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529 Plans Offer Tax Benefits for College Savings

December 26th, 2012

College savings plans known as ‘529 plans’ are gaining in popularity, with over 2 million new participant families in the past five years, but they remain relatively little-known. A recent Edward Jones survey found 62 percent of parents surveyed did not know what a 529 plan is.

A 529 plan is a college savings account that allows investments to appreciate, earn interest and dividends, and be withdrawn free of federal income taxes provided the funds are used to pay for higher education for a designated beneficiary. This includes tuition, books, fees and room and board at most colleges, universities, graduate schools, and vocational schools throughout the country.

The designated beneficiary of your 529 plan account need not be related to you. It can be set up for a child, grandchild, friend, or even yourself. The minimum contribution is just $25.

Capital gains tax rates may see significant increases in the near future, which would make 529 plans all the more attractive for their tax-free growth potential.

Contributions to 529 plans may not be deducted from federally taxable income, but many states, including New York, allow state tax deductions. New York allows deductions for 529 contributions of up to $10,000 per individual or $20,000 per couple. Contributions are subtracted directly from your gross income for tax purposes, meaning you do not have to itemize deductions to save on state taxes.

Also of interest to some is the fact although assets within a 529 plan may be reclaimed, they are not considered part of the contributor’s gross estate for estate tax purposes, allowing the plans to be used for estate planning purposes.

New York’s 529 program allows investors to choose from three age-based investment options that each gradually become more conservative as the beneficiary nears college age. Alternately, investors may design and manage their own investment strategy by allocating assets among 13 individual portfolios.

For more information, visit www.specialneedsnewyork.com

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Resources to Assist You and Your Children in Coping

December 19th, 2012

Newton Connecticut,December 14, 2012

by Marion Walsh, Esq.

Our thoughts and prayers continue to be with the families in Connecticut who have lost loved ones. The Sandy Hook Elementary School in Newton could have been any school in the country and the tragedy affects everyone.  Clearly, we must all come together as a nation to address the issues that have led to this tragedy. But at this time, we should focus of our attention on the children and school staff who have lost their lives to senseless violence.

We know that families are struggling to process this tragedy that has occurred so close to home.  Everyone must stay calm and remind our children that our schools are generally very safe places.

We ask that this tragedy not become an excuse to stereotype or discriminate against students with disabilities.   In the aftermath of the shooting, unsubstantiated reports indicate that the gunman had Asperger’s syndrome or a “developmental disorder” and was shy and withdrawn. According to the Mayo Clinic: “Asperger’s syndrome is a developmental disorder that affects a person’s ability to socialize and communicate effectively with others. Children with Asperger’s syndrome typically exhibit social awkwardness and an all-absorbing interest in specific topics.”  A diagnosis of Asperger’s syndrome or autism does not make one more prone to violent acts.   With appropriate support and services, children with Asperger’s thrive and can make incredible contributions to our society.

Slowly, we will begin to heal and have the time and the courage to confront the serious issues that led to this tragedy.  We will have time to make schools safer for all.   We will have time to fight against the culture of violence that has permeated our country.  We will have time to ensure the right understanding, supports, and services are in place for all children.  We will have time to address the mental health crisis affecting many of our young people. But for now, we need to mourn those lost and wait for answers and the truth.

Here are some resources to assist you and your children in coping:

  • The National Association of School Psychologists — Talking to Children About Violence: Tips for Parents and Teachers
  • American Academy of Pediatrics – Resources to Help Parents, Children and Others Cope in the Aftermath of School Shootings
  • The National Association of School Psychologists — A National Tragedy: Helping Children Cope
  • American Academy of Child & Adolescent Psychiatry – Children and Grief
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Are You the Brother or Sister (Sibling) of an Individual with a Developmental Disability

December 18th, 2012

  • Are you an adult (over 18)?
  • Are you the brother or sister (sibling) of an individual with a developmental disability? *
  • Does your sibling live in New York State (including New York City)?

