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The Differences between 504 Plans in Public Schools vs Colleges & Universities

January 31st, 2014

It is important for students with disabilities who plan to attend college, and their parents, to understand how their legal rights related to their disability will change in a post-secondary education environment.

In public elementary and secondary schools, students with disabilities may receive services under the Individuals with Disabilities Education Act (IDEA) or the Rehabilitation Act of 1973. The IDEA does not apply in the workplace or in post-secondary education, so services available under IDEA, such as an individualized education program (IEP), are not available in college. However, services under Section 504 of the Rehabilitation Act may continue at the post-secondary level.

First, it should be noted that while Section 504 only applies to schools that receive federal funding, most colleges and universities do, and private post-secondary schools that receive no federal funding are still required to provide similar accommodations to students with disabilities, under Title III of the Americans with Disabilities Act.

Section 504 prohibits discrimination based on disability, meaning that the needs of students with disabilities must be met as adequately as the needs of students without disabilities are met. Colleges and universities must provide accommodations for students with disabilities. As a practical matter, this may include accessibility of classrooms, dormitories and other buildings; additional time on tests; substitution of some course requirements; interpreters or readers; adapted computer terminals and other services. Such services must be provided unless a fundamental alteration of the program or an undue financial or administrative burden would result.

Students with disabilities going from high school to college will need to advocate for their own needs more than ever. If the university has a disability support office, the student will need to make contact with that office to explain his or her needs. If a student has a history of accommodations in high school, then documentation of this should be provided to college or university officials. Most of all, students will need to be persistent, keeping a record of who they talked to, and continuing to press the matter until the needed accommodations are received.

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Electronic Tracking Devices in the Wake of Avonte

January 30th, 2014

By Marion Walsh, Esq., & Stacy Sadove, Esq.

The death of Avonte Oquendo, a 14 year old boy with  autism has shocked and saddened NYC and it surrounding area.  Avonte disappeared from his school in October and his remains were  discovered in the East River, after he fled school .

What can be done to prevent a future tragedy? Among other measures, Avonte’s loss has sparked the debate of using technology to track  children with special needs who  are flight risks.  Senator Charles E. Schumer recently proposed “Avonte’s Law,” which would finance a program to provide optional electronic tracking devices to be worn by children with autism.  Senator Schumer noted that Avonte’s running away was not an isolated incident.  Many students with disabilities pose flight risks, and technological solutions may be available.

What is an Electronic Tracking Device?

An electronic tracking device uses radio frequencies to track the location of individuals.  The  device can be worn like a bracelet or attached to clothing or shoelaces, and enables parents and law enforcement agencies to locate a child who  goes missing, within minutes.  Wearable radio frequency identification devices for children have been on the market for nearly a decade. However, their popularity has only recently come to the forefront of discussion with the increase in children whom are supposed to be under direct supervision going missing. Avonte Oquendo represents  just one of many students who have left school premises without notice.

Tracking Devices Used for Alzheimer’s Patients

Programs similar to this already exist for patients diagnosed with Alzheimer’s disease, and here at Littman Krooks LLP we often recommend many of our clients to engage in the use of tracking devices for elderly parents or relatives that have a tendency to wander. Opponents argue that a tracking device  further objectifies patients with this sensitive disease and leaves them even more powerless. However, proponents of the devices argue that it gives the caregivers and family a sense of security that they will always be able to find their loved one.

Devices Create Debate over Privacy Rights of Children with Special Needs

The proliferation of radio frequency devices is a serious concern and raises  many questions  with respect to tracking children. Should these devices solely be used on special needs children who are flight risks, or would these devices benefit all school children? Moreover, do these devices pose a significant risk to the privacy rights of our children?

Proponents of the tracking devices for use with all students argue that the devices offer security advantages if used in schools, as school officials would immediately know if a student didn’t show up for class and could notify parents quickly if a child was missing from school. School officials could also quickly identify anyone who didn’t belong on campus if they weren’t wearing a tracking device. Schools would also be able to more efficiently and accurately track and verify attendance of their students.

In 2005, a local school in Sutter California attempted to implement a tracking system for all of its students. However, in this case the parents were not informed of the tracking system until it was in place. The tracking system was ultimately abandoned as the ACLU and parents stated various concerns including that the transmitter would jeopardize the safety and security of children by broadcasting identity and location information to outside individuals with a chip reader and subject students to demeaning tracking of their movements.  Again, in San Antonio, Texas in 2012, Northside Independent School attempted to implement a similar program which was ultimately quashed by outrage from parents from lack of informed consent.

