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Mental Health Services Are Lacking

February 28th, 2013

There has been a renewed call for an examination of the country’s mental health system. Currently, according to a recent government report, there are approximately 7,500 psychiatrists working with mentally ill children and adolescents, but it is estimated that there is a need for closer to 20,000 to be available.  Meanwhile, families are hard-pressed to get reimbursement from public or private insurers for short-term mental health services that are available.

In a study released by the National Institute of Mental Health in 2005, researchers found that as much as 50 percent of chronic cases of mental illness begin around age 14, and 75 percent were detectable by age 24. It is now estimated that approximately five million children and teens in the U.S. have some form of mental illness severe enough to cause significant quality of life issues for them and their family members, including bipolar disorder, major depression, and schizophrenia. Approximately 10 million children and teens in the U.S. have some type of developmental disorder such as autism or other neurological or intellectual disability, and roughly 50 percent of those children also have at least one diagnosable mental illness as well. But in a system which is not adequately structured to treat multiple diagnoses in children, the number of children in need and the complexity of how to manage multiple disorders means an ongoing lack of appropriate health treatment, education, and advocacy.

The numbers tell a simple story: the U.S. is badly in need of a complete mental health services overhaul. While the Affordable Healthcare Act is being implemented to support the physical health of all the country’s residents, the mental health of millions of children and adolescents (not to mention adults with mental heath and substance abuse issues) continues to falter. The current approach to mental health support means a lack of care or patchwork care, at best, with no coordination between agencies or practitioners or systems.

What is the solution? There is currently no oversight agency, like the Food and Drug Administration, with which to set minimum safety standards and best practices for behavioral treatment and talk therapies. States have seen mental health funding cut by as much as $4 billion over the past three years at a time when early intervention and coordinated services have proven to offer the most promise and can save the expense of later, lengthy in-patient care. It is far past time for the U.S. to view mental health issues as simply health issues, diseases which not only deserve coordinated care, but which must be approached differently in order to save money and suffering down the road.

For more information, visit www.specialneedsnewyork.com.


U.S.D.O.E. New Reg Allows Schools to Obtain Medicaid Funds with One-Time Consent

February 25th, 2013

By: Giulia Frasca, Esq., Littman Krooks LLP

A new regulation from the United States Department of Education will go into effect on March 18, 2013, which will allow school districts to be able to recover costs for services for students with disabilities from Medicaid.  Since 2006, the Individuals with Disabilities Education Act (IDEA) required school districts to seek consent each time they sought Medicaid reimbursement.  This requirement has proven to be an undue burden and financially exhausting for school districts, which often absorbed the administrative costs of providing services such as occupational therapy, physical therapy, speech therapy and mental health counseling because they were unable to obtain consents from parent to seek Medicaid reimbursements.

This new regulation was developed in an effort to balance reducing the burden on school districts of the cumbersome 2006 regulation with protecting parents’ rights under the IDEA and the Federal Educational Right to Privacy Act (FERPA).  The new regulation requires school districts to inform parents that when they provide consent, personally identifiable information may be disclosed to Medicaid and that the school district must provide the therapeutic services at no cost nonetheless if consent for Medicaid reimbursement is withheld or withdrawn.  Once a school district obtains written consent, it is enforceable for the entire time a child is enrolled in a school district.  However, the school district must notify parents, in writing, each year of their privacy rights and their right to withdraw consent.  It is important for parents to remain informed of changes in regulations in order to protect their rights.

For more information, visit www.specialneedsnewyork.com.


Education Trust Criticizes the No Child Left Behind Act for Failing to Help At-Risk Students

February 21st, 2013

By: Giulia Frasca, Esq., Littman Krooks LLP

On August 8, 2011 President Obama directed the Secretary of Education, Arne Duncan, to “move forward with plans to provide flexibility to states,” which are looking for greater relief under the No Child Left Behind law.  The U.S. Department of Education has many options available to provide flexibility to states, including waivers of statutory and regulatory provisions as well as amendments to state accountability plans.  The Federal government’s decision to offer regulatory flexibility from some provisions of the Elementary and Secondary Education Act of 1965 (ESEA), most recently amended in 2002 by the No Child Left Behind Act, has been criticized for failing to address the needs of at-risk students.  The Education Trust, an education advocacy group, released a report called “A Step Forward or A Step Back?  State Accountability in the Waiver Era.” This article discusses the four major problems with the waivers:

  • (1) Although states were required to set ambitious goals to raise achievement and close gaps, these goals were not counted in school ratings;
  • (2) “Super subgroups” remain a problem because when a small subgroup is combined into a larger one, certain students’ struggles could be ignored;
  • (3) States do not use multiple measures to determine performance;
  • (4) Many states have vague guidelines for accountability for improving the most struggling schools.

