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Understand Legal Rights to Assist Students with Disabilities Entering College

August 31st, 2012

By Marion M. Walsh, Esq.

The beginning of college or other post-secondary school represents an exciting and emotional time for any parent, filled with great pride but also great concern.  For students with disabilities, the emotions are amplified, as many parents wonder if their children are sufficiently prepared and ready to succeed in college.

With careful attention to this transition, parents can act as partners with their children without usurping and controlling the process.   Parents should understand their legal rights and the rights of their children to help the process go smoothly.

Know Your Parental Rights to Receive Information
As a general rule, pursuant to the Family Education Rights and Privacy Act (“FERPA”), the right to access educational records transfers from parents to “eligible students” at age 18.  Many parents and even some colleges believe that this means that parents have no right to receive information or educational or records without student consent.  Many colleges, as a general practice, will not give parents information or educational records about their children.  However, if you claim your child as a dependent on your tax return, as most parents do for college students, FERPA allows your student’s college to release student records and information to you, whether or not your child consents. 34 CFR  §99(a)(8).

So if your student’s college resists providing information, let them know your child if financially dependent and, if necessary, you can provide your tax returns.

Encourage Your Child to Self-Advocate
Parents must help their children advocate for themselves. Ideally, students should have developed this skill in high school as part of transition services on their IEP, but many do not develop this skill by high school graduation. 

If your child has not developed the skill of self-advocacy, there is still time.  Your student must know his or her strengths and areas of need and understand his or her legal rights. You can ask your student’s advisor to work with your child to help him or her self-advocate and explain the importance.

How much should you advocate for your college student? Every student is different. For students with disabilities initially adjusting to college, some parental advocacy is appropriate to get students settled. But ultimately, your goal should be to ensure your child understands his or her legal rights and can advocate.

Understand Your College Student’s Rights
Although colleges and universities do not have to comply with the Individuals with Disabilities Education Act and develop IEPs or provide a free and appropriate public education, just about every institution must comply with Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.   This means that they must offer equal opportunity and access to opportunities for students with disabilities, and offer programs and services on the same basis as to non-disabled students. Specifically, Section 504 of the Rehabilitation Act provides, in relevant part that, individuals with disabilities shall not “be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” Students with disabilities are entitled to reasonable accommodations and services, but your child will have to initiate the request for accommodations or services and provide documentation.

Your student’s college should have a Disabilities Service Office and publish important information on student rights. The Office for Civil Rights has put together guidance written specifically for college students with disabilities and has also published important information on auxiliary aids and services.

Parents of High School Seniors

In a future entry, we will provide guidance for parents of students with disabilities in high school, preparing for college, to ensure your child is receiving appropriate transition services.

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Services for People with Special Needs: Educated Canines Assisting with Disabilities (ECAD)

August 30th, 2012

This week, we interviewed a service organization that assists people with disabilities and special needs, Educated Canines Assisting with Disabilities (ECAD).  Since 1997, ECAD has been training and placing assistance dogs to help people with disabilities to gain independence and mobility. We spoke with ECAD advocate, Lee O’Brien-Rothman, and Communications and Public Relations Manager, Patricia Robert to find out more about the services they offer to people with special needs.

I am a retired disabled Police Officer who has spent 14 years serving my community. Brady came into my life after it was turned upside down by and on duty incident and subsequent PTSD. Being trapped in the wet blanket that is PTSD I became depressed and cut off from the entire outside world. Through Educated Canines Assisting with Disabilities, ECAD, I was chosen by a smart but goofy and kind golden retriever that immediately brought a smile to my face and a spark back in my life. ”

– Lee O’Brien-Rothman and Brady graduated from ECAD in May 2011. Since then, the two have become tireless advocates for ECAD and for Assistance Dogs. Brady O’Brien-Rothman has a Facebook page with thousands and thousands of friends.

How can people find out about ECAD:

People can visit our website, WWW.ECAD1.ORG or contact www.assistancedogsinternational.org, a coalition of non-for-profit organizations that train and place assistance dogs.

Do people have to qualify for a dog? If so, how?

People who apply for an ECAD educated Service Dog are always interviewed by our co-founder and Director of all programs, Lu-Picard. After they have filled out and submitted the completed application form, they can visit the main training facility, located in Dobbs Ferry. ECAD Service Dogs are educated to assist people with a wide range of disabilities, including adults, teens, even children as young as two, who have autism. It isn’t so much “qualifying” as it is following through with the determination to learn how to train/be responsible for a Service Dog by participating in the two-week team training sessions that are held several times each year. ECAD does not educate dogs for vision or hearing alerts.

