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Summer Extended School Year Programs for Children with Disabilities

June 30th, 2015

By Marion M. Walsh, Esq.

The end of the school year can bring relief for many students and parents, but also uncertainty and trepidation about the summer months. The new school year technically beings on July 1, 2015, although most students will not begin school until September. Many students do regress academically, behaviorally or emotionally during the summer months and require Extended School Year (“ESY”) services over the summer. Littman Krooks

Only certain students with disabilities qualify for ESY or summer services, which generally run for six weeks from July 6th through approximately August 14th this year, although some districts may have different dates and shorter programs. The Individuals with Disabilities Education Act and New York State Regulations technically allow Extended School Year services for students likely to experience substantial regression, as measured by whether the student has regressed academically during breaks during the school year. The CSE may allow ESY services for students who regress emotionally or behaviorally, if appropriate. Specifically, the law provides that the CSE must consider ESY services to prevent substantial regression for students:

• In special classes with management needs that are highly intensive and require a high degree of individualized attention;
• in special classes with severe multiple disabilities, whose programs consist primarily of habilitation and treatment
• who are recommended for home and/or hospital instruction whose special education needs are determined to be highly intensive and require a high degree of individualized attention or who have severe multiple disabilities;
• whose needs are so severe that they can be met only in a seven-day residential program; or
• receiving other special education services who, because of their disabilities, exhibit the need for twelve-month special service and/or program in order to prevent substantial regression.

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An ESY program is very different from summer school which high schools may offer for typical students. Summer school credit recovery programs focus on the needs of students who have failed classes or need support during the summer months.

For students who are in summer ESY programs, it is important for parents to monitor closely and take immediate steps to rectify any concerns, as the six weeks passes quickly . Too often, school districts throw ESY programs together too quickly and do not ensure appropriate groupings or activities. Be sure to monitor your child’s progress and put all complaints in writing.

Here are some questions our parents have asked about summer programs:

Q: My child’s program only has very disabled peers and looks very different from her school year program. Is this appropriate?
A: Your child’s summer program should allow her to progress in the Least Restrictive Environment. Consider what type of public program your child needs to have interaction with non-disabled peers. The CSE should offer a continuum of placements and the program should have essentially the same level of inclusion as his or her school year program. The Second Circuit Court of Appeals in 2014 found that an ESY program was substantively inadequate, as the CSE failed to consider an appropriate continuum of alternative ESY placements and place the student in his LRE on that continuum. The District claimed the program was appropriate and noted that it only offered certain limited programs in the summer months. But the Court held that: “a child’s LRE is primarily defined by the nature of the child’s disabilities rather than by the placements that the school district chooses to offer.” T.M. v. Cornwall Central School District

Q: How can I monitor my child’s progress?

A: Work closely with your child’s teacher to monitor the work and how he is doing. Pay close attention to the level of supervision and monitoring. Make sure any concerns about bullying are addressed promptly. Here are some questions to start with, in a dialogue with your child’s teacher:

• Is my child working on his or her goals?
• Does this class provide an appropriate group of students?
• Is the program addressing the specific areas of weakness?
• Are staff appropriately trained on her area of disability?
• Is there adequate supervision?
• What about field trips?

Q: My child needs a break from school and we have long family vacations. Can I pull her out of the summer program?

Speak with the CSE and the District and notify staff that you are considering removing your child from the summer program because of needed family time or simply down time. You may also decide that your child needs a recreational program to develop social skills. Ask if you think removing her will have an impact or affect her progress. If your child is in a school district program, it is unlikely that this will cause difficulties. However, do keep in mind if you do not access the summer program for your child and complain about lack of progress or regression in the fall, the CSE may consider the fact that she did not attend the summer program. Also, if your child is in a specialized school, this will probably not be appropriate and the school may state attendance is mandatory. If your child is in a twelve month residential program, this will not be an option.

Q: My child’s CSE in May stated my child did not regress during breaks, but I see significant regression. They had no data. What can I do?

Whenever you disagree with any decision of a CSE, you have the right to file for due progress. While it is late in the year to file for summer, you may file for compensatory services. It’s best to talk to an attorney about the options. Also, in the next school year, be sure to ask the teachers before each break to measure regression. Keep your own records as well, as to basic skills your child has before each break and after.
Q: I do not believe that my child’s ESY program is appropriate and am sending him to a private camp. Can I seek reimbursement from the school district?

Yes. You do have the right to file for due process and may seek reimbursement for private services. If the private summer program you chose offered individually tailored special education services, you may prevail in a claim. Keep in mind that it is the law does not allow recovery for camping and recreation programs, however. A hearing officer could order reimbursement if: 1) there has been a denial of a free appropriate public education; 2) the private services are appropriate and 3) equitable considerations support the claim.
In short, ESY services represent an important aspect of your child’s special education program. If you have questions or do not believe the program is appropriate, it is best to speak to an experienced special education attorney about your child’s case.

 

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.


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Trusts and Your Heir with Special Needs

June 16th, 2015

Trusts are a common estate planning tool and are used to keep assets out of a probated estate or to reduce an estate tax burden. Trusts can also be used to protect one’s heirs. There are instances when it may not be in a person’s own best interests to inherit funds directly.