If you answered “yes” to these questions, then we want to hear from you! Please complete our New York State Siblings Needs Survey. We are trying to better understand the needs of siblings in New York State. The findings from this survey will help us plan the next steps to support adult siblings of persons with developmental disabilities.  We will also give you a list of sibling web resources at the end of the survey. The survey will take about 10-15 minutes.

To complete the survey, click on this link:

https://cornell.qualtrics.com/SE/?SID=SV_byDnruQStwJLQeE

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Ineffective Action against Student Harassment and Bullying Leads to $1 Million Dollar Award against School District

December 12th, 2012

By Marion Walsh, Esq., Littman Krooks LLP

In a recent decision, Zeno v. Pines Plains Central School District, Docket No. 10–3604–cv. (2d. Cir. 12/5/12), the United States Court of Appeals for the Second Circuit sent a resounding message to New York school districts and affirmed a $1 million dollar jury award to a student who faced bullying and harassment based on race for over three and a half years, in violation of Title VI of the Civil Rights Act of 1964 (“Title VI”). The award amounts to one of the largest damage awards in recent years in this type of case. Reflecting a culture that has recognized the grave harm of student bullying, the Second Circuit panel of three judges condemned school district inaction and found sufficient evidence in the record to support the jury’s finding that the District’s responses to student harassment “amount[ed] to deliberate indifference to discrimination.”

We applaud this decision, as it sets specific parameters on how school district officials should respond to student bullying and harassment and notifies school districts that ineffective action will not be sufficient to avoid liability for harm caused by student bullying.

The facts clearly support the ruling. Anthony Zeno, an African-American student who also was classified as a student with disability, moved to the Pines Plains School District in January of 2005 and began as a freshman. Harassment and bullying began almost immediately and never relented. A student threatened to rip his face off and used racial epithets when referring to him. In the student’s sophomore year, a student threatened to beat him up. Graffiti with death threats appeared in the school bathroom. Students threatened Zeno lynching by displaying a noose or threatening to put a rope around a nearby tree. Students tampered with Anthony’s locker so that it fell on his head and also filled the locker with garbage. In junior year, a student threatened him and repeatedly threatened his younger sister. When Anthony threw a punch, the district punished Anthony, but not the instigator. A student commented that Anthony would fit a role in the school play “if it was like a black gangster.” By senior year, the incidents grew more serious. For example, at an SMHS football game in September 2007, students instigated a fight and a student “jumped” Anthony’s friend, choking him until he lost consciousness. Students continued to call Anthony racial epithets in the hallways “all the time,” and he reported these comments to the principal. He encountered continued racial harassment on the bus to his off-campus BOCES program.

The student’s parent repeatedly informed school officials of the continuing and escalating harassment, each year. In Anthony’s freshman year, the parent wrote a letter to the Superintendent and school board notifying them of the harassment. The District never offered a meeting. At Anthony’s CSE meeting in June 2006, Mrs. Zeno said Anthony experienced school as a “battleground” and that the constant threats, epithets, and racial slurs created an atmosphere that sent a hate message. The parent initiated 30-50 communications on the bullying and harassment to the school district.

In response to these actions, the school district suspended certain students for approximately five days each, in response to various incidents. The Director of Special Education who was also the District’s Title IX compliance officer, also charged with investigating Title VI violations, never investigated the harassment although she had knowledge of them and received complaints. The District also conducted a mediation but did not notify the parent of the time or the date, and the mediator was not trained in diversity or bias awareness. While the school district conducted one day workshops against bullying, they were not targeted toward race and discrimination. Finally, the District hired a diversity consultant in Anthony’s junior year, but he only did preliminary work and never provided training.

The United States Department of Justice and Department of Education , charged with enforcing Title VI, submitted a brief in favor of the student’s position. The District contended that, as a matter of law, it was not deliberately indifferent to student harassment of Anthony. Specifically, it argued that (1) it reasonably responded to each reported incident, (2) it was under no obligation to implement the reforms requested by Anthony’s lawyer, and (3) it never knew that its responses were inadequate or ineffective.