Unlike the systems in Sutter and Northside, Akins High School in Austin Texas in 2013 implemented a voluntary tracking program for its students to help raise awareness of truancy issues and prompt students to attend class. The Austin program required parental written consent. Thus far users of the program have stated that it has increased attendance among users and they have not seen negative effects.   Opponents of tracking children compare it to that of tracking of cattle or a system right out of an Orwell novel.  They believe that it is too much of an infringement on the rights of their children and do not believe that it is a proper method to monitor where and when a child moves.

If we raise ethical concerns regarding the tracking of the entire population of students, should we still be tracking special needs children? Specifically, targeting tracking children with autism raises the implication that children are uniquely helpless and should thus be subject to surveillance.  Does this infringe on their privacy rights more than others? Moreover, equipping children with autism with a tracking device, even voluntarily could open the flood gates for tracking devices to be used on all groups of at-risk kids including suicidal teens; domestic violence victims; and children with developmental disorders. Proponents argue what is the problem with opening the flood gates? If tracking works then we should use all available technology to keep our kids safe? The issue of targeting one group of children for tracking rather than all children can lead to issues of inequality.

Parents Must be Informed of Student’s Privacy Rights

Moreover, parents should be well informed of the risks of placing such a device on their child.  The idea of keeping our children safe through the use of technology, inherently clashes with the desire for privacy.  The Supreme Court recently looked at the issue of privacy rights with respect to GPS devices in United States v. Jones 132 S. Ct. 945 (2012). In Jones, the Supreme Court Justices agreed that the Defendant accused of drug trafficking was searched when the police attached a Global Positioning System (GPS) device to his car. However, the Court could not come to a decision on what constituted the search. Was it the attachment of the device or was it long-term monitoring. Justice Alito, concurring, argued that the monitoring was a violation of Jones’s reasonable expectation of privacy.

The Court’s landmark decision in Katz v. United States, 389 U.S.347 (1967), altered the focus of the Fourth Amendment from property to privacy rights. The use of GPS and tracking devices both to track a person’s property and themselves, will inevitably lead to future Supreme Court rulings with respect to the expectation of privacy. Specifically, if one voluntarily places a tracking device on themselves, by giving tracking information to a third party, do they still have an expectation of privacy? With each advance in technology, the courts and Congress are asked balance privacy issues.  It will take many future cases and statutes to determine what those rights are.  With respect to tracking devices on children, parents need to be aware of the risks that placing a device of their child may have.

The Use of Tracking Devices Should Remain an Individualized Decision

Many parents will argue  that the risk of the invasion of privacy is far outweighed by the safety and security they can gain for their child by employing one of these devices. With ever evolving technology and laws, parents need to keep appraised of changes. With the development of a database of information established on children, families need to be aware their information might be shared with other agencies and/or third parties. While these programs may ultimately do more good than harm, parents still need to be mindful regarding the accessibility and availability of their children’s private information.

We support Avonte’s Law as a voluntary protection for children with severe disabilities, but with the strong caveat that legislators must be mindful of privacy concerns. We urge legislators to adopt the law but draft it to maximize privacy protections for our most vulnerable students and absolutely ensure that it is voluntary and that a child only will wear a tracking device if his or her parents provide informed consent.  Parents need to carefully evaluate and understand the infringement of privacy for their child and make an informed decision.

In the interim, be proactive with your child.  Work with your school district on developing a program .  You and your child’s IEP team should evaluate whether your child poses a flight risk and include such information on your child’s IEP as a special alert and in their present levels of achievement and functional performance.   Make sure you alert all of your child’s teachers.  .  Ask about whether your child requires a functional behavioral  well as an intervention plan with regard to your child wandering is an extremely important conversation that should be had with the school district.

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New York Passes Law to Establish New State License for ABA Providers

January 27th, 2014

by Marion Walsh, Esq.

On January 10th, Governor Cuomo signed into law a bill which establishes a new state license for providers of applied behavior analysis (ABA) services to individuals with autism.  ABA represents the leading evidence-based therapy for individuals with autism and other developmental disabilities.   ABA, usually a one-on-one treatment method, focuses on assessing the environmental influences on behavior, assessment-based intervention, and data-based decision making. The new law will help individuals and families find quality ABA providers who have met stringent academic and training requirements, while also ensuring state regulation and continuing oversight of these providers.

The new law creates a new state license for behavior analysts (with at least a master’s degree) and a new state certification for behavior analyst assistants (with at least a 4-year college degree), with a protected scope of practice.    According to the New York State Association for Behavior Analysis there will be two different processes. The first process, which will be available from January 10th, 2014 to January 10th, 2016, allows an individual who is certified by the Behavior Analyst Certification Board (BACB) to become licensed or certified (assistants) if they fill out and satisfy the character and fitness requirement and pay the fee ($200 license; and $170 certification).  Second, the regular licensure process begins on July 1, 2014 and is available for anyone who does not have BACB certification. However, if an individual obtains BACB certification after July 1, 2014, they can still apply through the shorter process which will be open until January 10th, 2016.   The law goes into effect on July 1, 2014, except that individuals who are certified by the BACB will be allowed to apply immediately to the New York State Education Department for licensure or certification, provided they satisfactorily fulfill the character and fitness requirement and pay the required fee.