How to apply for an ECAD Service Dog:

Information about applications can be found on ECAD’s website, or by calling the main office at 914-693-0600 ext.1958 and asking for the client liaison person.

What breeds of dogs are used as ECAD Service Dogs?

ECAD primarily trains golden retrievers, and Labradors, and a Lab-Great-Dane mix, all for their good temperament and intelligence. All ECAD Service Dogs are educated to respond to 80+ commands, including the retrieval of dropped objects, the pulling of wheelchairs, turning light switches on and off, loading and unloading the wash, reminding their person to take medication, alerting people with sleep disorders when they don’t respond to an alarm, and many other things. In addition to helping with physical problems, our service dogs are also trained assist people with emotional or psychological problems that stem from Post Traumatic Stress Syndrome (PTSD) and Traumatic Brain Injury (TBI) – problems that are being experienced by many veterans in recent years.

Tell us a bit more about ECAD’s Programs.

ECAD’s mission is to enable people with disabilities to gain greater independence and mobility through the use of specially educated dogs. Our programs include:

  • Project HEAL: a program that honors and empowers veterans and service members by addressing both visible and invisible disabilities. It entails a transition program that focuses specifically to re-adapt to a civilian culture by bridging the gap through a modified Service Dog Training program.
  • Canine Magic Service Dogs: a program in which ECAD Service Dogs are trained to assist children with Autism through emotional bonding, socialization, cognitive development and safety.
  • Open Doors: Service Dogs can be found working in public and private homes, hospitals, courthouses and nursing homes to help people with both physical and emotional disabilities.
  • ECADemy: a vocational curriculum administered at alternative schools specializing in helping children and teens with emotional, behavioral and social problems. All of these Service Dogs are trained by these students.

Can People Volunteer?

ECAD is a non-for-profit organization – volunteers are ALWAYS welcome at ECAD. There are many opportunities including:

–       Assisting in the main office

–       Grant writing

–       Becoming a home handler

–       Transporting ECAD Service Dogs to in-home trainings (on weekends only)

For more information on volunteering at ECAD, contact Tara at 914-693-0600 ext.1950.


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Governor Amends New York Education Law to No Longer Require Additional Parent Member for CSE

August 22nd, 2012

by Marion Walsh, Esq.

On August 1, 2012, Governor Cuomo signed a Bill which amends New York Education Law 4402 to no longer require an additional parent member for Committee on Special Education (“CSE”) meetings. Before this amendment, New York law required for every CSE meeting (although not for subcommittee meetings), the participation of an additional parent member of a child with a disability residing in the school district or a neighboring school district.

The amended law provides, as with the current law on requesting a physician, that an additional parent member only must be in attendance at any CSE meeting if requested in writing by the parent (or personal in parental relation) to the student, at least 72 hours prior to each meeting.  The school district must provide the parents with written notice of their right to have an additional parent member attend any meeting of the CSE. The notice must include a statement, created by the New York State Education Department explaining the role of having the additional parent attend the meeting.

The amendment goes into effect immediately, but there will be some transition time, until the former law phases out and until the New York State Education Department amends the Part 200 Regulations and issues guidance for school districts.

Effect of New Law on Parent Rights

The Individuals with Disabilities Education Improvement Act does not require parent members as part of an IEP team.  The amended law does not impair the rights of parents, as parents still have the right to request a parent member. More frequently than not, parents waive or decline parent member participation.    However, parents need to be aware of their right to request an additional parent member and pay careful attention to the 72 hour time period.   Parents also need to understand that parent members can serve an important function.

Parents should carefully consider whether they will need a parent member.  Parent members can be helpful to lend perspective and objectivity and, if they are from the District, can offer knowledge and help about District programs.  If you’re attending an initial eligibility meeting for your child, you will be unfamiliar with the process and the associated emotions and would likely benefit from an additional parent member.   If the CSE is considering a more restrictive placement, the parent member may also help you weigh the benefits.  Also, for particularly contentious or emotional meetings, parent members can lend perspective.   Remember, the parent member does not serve as a substitute for a good advocate and is simply participating in the meeting as an additional CSE member.

