By Marion M. Walsh, Esq., Littman Krooks LLP

We at Littman Krooks know how challenging this time is for families. New York, along with Washington State, leads the U.S. in cases of Coronavirus (COVID-19). The pandemic will strain public resources and services for all. We do not have all the answers, as current events are unfolding, but provide information and assurance for families.

We know that school closures are occurring everywhere, due to public health concerns. The New York State Department of Education (NYSED), together with the New York State Department of Health (NYSDOH) on March 9, 2020, issued School Guidance to public school districts for planning. In addition, the CDC, on March 12 2020, issued interim CDC School Guidance to  school districts on closures. Some private schools or school districts will have to close for a certain period and many will consider providing distance learning.

Impact on Students with Disabilities

COVID-19 and the disruptions and school closure  will affect all families and cause stress and interruptions. Yet the pandemic and closures will inevitably have a disproportionate impact on students with fragile health conditions and students with disabilities. The US Department of Education has issued USDOE Guidance for help with IEP services.  Federal and state law  do require that students with disabilities continue to receive a free appropriate public education. You will need to work with your child’s providers and with your school district to ensure your child receives appropriate services and support. However, keep in mind that the USDOE Guidance states that if a school district  closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then the district would not be required to provide services to students with disabilities during that same period of time, although in some circumstances, compensatory services may be needed.  As most New York School Districts will endeavor to provide some kind of student distance learning however, the school districts that do this must ensure appropriate and accessible services for students with disabilities.

We have compiled an action/information plan for all families with  special attention to families of children or teens with disabilities or students with fragile physical or mental health conditions:

Basic Tips

• Ensure that you keep your child calm and reassured. You can review basic Health-Crisis Guidance  from the National Association of School Psychologists for how to speak to children and reassure them. Remember that your children will react to and follow both your verbal and nonverbal reactions.  Your statements about  COVID-19, current prevention efforts, and related events can either increase or decrease your children’s anxiety.  Remind your children that you and the adults at their school are there to keep them safe and healthy. This NPR comic video  may be helpful to explain the virus to students.
• Review and Follow Basic Hygiene. Review and re-enforce the importance of hand washing and important hygiene protocol with your child.  Students with intellectual disabilities may need help and reinforcement. The CDC has provided information on how hand washing can be a family activity.

• Keep as much structure at home if possible.  To the extent possible, maintain a sense of normalcy in your home while keeping expectations reasonable. Parents can ask teachers for additional homework that parents can use to ensure that the student is being academically challenged or receiving consistent academic material.  However, do not push children or teens if they seem overwhelmed.  While stressful and difficult, this can be a chance for family time and togetherness.   The closings and limited activities disrupt our routine but may give us a chance to enjoy some of the basics at home such as family game nights, conversation, good books.  Each family has its unique structure and idiosyncrasies and to the extent you can, try to figure out for your family a path to come out of this stronger and more united.

Parent Support

• Seek Flexibility with Employer if Needed.  If you work outside the home and are the primary caregiver for your child, you should seek flexibility with your employer and ask about the ability to work remotely or to take a leave of absence.  The Family Medical Leave Act, in general, protects employees in workplaces with 50 employees or more and allows unpaid leave of absence to care for family members, for up to 12 weeks, without penalty.
• Rely on Virtual Support Groups.  Parents can derive help and support from other parents in similar situations.  Reach out via social media to find support groups with similar issues to ones you are facing.  A virtual community of other parents, while not a substitute for person-to-person interaction, can help you locate resources and share experience on certain issues.

Student Services Options

• Obtain Medical Documentation for Student’s Unique Needs. If schools remain open, do not assume that your school district will automatically grant requests home bound instruction or other services as you may  need current documentation.  If your child is medically fragile or immuno-suppressed, obtain a letter from your child’s doctor and submit it to your school district to ask that home instruction, provided by the school district, begin as soon as possible. For students who cannot attend school and have medical documentation, New York Education Law  requires that home bound instruction must be available for students who reside in the district if they require it. For children with disabilities who are absent for an extended period of time because of a COVID-19 infection when the school remains open, according to USDOE Guidance, then for each child, the IEP Team must determine whether the child is available for instruction and could benefit from home bound services such as online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, to the extent available.
• Review Options for Online or Virtual Services for Your Child. Public safety protocols may limit the ability of providers or health care workers to work directly with students. For services, such as physical therapy or occupational therapy, it is not possible to obtain these services virtually. However, other services, such as home instruction or, in some circumstances, counseling, may be appropriate remotely or virtually.
• Document Missed Services. If needed and possible, you should see if providers will come to your home to provide services. If a child does not receive services during a closure, a child’s IEP team (or appropriate personnel under Section 504) must make an individualized determination whether and to what extent compensatory services may be needed, consistent with applicable requirements, including to make up for any skills that may have been lost. For any school closures or interruptions in services, document any  services your child has missed and keep records and documentation of any regression. Ask the school district to provide related make up services.
• Understand Option of Home Schooling. Home schooling is different than home bound instruction and if you are worried about your child’s health, you may consider home-schooling. New York State Home Schooling Guidance  explains that parents must file for an Individualized Home Instruction Plan New York. Home-schooled students, like students parentally placed in private school, are eligible for certain District of Location services, including related services, through an IESP. Here are other resources: Families Unschooling In New York; New York Home Educators’ Network

If Quarantined.

• Review Guidance if under Voluntary or Mandated Quarantine or Containment. Families must review Containment Guidance. Keep in mind that persons under mandatory isolation or mandatory quarantine can walk outside their house on their own property, but they must not come within six feet of neighbors or other members of the public. The Containment Guidance notes that families may need assistance with many basic necessities as well as mental health or social needs and supplies, but does not give tips on how to get this assistance.