The new law represents an effort to reduce the out-of-pocket expenses paid by the families of those with autism.  The law builds upon New York’s insurance reform legislation, passed in November 2012, which requires state-regulated health plans to cover ABA. The insurance reform legislation required that ABA practitioners obtain a state license in order to qualify for insurance reimbursement. Because New York has no ABA license, the requirement effectively blocked the ability of many families to use their new insurance coverage.   The new law (S.4862) now supplements the insurance reform regulation by providing for the state licensing process.

For more information, visit our website, www.specialneedsnewyork.com.

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New York Passes Law to Establish New State License for ABA Providers

January 27th, 2014

by Marion Walsh, Esq.

On January 10th, Governor Cuomo signed into law a bill which establishes a new state license for providers of applied behavior analysis (ABA) services to individuals with autism.  ABA represents the leading evidence-based therapy for individuals with autism and other developmental disabilities.   ABA, usually a one-on-one treatment method, focuses on assessing the environmental influences on behavior, assessment-based intervention, and data-based decision making. The new law will help individuals and families find quality ABA providers who have met stringent academic and training requirements, while also ensuring state regulation and continuing oversight of these providers.

The new law creates a new state license for behavior analysts (with at least a master’s degree) and a new state certification for behavior analyst assistants (with at least a 4-year college degree), with a protected scope of practice.    According to the New York State Association for Behavior Analysis there will be two different processes. The first process, which will be available from January 10th, 2014 to January 10th, 2016, allows an individual who is certified by the Behavior Analyst Certification Board (BACB) to become licensed or certified (assistants) if they fill out and satisfy the character and fitness requirement and pay the fee ($200 license; and $170 certification).  Second, the regular licensure process begins on July 1, 2014 and is available for anyone who does not have BACB certification. However, if an individual obtains BACB certification after July 1, 2014, they can still apply through the shorter process which will be open until January 10th, 2016.   The law goes into effect on July 1, 2014, except that individuals who are certified by the BACB will be allowed to apply immediately to the New York State Education Department for licensure or certification, provided they satisfactorily fulfill the character and fitness requirement and pay the required fee.

The new law represents an effort to reduce the out-of-pocket expenses paid by the families of those with autism.  The law builds upon New York’s insurance reform legislation, passed in November 2012, which requires state-regulated health plans to cover ABA.    The insurance reform legislation required that ABA practitioners obtain a state license in order to qualify for insurance reimbursement. Because New York has no ABA license, the requirement effectively blocked the ability of many families to use their new insurance coverage.   The new law (S.4862) now supplements the insurance reform regulation by providing for the state licensing process.


For more information, visit our website, www.specialneedsnewyork.com.

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How Special Needs Families Can Save Money and Plan for Their Financial Future

January 21st, 2014

Parents of a child with special needs know that there are many expenses for their child and sometimes seemingly not enough resources to attend to them. Financial planning is definitely more complicated for special needs families, but planning carefully and taking advantage of certain money-saving strategies can make the task easier. Here are ten suggestions for how special needs families can save money and plan for their financial future:
1. Remember to Take Care of Your Own Needs

The logic of the airplane oxygen mask applies here: flight attendants instruct parents to affix their own masks first before assisting a child, because you cannot help your child if you are not protected. Likewise, parents are not actually helping their child if they spend money incautiously on the child’s care without also doing the necessary planning for their own retirement. Special needs children are more likely to be at least somewhat dependent on their parents as adults, so it is a help to them for their parents to be financially secure in retirement.
2. Consult with a Financial Planner or Special Needs Attorney

All families can benefit from assistance with financial planning, and this is all the more true for families with special needs. Navigating the complexities of public benefits, taxation and estate planning is not something that should be attempted without guidance. Spending money really will save you money.

3. Make Use of Public Benefits

Many families with significant resources or with higher-functioning special needs children may balk at taking advantage of public benefits such as Supplemental Security Income or Medicaid. However, these benefits are not just for low income families. The programs represent one way our nation takes care of its citizens, including people with disabilities. Just as one would not hesitate to take advantage of any legal tax breaks available, so one should access any public benefits that one has the right to.

4. Create a Special Needs Trust

A special needs trust allow families to set money aside for a child’s special needs without giving the money directly to the individual, which would trigger disqualification for needs-based public benefits. Proceeds from a life insurance policy can be directed toward a special needs trust, and the funds can be used for such things as out-of-pocket medical expenses, personal care aides, education and recreation.

