment, sometimes imposing this obligation on the health insurance provider, and at other times on the school itself. It concludes that the provision of a therapeutic assistant in a school setting is not merely an educational service; for this reason, in accordance with the doctrine of comprehensive protection and the principle of absolute priority, both the school and, where applicable, the health insurance provider may be required to provide this professional. The method used is hermeneutic, based on an analysis of legislation, doctrine, and case law.