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For Children with Special Needs, Last Two Weeks of Summer Require Planning and Structure

August 20th, 2012

By Marion M. Walsh, Esq.

The last two weeks of summer before school starts can be a challenging time for all parents, particularly for parents of children with disabilities. Although many families savor the last weeks of summer and enjoy relaxing time with their children, many parents do not have the resources to take vacation time or have work obligations.  Except in rare cases, school district extended year programs and most camps have ended.  It’s important to engage your child these last two weeks to ensure that he or she is ready for school,  does not regress and begins with a positive mind set.

Here are five tips for making the most of the last two weeks of summer:

1. Make sure your child has adequate supervision if you cannot be at home all day. New York State law sets no specific rule on when children may remain alone, and the decision to leave a child alone will be dependent on the child’s maturity level, the period of time left alone and the child’s needs.  The  United States Department of Health and Human Services has published a Fact Sheet with guidelines.  Safety comes first, so if you have any doubts about whether your child may remain alone, do not leave your child.   Whatever your child’s age, if he or she has a disability, planning some daily supervision for your child is essential, even for teenagers, who often need as much or more support than younger children.  Left without any supervision or structure, many will simply play computer or video games all day, which can lead to social isolation, impaired attention and other problems.  If you must work outside the home and cannot arrange child care, look for help from friends and family, such as grandparents or aunts or uncles.  Of course, some children with disabilities, should never be left along, no matter what their ages, including but not limited to: children with intellectual disabilities, children with depression, anxiety or emotional disabilities, or children with medical conditions that require monitoring.

2. Plan some structure for your child. You’ll want to ensure that your child does not regress in the last two weeks of summer, whether socially, emotionally or academically. While this time is supposed to be relaxing, it should also contain enough structure to help retention of some skills. Make sure you read to your child, or if your child is an independent reader, monitor reading and schedule trips to the library or book store.   To help with social adjustment,  schedule playdates with classmates, if this has not occurred already.  Plan daily activities with your child.  If parents have the time, these last two weeks of summer can be a great time to plan visits to museums, plays or to enjoy outdoor activities.   Even though you may not be able to take a formal vacation, you can plan activities in the day or “mystery trips” if your child likes surprises. If you have to work outside during the day, plan activities for the evening, such as outdoor concerts or trips to the bookstore.

3. Engage your child in getting ready for school. Talk to your child about the upcoming school year in a positive way and discuss any changes that will occur this year.  If your child is newly classified or beginning a new program or school, be sure to take time to talk to him or her about it.  You can check with your school district on whether the program will be available for a visit.  Of course, it’s important to get all needed school supplies.  Bring your child along on the trip to allow him or her to make choices.

4. Review IEP or Section 504 Plan. Review your child’s IEP or Section 504 plan to make sure that it is appropriate and complete.   Pay close attention to your child’s placement, related services and accommodations, as well as his or her present levels of academic achievement, functional performance and learning characteristics.  The Individuals with Disabilities Education Improvement Act requires your school district to have your child’s IEP in place before the beginning of the school year, so if you have not received your child’s final IEP, email or write a letter to your school district.

5. Notify school district of any changes or new reports. Consider whether there are any changes in your child’s achievement or level of functioning–whether positive or negative– from over the summer and notify your school district. If you have received formal reports or evaluations from over the summer, whether from camp staff or from physicians, let your school district know and send them  the reports.

Most importantly, focus on the positives of beginning a new school year and enjoy some down time without becoming anxious or stressed. Your anxiety will impact your child, so, even if things are not perfect, relax and savor the last weeks of summer before school schedule takes over.

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Don’t Forget the Ten Day Notice Rule if Considering Tuition Reimbursement Claim

August 17th, 2012

If you are the parent of a child with special needs and are sending your child to private school because your public school district denied your child a free and appropriate public education (“FAPE”), you have the right to seek tuition reimbursement or even prospective payment from your public school district, pursuant to the Individuals with Disabilities Education Improvement Act. This constitutes an important right for students who have been denied a FAPE.  But the process is not simple.  To prevail in a tuition reimbursement claim: 1) The District must fail in its burden to prove that it offered or provided the student a FAPE; 2) The parents must prove that the private school is appropriate to meet the student’s special education needs; and 3) Equitable considerations must support the parents’ claim.

