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The Family and Medical Leave Act (FMLA) includes siblings for job-protected Leave

September 21st, 2015

Siblings are included in the protections of the Family and Medical Leave Act (FMLA) in some circumstances.

Littman Kroooks Special Needs PlanningThe FMLA, enacted in 1993, provides for eligible workers to take unpaid leave for up to 12 workweeks per year because of their own serious health condition or to care for their spouse, parent or child with a serious health condition. Siblings have never been explicitly included in these protections. However, the Department of Labor Wage and Hour Division, which implements the FMLA, has clarified that siblings are protected in certain cases.

The Department has clarified the definition of “son or daughter” in two ways that benefit families who work together to care for a family member with a disability:

First, the Department has clarified that “son or daughter” includes both children under the age of 18, and adult children who are incapable of self care because of a physical or mental disability.

Second, “son or daughter” has been clarified by the Department as including individuals for whom the worker seeking leave is acting “in loco parentis,” which means “in the place of a parent.” This may include siblings who have day-to-day responsibility for caring for the child or adult with a disability.

With these detailed updates from the Department of Labor, it is clear that otherwise-eligible employees who are siblings with the day-to-day responsibility of caring for a brother or sister, including an adult brother or sister incapable of self-care due to a disability, are protected under the FMLA when they must take leave from work to care for their sibling.

 

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


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Five Tips on Being a Successful Advocate for Your Child in College

September 14th, 2015

grad_hat_books_cropBy Marion M. Walsh, Esq.

This September, many parents have dropped their children off for the first time at college and are adjusting to a new type of parenting and advocacy.  For all parents, particularly parents of students with disabilities, the transition brings great pride, but also a significant amount of concern and worry. By taking careful steps, you can ensure that you remain an effective advocate in your new capacity.

The transition from youth to adulthood brings important legal changes that all parents must know how to navigate when continuing to advocate for your child.   When your child turns 18, absent a guardianship, he or she becomes an adult and important rights transfer.  Most states, including New York, set the age of majority at 18.  This transfer has significant legal consequences.  Absent a guardianship, which is generally not appropriate for a student attending college, an adult who is not incapacitated has the right to make educational, medical and most other decisions for himself.  So, for example, if your child decides not to seek accommodations for his or her disability, you must respect this right.

This does not mean you have no role in your child’s education, but your child is driving all decisions and you must know what to expect.   Once the student is 18 parents are no longer automatically part of the process or are even apprised of progress, unless the student chooses to include them.

As you move forward for the next year, you must keep in mind these important legal changes, particularly if your child has a disability.

Five Tips for Transitioning to the Advocate of a Young AdultLittman Krooks special needs

  1. Assist Your Child in Advocating, but Do Not Act as the Primary Advocate.

Remember, you are no longer your child’s primary advocate.  The advocacy role must change to your child.  Thus, ensure that your student has all the information he or she needs to access needed accommodations or care. Make sure your student registers with the Office of Disabilities on campus.However, if your student chooses to not disclose a disability or seek accommodations, this represents his or her decision and you can no longer require him or her receive accommodations or services.  You should not call professors to ask for extra help for your child you cannot require your child to be hospitalized, even in a crisis, unless he or she is a danger to himself/herself or others.  Parents act as supporters but are no longer the primary decision makers for your child.

  1. Understand Different Legal Obligations of College.

You must understand the different legal rights of individuals after leaving public school, as an important first step.   As most are aware, if your child has graduated or aged out of special education services,  Section 504 of the Rehabilitation Act and the Americans with Disabilities Act only protect students from discrimination, but do not require affirmative services.  If your child received special education services under the Individuals with Disabilities Education Act (IDEA),  these services only extend through the school year in which the child turns 21 or graduates  –  whichever comes sooner (although you do still retain parental rights to advocate for past services with your school district).

Significantly, after high school, colleges are no longer required to provide a FAPE.  The post secondary school is only required to provide appropriate academic adjustments as necessary to ensure that it does not discriminate on the basis of disability. The appropriate academic adjustments must be determined based on the student’s disability and individual needs.    Academic adjustments may include auxiliary aids and services, as well as modifications to academic requirements as necessary to ensure equal educational opportunity. In addition, the college does not have to make adjustments that would fundamentally alter the nature of a service, program, or activity, or that would result in an undue financial or administrative burden. A college does not have to provide personal attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature, such as tutoring and typing.

  1. Ensure that Your Child Signs FERPA and HIPAA Authorizations. 

The Family Educational Rights and Privacy Act of 1974 (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) protect privacy and require access to records.  These rights of access and privacy transfer to your student at 18 years of age.    FERPA rights transfer and a college will not send you records upon your request or speak to you unless your child has signed consent or another exception applies.   For example, if you can show the student is financially dependent with a tax return, the college has the obligation to share information with you.  Even with the consent, you will not automatically receive grades and records; you must request such records.  HIPAA rights transfer, and student consent will be required if the parties are seeking medical records from a physician or therapist.

Ensure that your child has signed FERPA and HIPAA waivers so you may obtain records and speak to school or hospital staff.  Make sure that you are familiar with the school’s policy.

  1. Have Power of Attorney and Health Care Proxy Signed.

A Power of Attorney gives you the right to act on your child’s behalf in case your child becomes incapacitated.  This form represents an important tool to have when your child is in college and, in particular, if your child is living away from home.   In addition, it is best to have a Health Care Proxy and Advanced Directives signed as soon as possible, so that you can step in and make important medical or legal decisions, if your child becomes incapacitated at college.   Any adult must prepare for the unexpected.  You can talk to an experienced attorney about having your child sign a Power of Attorney, Health Care Proxy and Advanced Directives.

  1. Remain an Involved Parent.

The transition to the parent of an adult does not mean that you cannot remain involved in your child’s life. Particularly if you are financially responsible, you have the right as a parent to set expectations and rules for how your child communicates and performs.  Parent weekends represent an important way to connect and you can join a parent networking group.  While it is unreasonable to expect direct communications with your child’s teachers, once you have the FERPA form signed, you may contact a dean about any concerns and ask for an appropriate amount of support or monitoring.

 

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


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