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Understanding VA Disability Benefits

April 22nd, 2014
By Cindy S. Alvear, Esq. and Julian E. Gray, CELA®

The Special Needs Alliance and The Arc collaborate on issues of mutual interest. The Arc promotes and protects the human rights of people with intellectual and developmental disabilities and actively supports their full inclusion and participation in the community throughout their lifetimes.

Most people are aware, to some extent, that the Veterans Administration (VA) offers benefits for service-related disabilities. Many don’t realize, however, that for veterans with war-time service-even if stationed stateside-there may be coverage for certain non-service-related disabilities, as well. Here’s an overview:

Service Connected Disability Compensation

Tax-free payments, based on a sliding scale of disabilities, are available to veterans whose injury or disease results from military service. This includes related conditions which may not have produced symptoms prior to discharge. Higher rates of compensation are awarded for specific categories, such as loss of a limb, the effects of Agent Orange or supports needed for “activities of daily living,” such as bathing, dressing and dispensing of medication. Compensation for daily living supports is also available for parents and spouses.

Dependency and Indemnity Compensation (DIC)

Tax-free payments are provided to surviving spouses, children and parents of military personnel who have died during active duty, in training or as the result of a service-connected disability. Income limits apply in the case of parents.

Non-Service-Connected Pension with Aid and Attendance

Veterans with non-service-related disabilities, who completed at least one day of active duty service during a war-time period (World War II, the Korean War, Vietnam or the Gulf War) and served for a minimum of 90 days, may be eligible for non-taxable “Aid and Attendance.” It does not matter that they may have been stationed stateside or outside a combat zone.

Veterans who may have too much income to qualify for the base low-income pension may qualify for Pension with Aid and Attendance if they have high medical care expenses. Aid and Attendance may pay for the cost of caregivers who assist individuals with two or more activities of daily living (ADLs). Such services can be provided in the home, in a personal care or assisted living facility, or nursing home. Spouses are also eligible.

This benefit has stringent income and asset requirements. A veteran who has a high income, however, may still be eligible after the deduction of recurring, unreimbursed medical expenses, including prescriptions, insurance premiums and caregiver costs. Although there is currently no penalty for “spending down” assets before applying, pending federal legislation is likely to penalize individuals who dispose of assets at less than their fair market value within three years of filing.

While the value of an individual’s primary residence is not considered in the asset calculations, if the home is subsequently sold to help pay for a greater level of care, those funds could interrupt Aid and Attendance payments and require reapplication once the money has been spent. For this reason, it’s important to analyze long-term needs and options before submitting a claim.

To read the full article, visit the SNA website by clicking here.

Service Dogs: What to Do if Your Service Dog is Denied Public Access

April 15th, 2014

Individuals with disabilities who have service dogs should be prepared with knowledge of the law when they enter business establishments. If a dispute occurs over access to the business, then individuals will need to assert their legal rights in a clear and calm manner.

The Americans with Disabilities Act (ADA) prohibits privately owned businesses that serve the public from discriminating against people with disabilities. These businesses are required to permit access to individuals with disabilities and their service animals. (Note that the ADA does not require churches, private clubs or private homes to permit access to service animals.)

If access is initially denied, the first step is to clearly state that the dog is a service animal and that the Americans with Disabilities Act permits access. Although most people are familiar with guide dogs for the blind, some people may not know about other types of service animals, so a simple statement of the facts and the law may suffice to gain access.

The business is allowed to ask two specific questions: “Is this a service dog required because of a disability?” and “What task is the dog trained to perform?” An individual with a service animal should be prepared to answer these two questions satisfactorily, and be aware that there is no requirement to answer further questions.

Some people with disabilities carry copies of the U.S. Department of Justice’s ADA Business Brief on Service Animals with them, for instance in a pocket of the service dog’s vest. The Brief is a simple statement of the law from the federal government that may convince a business employee who is resistant. Individuals with disabilities are not required to carry this notice, or any other permit or license, with them.

If access is ultimately denied, then the individual should comply, but follow up with the business owner to remedy the situation. Reasonable remedies to ask for include training for employees regarding service animal access, or a sign on the door that confirms that service animals are permitted. If a business owner continues to deny access, then a complaint may be filed with the U.S. Department of Justice.

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Common Core Assessments: Pros & Cons of Opting Out

April 7th, 2014

By Marion Walsh, Esq., Littman Krooks LLP

Last week, New York State students participated in the English Language Arts assessments.  Math assessments will occur Wednesday, April 30 – Friday, May 2.   This is the second year that students in New York will take assessments based on Common Core Learning Standards (CCLS).  Westchester County Executive Rob Astorino has stated publically that he planned to have his children opt-out of these assessments.

Before making the same decision for your child, you should understand the purpose of the tests and any consequences of opting out for your child.