A Senate Committee held hearings on February 7, 2013.

For more information on special education or special needs planning, visit www.specialneedsnewyork.com.


Special Needs Trusts: Answers To Frequently-Asked-Questions

February 15th, 2013

(This article was written by Kaitlin Ahern and highlighted an interview with Bernard A. Krooks, Esq. It was featured in NY Metro Parent (March 2013)

If you’re thinking of creating a special needs trust or supplemental needs trust for a loved one, first read these answers to frequently asked questions, including how to set up the trust, who can access it, and what benefits an SNT has compared to other options.

Wondering whether to set up a special needs trust (sometimes called a supplemental needs trust) for your child, or just fuzzy on some of the details? Here, Bernard A. Krooks, founding partner of Littman Krooks LLP, answers some frequently asked questions about these trusts, including first party SNTs and third party SNTs.

Q: What is a special needs trust?

A: There are different types, and it generally depends upon whose money is being used. You have two choices: Either the person who has a disability—the kid who got injured in a car accident, a child who has autism and his grandparents left him money—sets up the trust, which is called a first party special needs trust. In this case, the person setting it up is putting the money in. The second kind is set up by someone else—a parent, grandparent, uncle, sibling, or anyone else other than the one with the disability. That’s called a third party special needs trust. In this case, someone else is looking to improve the quality of life for the person with the disability.

The rules are much different for each type, so make sure you know which kind you have.

In the case of a third party special needs trust, the reason someone would set it up is to ensure a better quality of life for someone else who has disabilities, without compromising their ability to obtain government benefits. If you left them the money outright, you might disqualify them for needs-based benefits such as Medicaid. But if you put that money into a trust, it doesn’t disqualify them, it provides for professional management of your money, and you can make sure the person gets what they need.

Q: Can any lawyer create an SNT?

A: No. If your toe hurts, you don’t go to a cardiologist, you go to a podiatrist. Almost half our cases are referrals from other lawyers, because they recognize this is not something a general practitioner can do—you have to do this full time. Make sure you hire a lawyer that has a focused practice area in special needs trusts.

Q: Who is allowed to set up a special needs trust?

A: For a first party trust, there are limitations. The individual can’t set it up—it has to be a parent, grandparent, guardian, or the court, using the individual’s money. That person sets it up, then the control gets handed over to the trustee, who may or may not be the same person that set it up.

Anyone can set up a third party special needs trust. You don’t have to be a guardian or even a relative. And anybody can be a trustee. If you’re including the trust in your will, you will need somebody else—a family member, lawyer, accountant, or the bank—to be a trustee. Many banks have formed special needs departments with an expertise in special needs trusts. A lot of people use family members because of cost, and a lot use professional trustees so the money gets invested professionally. If you do both, you get professional money management, and you also get an individual touch. You can have more than one trustee, but be careful of the fees—you don’t want to deplete the trust’s assets.

Q: When is the best time to set up an SNT?

A: The sooner the better, since you could become incapacitated or die at any time. Why wait?

Q: What happens if you set up an SNT in New York and then move to a different state?

A: It may or may not work if you move. If the trust is drafted properly, it should work in both states. But if you know you’re going to move, it’s wise to have the trust reviewed by a lawyer in a different state, just to make sure you’ll get the full benefits of the trust under that state’s laws.

Q: By creating an SNT for a child, does that make you a legal guardian for the child?

A: No. Absolutely not.

Q: If a family has two or more children with special needs, can one SNT cover both of them?

A: It depends, and it’s really the choice of the parents. You can set up one for each, but then the money from trust A will only be utilized for son A, and trust B is only for son B. Which may be good. But if you put it in one pot, you can give it to one or both when they need it. So if you want to make sure each kid gets the same amount, create two separate trusts. If you want to make sure the money is used however it’s needed, set up one trust.

Q: Who can access the trust funds?

A: The trustee has complete, unfettered discretion. The child will not be able to demand the money. You’re relying on the trustee to know when the child needs it.

Q: If a family is wealthy and not too concerned about receiving governmental benefits, would you still recommend they set up an SNT for their child?

A: Yes, we do this all the time. You never know whether or not you’re going to need government benefits. Draft a trust with a great deal of flexibility, including a provision to give the trustee the authority to purchase something for the child even if it means it will disqualify them for Medicaid and other benefits, as long as the trustee determines that it will best benefit the child. That way, you can have your cake and eat it too.

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