For BAPC, assisting children with special needs is a passion and a commitment– we provide counseling, advocacy, and aggressive legal representation in order to ensure every child has the opportunity to succeed.
Children with special needs face unique challenges in obtaining a free and “appropriate” public education. The law recognizes these challenges and provides special protections to accommodate children’s special needs, individualize the educational program, ensure parent participation, and protect against discrimination. While laws exist to help children with special needs, learning your rights and ensuring your child obtains the necessary services often requires the help of an advocate or attorney.
The Law — IDEA
The Individuals with Disabilities Education Act (“IDEA”) is the most important civil rights law for children with disabilities ever passed in the United States. The IDEA contains provisions that provide special education services to qualifying individuals from birth up to their 22nd birthday. Congress enacted IDEA to provide students with disabilities the right to a free and appropriate public education (“FAPE”) in the least restrictive environment (“LRE”) through the development and implementation of an Individualized Education Program (“IEP”) setting forth goals for each eligible student. In order to access services and supports for your child, it is important to understand the basic principles of IDEA and the systems and procedures the law has put into place for handling assessments, eligibility determinations, placements, services, and potential disputes.
Who Qualifies for IDEA (Eligibility)
A child age 3 to 21 qualifies for IDEA related services if he or she meets one of the thirteen eligible disabilities: autism; hearing impairment, including deafness; deaf-blindness; mental retardation; multiple disabilities; orthopedic impairment; other health impairment; serious emotional disturbance; specific learning disability; speech and language impairment; traumatic brain injury; and visual impairment, including blindness. The disability must also adversely affect the child’s educational performance and create a need for special education and related services. Related services, called Designated Instruction and Services (“DIS”) in California, include, but are not limited to, occupational, speech and physical therapy, health services, transportation, psychological and behavioral services, assistive technology, adaptive physical education, and specialized services for low incidence disabilities.
The process of determining eligibility for IDEA services starts with a letter to the school district’s special education department making a Request for Assessment (an evaluation) in all areas of suspected disability. The school district has fifteen (15) days to either refuse (in writing) to assess your child or to provide you with an Assessment Plan. You have fifteen (15) days to consent to the plan by signing it and returning it to the district. The district then has sixty (60) days to complete the assessment and to hold an IEP eligibility meeting. The decision of whether your child is eligible for supports and services takes place at that meeting.
A child who does not qualify for special education services under the IDEA may be entitled to services under another law called Section 504 of the Rehabilitation Act. A 504 Plan may include special accommodations in behavioral, environmental, and organization strategies.
Developing An IEP
The IEP team consists of regular education teachers, special education teachers, an administrator, district decision maker or representative, any relevant related service providers and therapists, parent(s), and where appropriate, the student. Under IDEA 2004, parents have the right to waive (in writing) the participation of some team members in the IEP meeting. The IEP team reviews the student’s assessments to determine the student’s needs and to decide eligibility for service under IDEA. If the student is deemed eligible, then the team develops annual measurable goals and objectives, setting out the student’s participation in various classroom activities, evaluates the need for assistive technology, supplementary aids, accommodations, and determines how services will be provided and by whom. An appropriate placement for the student is one in which she or he has a reasonable chance of achieving those IEP goals.
Do I need a lawyer?
IDEA is a good law, but it is complex and can be confusing. When school personnel and families work well together, students receive services and accommodations that enable them to make progress on their IEP goals. When there are differences of opinion among the members of a student’s IEP team over the contents or implementation of the IEP, the law sets out a series of procedures for trying to come to agreement. Many agencies have responsibility for ensuring that schools comply with laws that protect students with disabilities. However, because the IDEA law mandates an individualized program for each qualifying child with a disability, it usually falls to the parent to track a school’s compliance with procedures and provision of services. For this reason, complaints brought by parents have become a critical enforcement mechanism for IDEA. Parents have the right to file a Compliance Complaint for non-compliance with an agreed upon IEP, or any other violation of IDEA.
Sometimes, parents and school districts hold divergent views of how to serve the needs of a child. In these cases, you may be unable to come to an agreement with the school district on the content of the IEP because you cannot agree on what represents a free and appropriate public education (FAPE) for your child. In such instances, parents may need to file Due Process Complaints to initiate the legal process to request that the necessary services their child requires.