A direct inheritance may prove detrimental in the case of an heir with special needs. The families of individuals with special needs have often arranged their finances such that the individual will be eligible for Supplemental Security Income, Medicaid and other public benefits. These programs are needs-based, which means that if the individual’s income or assets rise above a certain level, the benefits could be lost. In a case like this, a direct inheritance could do more harm than good, and a solution may be a special needs trust or supplemental needs trust, which can be used to provide for certain supplemental needs of an individual while preserving their eligibility for benefits. Littman Krooks

In other cases, a person planning their estate may wish to consider certain circumstances in the lives of their heirs that could put an inheritance at risk. This may include a variety of situations. Some heirs may be unlikely to be able to manage money in their own best interests, due to their youth, their spending habits, or circumstances such as a substance abuse issue. There may be reasons that an heir is likely to become a defendant in a lawsuit. In other cases, if an heir divorces, then the divorced spouse may claim a share of assets inherited directly. In the case of a second marriage when there are children from a prior marriage, a person planning their estate may wish to ensure that their grandchildren are provided for, not their child’s second spouse.

A qualified estate planning attorney can design an asset protection trust or spendthrift trust to protect your family’s assets against such risks. The details of the trust and its power to protect assets depend on individual circumstances and state and federal law. Generally, a trust can be used to restrict a beneficiary’s ability to assign his or her interest in the trust to another person and restrict the rights of creditors to reach the assets of the trust. However, it is important to recognize that, depending on applicable law, the trust assets may be able to be reached to satisfy certain obligations, such as child support or taxes. To learn more, meet with an estate planning attorney at Littman Krooks.

 

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.


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How Much Does It Cost Appoint a Guardian?

June 2nd, 2015

By Bernard A. Krooks, Esq.

Clients often ask us how much it will cost to get a guardian appointed for a parent or other relative. It is hard to answer with precision, but it is a fair question. Let us see if we can give you some guidance.

First, let’s not forget that you should be doing everything possible to ensure that a guardianship does not become necessary.  What do I mean by that?  Make sure you and your loved ones have executed advance health care and financial directives such as a health care proxy, living will and durable power of attorney.  In addition, you should discuss your wishes with the people you appoint as your agents under these documents.  By taking these steps you will reduce the likelihood that a guardianship will ever become necessary.  Nevertheless, sometimes a guardianship becomes necessary even if you have taken care of your estate planning in advance.  Thus, this article to discuss the fees involved.  Keep in mind that guardianship procedures differ state by state (and sometimes even among different counties in the same state) and we are talking only about downstate New York below. couple_lawyer_blog

Also, we are assuming that there is no wild peculiarity. If you file a guardianship petition as to your mother and your brother hires an attorney to contest the guardianship in any way, then all bets are off as to what the guardianship will cost.  Among other things, your brother may claim that mom does not need a guardian or he may disagree with you as to who the guardian should be.  This is called a contested guardianship and there is no way to predict the total costs involved.  Suffice to say that it will cost much more than an uncontested guardianship proceeding.

And finally, we are only talking about the cost of getting you (or someone) appointed as guardian. You may need legal assistance after the appointment, as well (in fact, you probably will). That will depend on the complexity of your family member’s guardianship — and that can increase for a variety of reasons.

Now that we have gotten all the disclaimers out of the way, here’s a summary of the expected costs:
1.    Court filing fees and process server fees.  Assume about $500 here. Most of that is the filing fee itself, which has to be paid before things get underway.

2.    Your lawyer’s fees. If you hire an experienced guardianship law firm to represent you, your legal fees are likely to be several thousand dollars for an uncontested guardianship. This fee will be your responsibility regardless of how the proceeding turns out. It can (subject to court approval) be reimbursed from your family member’s resources if you are successful, but most lawyers will expect to be paid up front out of your funds, or soon after proceedings are initiated, and not wait until you have been appointed and can get access to the parent’s or other relative’s funds.

3.    The court-appointed lawyer’s fees. Unless your family member already has a lawyer (and you can’t select one for him or her — it would have to be someone they already had a relationship with or they hired after the proceeding began) the court, in some cases, will appoint an attorney to represent them. The lawyers who accept these appointments come from a rotating list, and they mostly charge their regular hourly rates. The bottom line: don’t be at all surprised if the court-appointed lawyer’s bill exceeds a few thousand dollars.   Fortunately, in most uncontested cases, there is no need for a court-appointed lawyer.

4.    The court-appointed investigator; otherwise known as the court evaluator. Another list of court appointees yields someone who has a social work, medical or legal background, and who is appointed to report to the court about your family member’s circumstances. In most cases, this person is a lawyer despite the fact that this person does not perform a legal function.  The cost for that investigation and report is frequently in the range of a couple to a few thousand dollars.

5.    Bond premiums are due if you (or someone else) are appointed guardian of the property. The premium for this insurance policy can be paid from your family member’s assets. The cost of the bond varies by the size of the estate being managed. Surety bonds can be difficult to purchase at any price, and the availability of bonding companies is often limited.

Add all that up and you can see that the cost of getting a guardian appointed will probably exceed several thousand dollars and can quickly grow to more like $10,000. And remember: that only gets you to the starting point. Additional costs for lawyers, accountants and court proceedings will add more to that figure over the years after your appointment. All the more reason to make sure you and your family are doing everything possible to avoiding the necessity of a guardianship proceeding.

 

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.


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