As to this latter requirement, parents must, among other things, provide school districts written notice, 10 business days before removing the child from the public school, that they are rejecting the public placement and seeking tuition reimbursement. This means, that at the latest, parents must send this letter 10 business days before the start of the school year.  If parents fail to provide this notice, the right to reimbursement may be reduced or denied.

The 10 day deadline is fast approaching.  Because most public schools in the New York area start on September 5, 2012, parents should be sure to get their letter in by Tuesday, August 21, 2012.  If your school district starts on Tuesday, your letter must be in by Monday, August 20.   If you are considering a tuition reimbursement claim and need help deciphering the process, do not hesitate to call our office for an initial consultation.

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U.S. Department of Education and New York State Issue Reminder on Keeping Students Free from Abuse, Restraints and Seclusion

August 14th, 2012

By Marion Walsh, Esq., Littman Krooks LLP

Restraints, seclusion and aversive interventions against students with disabilities are not just part of a dark past.    A May 2009 U.S. Government and Accountability Office Report, on Seclusions and Restraints, reported on hundreds of allegations of harmful, restraints and seclusion.  Almost all of the allegations involved students with disabilities. For example, a 17-year-old boy reportedly died from an asthma attack while being restrained by a counselor at a private school for emotionally disturbed teens.  The father of an 8-year-old student with autism reported that his son suffered from scratches, bruises and a broken nose after being put in a prone restraint by his public school teacher and aide. A special education teacher allegedly fractured a 12-year-old girl’s arm when she put the student in a “therapeutic hold,” described as being similar to a “bear hug.”
On August 13, 2012, the New York State Education Department sent a directive to remind schools in the state to follow federal and state policy on restraint and seclusion in schools. The directive referenced a U.S. Department of Education publication:  Restraint and Seclusion: Resource Document, which emphasizes 15 Guiding Principles for states, schools and staff. The Resource document serves as an important reminder for school districts on how to keep all students safe.

15 Guiding Principles

The 15 Guiding Principles state:

1.   Every effort should be made to prevent the need for the use of restraint and for the use of seclusion.

2.   Schools should never use mechanical restraints to restrict a child’s freedom of movement, and schools should never use a drug or medication to control behavior or restrict freedom of movement (except as authorized by a licensed physician or other qualified health professional

3.   Physical restraint or seclusion should not be used except in situations where the child’s behavior poses imminent danger of serious physical harm to self or others and other interventions are ineffective and should be discontinued as soon as imminent danger of serious physical harm to self or others has dissipated.

4.   Policies restricting the use of restraint and seclusion should apply to all children, not just children with disabilities.

5.   Any behavioral intervention must be consistent with the child’s rights to be treated with dignity and to be free from abuse.

6.   Restraint or seclusion should never be used as punishment or discipline (e.g., placing in seclusion for out-of-seat behavior), as a means of coercion or retaliation, or as a convenience.

7.   Restraint or seclusion should never be used in a manner that restricts a child’s breathing or harms the child.

8.   The use of restraint or seclusion, particularly when there is repeated use for an individual child, multiple uses within the same classroom, or multiple uses by the same individual, should trigger a review and, if appropriate, revision of strategies currently in place to address dangerous behavior; if positive behavioral strategies are not in place, staff should consider developing them.

9.   Behavioral strategies to address dangerous behavior that results in the use of restraint or seclusion should address the underlying cause or purpose of the dangerous behavior.

10. Teachers and other personnel should be trained regularly on the appropriate use of effective alternatives to physical restraint and seclusion, such as positive behavioral interventions and supports and, only for cases involving imminent danger of serious physical harm, on the safe use of physical restraint and seclusion.

11. Every instance in which restraint or seclusion is used should be carefully and continuously and visually monitored to ensure the appropriateness of its use and safety of the child, other children, teachers, and other personnel.

12. Parents should be informed of the policies on restraint and seclusion at their child’s school or other educational setting, as well as applicable Federal, State, or local laws.

13. Parents should be notified as soon as possible following each instance in which restraint or seclusion is used with their child.

14. Policies regarding the use of restraint and seclusion should be reviewed regularly and updated as appropriate.

15. Policies regarding the use of restraint and seclusion should provide that each incident involving the use of restraint or seclusion should be documented in writing and provide for the collection of specific data that would enable teachers, staff, and other personnel to understand and implement the preceding principles.