CCLS is Required in New York as Part of Assessment Scheme

The CCLS assessments represent only one part of required No Child Left Behind Act (NCLB) testing.  NCLB requires states to administer tests in English Language Arts (ELA) and Mathematics in grades 3-8 and at least once in grades 10-12. It also requires states to administer testing in Science at least once during grades 3-5, 6-9 and 10-12.  In New York, the State Education Department Office of State Assessment coordinates, develops, and implements the assessment program.  New York implemented CCLS as part of NCLB assessments last year. The tests primarily at issue in the opt-out movement include testing in ELA and Mathematics for grades 3-8, as it is only these assessments that incorporate CCLS at this time.

There are consequences for your school district if the district does not meet testing participation rates. NCLB requires a 95% rate for all students and subgroups or the district could lost Title I funding.

Understand Your Rights

Most school districts will respect your right to have your child decline to take the assessments.   As a matter of terminology, legally, New York State does not have a statutory opt-out provision and there exists no right to opt-out.  New York State law does not require parental consent before school districts administer building level assessments to the general population.

Consider the impact of Opting Out

Before you decide to have your child opt-out, consider the impact of that decision on your child. On the one hand, the decision may empower your child and send an important statement.

Keep in mind that the Common Core now constitutes the general curriculum in New York and, in order to advance from grade to grade and achieve a high school diploma, your child will have to progress in this curriculum.   If your child is struggling on Common Core assessments, you will need data to present to his/her teacher to get needed support or services.  School districts also need to know how students are doing in order to improve these tests, improve the curriculum and improve student performance. The school and the parents need all the evidence they can get on what is working and not working, particularly for children who are struggling in school.   If your child has a disability or you believe that your child may have a disability, it can be even more important to get this data.   The Common Core assessments have lofty aspirations and many problems but educators cannot improve the assessments without data.

Make certain that the decision to opt-out will not negatively impact your child. Understand that your child has been working toward these assessments for the year.  Telling your child not to take them may devalue their work in school.

Your child will be taking many different types of assessments for many years, such as the SAT and ACT and, possibly, tests for admission to professional schools (MCAT, LSAT).  You may prefer to have your child to learn coping skills on difficult tasks rather than opting out.   In addition, opting out of the assessments could also impact your child’s placement and services for the following year.

Before having your child opt-out, consider the following steps:

  1. Talk to your child’s teacher and the school principal about the reasons you do not want your child to take the assessments and ask about more support.
  2. Understand the consequences for your child and the school district.
  3. Make certain that opting out will not make your child more anxious by feeling singled out.

As an Alternative, Consider Advocacy:

New York State has indicated that it wishes to receive guidance and input on improving common core assessments and wants to hear from parents. The State Board of Regents has already adjusted the implementation of the CCLS in New York and will continue to do so.

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Innovative Ways of Reaching Children With Autism

April 2nd, 2014

By: Giulia Frasca, Esq., Littman Krooks LLP

There are an estimated two million people with Autism Spectrum Disorders in the United States.  Over 500,000 of those diagnosed are children.  The incidence rate of Autism increased to one in 68 children.  There is a five-to-one prevalence of Autism in boys over girls so that the incidence rate of Autism for boys is one in every 54 boys.  E ach child diagnosed with Autism and each case of Autism is unique such that there is not one particular treatment, program, or methodology that will work for all children diagnosed with Autism.  Recently, an article published in the New York Times titled “Reaching My Autistic Son Through Disney” by Ron Suskind discussed how watching Disney movies and relating to the characters in those movies helped one child diagnosed with Autism break through and communicate verbally, in writing and through art with other members of his family.

Today, school districts use several different, innovative methodologies for teaching children with Autism.  Most schools teach children with Autism using Applied Behavioral Analysis (ABA), which has been proven to work for children with the most severe cases of Autism.  ABA focuses on changing the environment around the child in order to help the child achieve a task rather than simply telling the child what to do.  ABA aims to build a direct relationship between desirable outcomes and the environment the child is in.

Another methodology called Naturalistic Teaching Strategies involves creating an environment in which children are motivated to communicate a specific need or want by, for example, placing a favorite toy on a shelf, out of reach so that the child will be motivated to ask for it.  Children with more advanced language skills will be prompted to ask a question or speak a full sentence.

Yet another, newer methodology, Social Communication, Emotional Regulation and Transactional Support (SCERTS) combines several different treatments and identifies and builds on a student’s strengths, then creates strategies to improve the student’s weaknesses.

Autism Spectrum Disorder teaching methodologies are constantly evolving in order to address the broad spectrum of needs and the different ways in which children develop.  Littman Krooks LLP’s special education attorneys strive to keep abreast of new developments in these areas in order to be the strongest advocates for families with children with Autism Spectrum Disorders.

The seventh annual World Autism Awareness Day is Tuesday, April 2, 2014. Learn more about events in your area by visiting the Autism Speaks website or visit our blog at: http://www.littmankrooks.com/blog/ Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here.

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