While the court noted that, in some circumstances, prompt disciplinary action against a student’s identifiable harassers may show that a school district was not deliberately indifferent. The Second Circuit identified five circumstances which should have informed the District’s continued response to student harassment of Anthony was ineffective:

  1. The District knew that disciplining Anthony’s harassers—through suspensions or otherwise-did not deter others from engaging Anthony in serious and offensive racial conduct.
  2. The harassment directed at Anthony grew increasingly severe.
  3. The disciplinary action had little effect, if any, on the taunting and other hallway harassment,
  4. The District knew that the harassment predominantly targeted Anthony’s race and color.
  5. As early as November 2005, the Dutchess County HRC and N.A.A.C.P. offered the District both a free shadow, to accompany Anthony during the school day, and a free racial sensitivity training series, which the District declined.

The Second Circuit panel upheld the jury finding that the school district was deliberately indifferent to actionable harassment. First, the panel upheld the finding that, based on the record below, the harassment Anthony suffered was “severe, pervasive, and objectively offensive.” The court further upheld the jury findings that the District’s delay in taking additional action here was unreasonable and that the District’s additional remedial actions were little more than half-hearted measures. The Panel noted that “responses that are not reasonably calculated to end harassment are inadequate.” Finally, the panel upheld the award of $1 million dollars. The court rejected the school district’s argument that the damages were “garden variety,” in line with employment discrimination cases. The panel noted that Anthony was a teenager being subjected—at a vulnerable point in his life—to three-and-a-half years of racist, demeaning, threatening, and violent conduct. Furthermore, the conduct occurred at his school, in the presence of friends, classmates, other students, and teachers. The panel upheld the jury finding that the harassment would have a profound and long-term impact on Anthony’s life and his ability to earn a living.

What the Ruling Means for Parents and School Districts

The ruling should offer hope to parents of children facing bullying and harassment. The ruling confirms that parents must not give up and must keep relentlessly reporting and documenting all bullying and harassment in writing. The parent and student in this case kept detailed,and meticulous records for many years.

For school district staff, the ruling sends a clear message that staff must respond to student bullying in an effective way that actually targets and makes at least a reasonably calculated effort to stop the bullying and harassment. The United States Department of Justice noted that, in addition to accepting the offer of the NAACP for a shadow aide and sensitivity training, available and more effective responses reasonably calculated to ending the harassment could have included:

  • reaffirming the school district’s zero-tolerance policy against harassment;
  • redistributing the district’s code of conduct;
  • holding mandatory training for all employees and students;
  • issuing a letter to all parents that racial harassment of any form would not be tolerated; publicizing the means to report alleged harassment;
  • providing contact information for the school’s anti-discrimination officer; and
  • engaging Anthony in school-based counseling.
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Financial Security for a Family Member With Special Needs

December 6th, 2012

Adults with disabilities are increasingly at risk as the U.S. considers cuts to public funding. While the debate rages on concerning how the U.S. will continue to fund Medicaid and Social Security benefits, where cuts should be made and whether the systems are at all sustainable, millions of people with disabilities rely on the programs for a significant portion of their basic needs.

According to the Henry J. Kaiser Family Foundation, as of 2009, more than 5.5 million adults with disabilities living in the U.S. have their health care covered under Medicaid. Approximately 6.9 million  individuals with disabilities get regular Social Security payments via the Supplemental Security Income program.

In addition to navigating the complex systems of medical care and education for persons with disabilities, family members often are faced with the issue of how to ensure adequate financial assets to pay for these expenses without disqualifying the person with disabilities from government benefits. Families often begin a special needs trust, which can have money placed into it on a regular basis for future needs, like a college savings plan. Others have the trust designed so that any proceeds from specific life insurance policies will be directed to the trust when they pass.

Many estate planning attorneys who specialize in special needs trusts suggest judicious planning. Rather than piece together a plan that may have significant holes, work with an experienced special needs trust attorney to help with financial planning. The family members of someone with a disability should ensure their own financial needs are also secure; if parents use all of their funds and go bankrupt, an entire family can be devastated. View the special needs trust attorney as an informational resource about other support systems; there may be outreach programs and other benefits available though Medicaid, such as art classes and drop-in programs. Work with other family members in developing a plan for trust administrators so they stay informed about plans for the special needs individual and the proper role of the administrator.

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