New York Regulations

As confirmed by a recent memorandum by the New York State Department of Education, New York Regulations are aligned with the 15 Guiding Principles.  Notably, New York Regulations require the use of positive behavioral supports and interventions and require a behavioral intervention plan for those students with disabilities whose behavior interferes with their education or the education of others, as confirmed by policy guidance.

The Regulations also generally prohibit aversive interventions and restraints for all students, with an important caveat:  The Regulations allow the use of reasonable physical force for the following purposes for school staff. (8 NYCRR § 200.22(d)).

    • to protect the staff member from physical injury;
    • to protect another student or teacher or any person from physical injury;
    • to protect the property of the school district or others; or
    • to restrain or remove a student whose behavior is interfering with the orderly exercise and performance of school functions, powers and duties, if that pupil has refused to comply with a request to refrain from further disruptive acts (8 NYCRR§ 19.5).

Pursuant to New York Regulations, schools must provide staff with appropriate training in safe and effective procedures. A school also must document the intervention and notify the parent of the student.  School supervisory personnel must review the documentation of emergency interventions (8 NYCRR§ 200.22 (d). For child specific exceptions to the use of aversive interventions, New York Regulations have essentially eliminated any exceptions to use aversive interventions, except that if a student’s Individualized Education Program ( “IEP”)  included aversive interventions as of June 30, 2009, the school district may seek an exception with the Commissioner. (8 NYCRR § 200.22(e), 8 NYCRR§ 200.22(e)(11)).

In addition, New York Regulations specifically prohibit the use of locked, secluded time out rooms.  The Regulations allow the limited use of appropriate time out rooms for students to deescalate. The space must have adequate light, ventilation and space and staff must supervise and monitor the student. (8 NYCRR §200.22(c).

What to Do

If your child is subject to any type of restraint, seclusion or physical force in school by a staff member, you have the right to seek answers and redress.  Ask for documentation, an investigation and an explanation of what happened.   Every child has the inherent right to be treated with dignity and respect and to be free from harm and abuse, no matter how challenging the situation.

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Guardianship Succession Bill Signed by Cuomo

August 10th, 2012

A proposed revision made by the NYSARC, Inc. Guardianship Committee in April was passed by both Houses of Legislature and signed by Governor Cuomo on August 1, 2012.

The changes made to the Guardianship Bill are listed below:

  • Chapter 294 of the Laws of 2012 ensures that standby or alternate guardians of developmentally disabled individuals can expeditiously assume their guardianship responsibilities upon the death or incapacity of the primary guardian.
  • Under the prior law, the failure to notify the standby or alternate meant that an individual with a developmental disability often went without a guardian for an indeterminate period of time.
  • This change, Chapter 294, puts a procedure in place, including written notification, to assure that a standby or alternate guardian will be appointed if the primary guardian is no longer able to assume his or her responsibilities for a person with a developmental disability.

At the age of 18, your child, whether with a disability or not, reaches the age of majority and is “emancipated” (free to make their own decisions without parental input). In the case of a child with a disability, he or she is emancipated unless a guardian is appointed. If you are a parent or a family member seeking guardianship for your child, you are required to apply to Court to get requisite authority. There may be certain circumstances where there are alternatives to guardianship. It is extremely important to discuss guardianship and possible alternatives with a qualified attorney who specializes in this area. To learn more, visit www.specialneedsnewyork.com.

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Summer Camp Can Provide a Tax Break

August 8th, 2012

As kids enjoy a carefree summer at camp, parents may be more concerned about the cost.  In some cases, there may be a tax break available. On average, parents spend more than two thousand dollars to send their children to four weeks of summer camp.  Any tax credit is surely welcome.

In the case of day camp, a child-care tax credit may be available, if the child is age 13 or under.  Sleep-away camps will generally not qualify for this credit, but some health-related camps may be eligible with a doctor’s recommendation.  This can be particularly helpful for parents of children with special needs.

The dependent care tax credit may be applied to other costs as well.  Nursery school and kindergarten costs are eligible, to the extent that they qualify as child care.  Parents may also deduct the cost of household help and private home nurses in some cases.  In addition, the cost of licensed dependent care centers may be deducted.

Certain limits apply.  The amount of the credit you may claim is also dependent on your income.  And, while the credit can reduce your tax bill, it cannot provide a refund.

For assistance with questions regarding your child’s special needs, visit our website at https://www.specialneedsnewyork.com/.

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