Due Process Hearings
A Due Process Hearing is the formal, legal procedure that resolves differences involving special education services for your child, with the goal of ensuring a free and appropriate public education (FAPE) tailored to your child’s unique needs. Disputes can arise concerning eligibility, placement, services, and/or supports for the student. Both the parent and the school district have the right to file for a Due Process Hearing to resolve a dispute. In 2005, the U.S. Supreme Court decided (Schaffer v. Weast) that the party who files the Due Process Complaint has the burden of proving whether the child’s rights are being protected or whether the individualized educational program (IEP) is appropriate.
Special Needs Trusts
Planning for family members with special needs is a complex but necessary process to ensure long-term care of those we love. Chances are there is or will be someone in your family (child, grandchild, nephew, niece, parent, grandparent) who will need long-term help managing personal care and/or finances. A quick look at the following statistics confirms that the need for special needs care and planning is increasing:
- In 1992, there were 15,580 children ages 6-22 who were diagnosed as having what is now called an Autism spectrum disorder. In 2006, the number was 224,594.
- In 2006, there were an estimated 24.9 million adults in the United States with Serious Psychological Distress.1
- An estimated 4.4 % of U.S. adults may have some form of bipolar disorder during some point in their lifetime.2
- In 2006, an estimated 22.6 million people in the U.S. (9.2% of the population age 12 or older) were substance dependent or abusive in the previous year.
Because many of the conditions causing a need for special care do not decrease life expectancy, families are seeking answers on how to provide the best quality of life for their loved ones for the rest of their lives . . . which, for a young child, could be 70 years or longer.
Are government benefits for a special needs person worth preserving? For families of modest or limited means, the answer is almost always, “Yes.” However, for more affluent families, the answer may be, “Maybe not.” In the past, many planners focused exclusively on preserving public benefits at all costs. Today, special needs planning is not necessarily “poverty planning.” The proper focus today is how to provide the best quality of life throughout the person’s lifetime. It may be better to privatize some special needs care instead of spending thousands to protect a benefit that has a low probability of being available in the future. Careful planning is necessary to craft a plan that will supplement government benefits that are worth preserving, is flexible enough to adjust to changes in future benefits, will preserve and expand assets, will make sure this person receives proper care, and may even save taxes.
For a special needs trust, the proper funding, implementation and periodic review are especially critical because it may have to last a lifetime and often cannot be replaced. Once the plan is in place, it will be need to be managed. Who should do that? The ideal trustee would:
- use discretion, acting in the best interest of the disabled beneficiary;
- understand public benefits and keep up with changes in the law;
- wisely invest and conform to all statutory fiduciary requirements;
- understand taxes;
- keep perfect books;
- provide advocacy and prevent abuse; and
- be immortal.
Since no one person can meet all of these requirements, often the most effective solution is to divide the responsibilities into areas and have a team of professionals work together. For example:
- A Corporate Fiduciary Trustee (bank or trust company) keeps perfect books; carries insurance, is bondable or has deep pockets; is immortal.
- A Care Manager uses discretion and acts in the best interest of the beneficiary; understands public benefits; provides advocacy and prevents abuse.
- A Financial Advisor invests wisely; conforms to all statutory fiduciary requirements; understands taxes.
- A lawyer skilled in special needs matters keeps up with the ever-changing laws and regulations and provides wise counsel to the family and the other team members.
Often a professional trustee will manage the funds, make distributions, prepare tax returns and keep the records, but will be directed by a Trust Advisory Committee that makes distributions, can amend the trust or replace the trustee. A care manager can be on this committee or be appointed by the committee. Another alternative is to have a trustee manage the funds but be directed by a care manager who interacts with the beneficiary. A trust protector or advisor would oversee the trustee and care manager from a distance and would be able to replace either for any reason.
Many people believe that estate planning is only for people who are particularly wealthy, have elaborate schemes in mind for passing their money to their heirs, or for people who are acutely ill and contemplating their death. This could not be farther from the truth! Estate planning is necessary for every parent with a minor child or dependent adult.
BAPC will help you uncover your hopes, fears, and expectations for yourself and for those who are most important to you. This process almost always requires the preparation of several sophisticated legal documents, but those documents themselves are not ‘estate planning.’ Planning is a process, represented by a complete strategy that is properly documented and maintained by a professional who has taken the time to get to know you, and who is committed to continuing to serve you.