5. Plan Your Estate

Estate planning for special needs families should involve the whole family. Grandparents should be informed that leaving money directly to a special needs grandchild may adversely affect eligibility for public benefits and should therefore be directed to a special needs trust instead. Guardianship in the event of the death of both parents is particularly important and should include a care guide communicating a special needs child’s individual care needs and personal tastes.
6. Be Prepared to Advocate for Insurance Coverage

Treatments for children with special needs may or may not be covered by health insurance. For example, speech therapy should be covered, if the need is medical rather than behavioral. However, getting the insurance company to pay may involve careful and persistent communication with doctors, therapists, and one’s insurance provider. If your child needs respite care, be prepared to advocate for coverage.

7. Find and Make Use of Community Resources

Seek out any and all resources available for special needs families in one’s local community. Nonprofit organizations often provide their own resources or assist families in finding the help they need.
8. Coordinate with Other Special Needs Families

Families with special needs should not try to go it alone. Companionship with other special needs children can be supportive and fun for kids and parents can benefit by sharing resources. Group activities are more economical and provide crucial moral support for families.

9. Make Use of Tax Deductions and Credits

The Internal Revenue Code provides for several tax deductions and credit available for special needs families. Deductions may be allowable for medical and therapy expenses, specialized foods and legal expenses. Tax credits that are particularly useful for special needs families include the child and dependent care credit and the earned income credit. Consult a tax professional in order to make the most of these advantages.

10. Plan Ahead for Your Loved One’s Adulthood

Just as parents plan for their own retirement, so must they plan for their loved one’s life as an adult. Will the child remain living with the parents? If so, will in-home support be needed? If a young adult with special needs is planning to move into a group home or other independent living arrangement, then research should be done well ahead of time in order to be placed on any necessary waiting lists and to budget appropriately.

This post was first contributed by Marion Walsh to Friendship Circle.

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Who Will Take Care of My Child with Special Needs When I am Gone?

January 9th, 2014


Join Bernard A. Krooks of Littman Krooks LLP and Ryan Platt of A Special Needs Plan (moderated by Keith Caldwell, founder of Failuretoplan.com) to present a live webinar for families on  special needs planning.
For details or to participate, please register by clicking here. To join the Facebook Event page, click here.

Who Will Take Care of My Child with Special Needs When I am Gone?

This is the question that kept me up one night a few years ago.  Not having an answer to this question is what started me on my journey of discovery for my family and it was the idea behind the creation of the website www.FailuretoPlan.com. I needed answers so that I could sleep comfortably knowing that if something were to happen to me that night, there was a plan in place that would take over and protect my family when I could no longer.

But, my child has autism and I have always been concerned about his future. It wasn’t that I didn’t want to plan for my child’s future because his future weighed heavily on me — I just didn’t know what to do or where to go for expert guidance and direction.  I was so busy with speech therapy, OT, IEPs, typical IEP’s for my special child and the sports leagues, practices, student government activities of my oldest child…

…Overwhelmed at times doesn’t begin to describe how I felt and days quickly turned in weeks which turned into months and, then, into years.  No long term planning was getting done with all of this activity in my life.  Can any of you reading this relate?

For me, to create a truly comprehensive plan, I had to come to terms with my own mortality and the fact of the matter is that ignoring the inevitable will not delay its’ coming.  If you fail to plan, you are planning to fail and failure was not an option for my child and my family.  Making no decision is a decision onto itself. Your little child with special needs will become an adult with special needs in the blink of an eye.

No one wants to talk about our mortality but everyone should.  Finding a team of professionals to help you navigate through the special needs planning process is a critically important task for all caregivers.  Through my own research, I learned of A Special Needs Plan – a leading expert of comprehensive special needs planning and Littman Krooks – the premier special needs planning legal firm in the country.

I spoke to both Bernard Krooks of Littman Krooks and Ryan Platt with A Special Needs Plan and  what struck me most about each of them was their sincere interest in wanting to help educate parents on the planning process.  I brought up my idea to create a series of online interviews that could help walk a parent through the key elements of preparing a plan for their special child and they both readily agreed.   We have completed several of these interviews already and you can watch and listen to them on our website.  Each one is about 25-30 minutes long.

It was important to me that what I learned on my journey, I would be able to share with other parents and caregivers.  Utilizing social media platforms makes it easy to document my learning and make it available to you through YouTube and other social media outlets.  You can watch the “live” interviews on YouTube or Google+ as they take place and ask questions of Ryan and Bernard live on the day of our interviews.

If one of your goals is to finally get your special needs plan completed in 2014, I would encourage you to listen to our previous interviews and put the upcoming ones on your calendar so you can learn how to set up a plan for your family in the new year.

Visit www.FailuretoPlan.com/video-training to watch previous interviews and find more planning resources as well as join the  Special Needs Children Community on Google+.


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