The COVID-19 situation is evolving and new protocol may be available and required. The above tips do not constitute legal advice or any type of medical advice. Consult with your child’s doctors or providers for information on health protections for your child. If you believe that your school district is not appropriately serving your child, it is wise to consult with an attorney who specializes in education law. We at Littman Krooks are here to answer any questions, as well. Our office will be functioning through the outbreak—whether virtually or in-person– and please reach out to any of us.

Please remember that, In the past two decades, we have gone through 9/11, the tragedies and echoing repercussions of Sandy Hook and Parkland, hurricanes and other disasters as well as other defining moments. We will  persevere through this as well. We have learned that a positive, calm, rational and proactive  response to disasters and fears  can create resilience for all of us, including our children and help build a stronger society. For your children, try not to  succumb to  fear, anger, and confusion, but work to be a light to others to lead them through.

Learn more about elder law,  estate planning and special needs planning at http://www.elderlawnewyork.com  & www.littmankrooks.com. Have questions about this article? Contact us.

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Posted in Autism, Events, IEP, medicaid, New York Special Needs, Special Education Advocacy, Special Needs Trusts | Comments Off on Ten Tips for New York Families in the Wake of the Coronavirus

By Marion M. Walsh, Esq.

The United States House of Representatives, by a vote of 217 to 213, on May 4, 2017, approved legislation—called the American Health Care Act–to repeal aspects of the Affordable Care Act and replace them.   The House bill must still pass the Senate to become law.  If approved, the new legislation will impact every American citizen, particularly those who have not had insurance before, those who have pre-existing conditions and those who rely on Medicaid.  According to The New York Times, the House bill would eliminate tax penalties for people who go without health insurance. The bill would roll back state-by-state expansions of Medicaid, which covers millions of low-income Americans.  The Congressional Budget Office estimated  that the bill would cut Medicaid spending by $880 billion.  School districts will face cuts in funding and children with disabilities could receive less services.

We will keep you apprised on important developments and the changes in law will have a significant impact on vulnerable adults and children with disabilities.

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

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Posted in medicaid, New York Special Needs | Comments Off on House Passage of American Health Care Act Requires Monitoring, Attention and Advocacy
Tags: American Health Care Act, medicaid, special needs

It is of the utmost importance that families with special needs take full advantage of benefits that are available from the government and the community. Sometimes families resist accepting these benefits out of a belief that they are only intended for low-income families. While there are income and asset requirements for some programs, your family should take advantage of any benefits you are eligible for, as it is in your interests and actually honors the intent of the programs.

Raising kids is expensive, and families with children who have special needs may have additional costs, such as medical expenses, therapy, modifications to a home or vehicle, and adapted recreation or child care. The costs may seem daunting, but they are easier to handle with proper financial planning.

A special needs trust is one of the most important financial tools to consider for a special needs child. This type of trust allows you to set money aside, or receive it as a gift from a family member or settlement from insurance, without worrying that it will affect the child’s eligibility for public benefits such as Supplemental Security Income (SSI) or Medicaid.

In addition to a special needs trust, building your family’s personal savings is even more important than it is for most families. You may have to pay for therapy or other treatments. Even if you believe that certain services should be covered by insurance or provided by your school district, resources may be required to advocate for the right to those services. In addition to services needed during childhood, families will want to plan for their child’s adulthood. Once public education and its attendant benefits are no longer available, the question of where the adult with special needs will live and what he or she will do becomes paramount. Proper financial planning done as early as possible will make this process much easier, and a financial adviser can be extremely helpful in creating that plan.

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Posted in Autism, medicaid, New York Special Needs, Special Needs Trusts | Comments Off on Financial Benefits Designed to Support Families Who Have Children with Special Needs

Adults with disabilities are increasingly at risk as the U.S. considers cuts to public funding. While the debate rages on concerning how the U.S. will continue to fund Medicaid and Social Security benefits, where cuts should be made and whether the systems are at all sustainable, millions of people with disabilities rely on the programs for a significant portion of their basic needs.

According to the Henry J. Kaiser Family Foundation, as of 2009, more than 5.5 million adults with disabilities living in the U.S. have their health care covered under Medicaid. Approximately 6.9 million  individuals with disabilities get regular Social Security payments via the Supplemental Security Income program.

In addition to navigating the complex systems of medical care and education for persons with disabilities, family members often are faced with the issue of how to ensure adequate financial assets to pay for these expenses without disqualifying the person with disabilities from government benefits. Families often begin a special needs trust, which can have money placed into it on a regular basis for future needs, like a college savings plan. Others have the trust designed so that any proceeds from specific life insurance policies will be directed to the trust when they pass.

Many estate planning attorneys who specialize in special needs trusts suggest judicious planning. Rather than piece together a plan that may have significant holes, work with an experienced special needs trust attorney to help with financial planning. The family members of someone with a disability should ensure their own financial needs are also secure; if parents use all of their funds and go bankrupt, an entire family can be devastated. View the special needs trust attorney as an informational resource about other support systems; there may be outreach programs and other benefits available though Medicaid, such as art classes and drop-in programs. Work with other family members in developing a plan for trust administrators so they stay informed about plans for the special needs individual and the proper role of the administrator.

Posted in medicaid, New York Special Needs, Special Education Advocacy, Special Needs Trusts | Comments Off on Financial Security for a Family Member With Special Needs
Tags: CELA®, disabilities, estate planning attorneys, financial planning, medicaid, special needs, special needs trust attorney

The U.S. Supreme Court case Florida v. Department of Health and Human Services, which challenged the constitutionality of the Patient Protection and Affordable Care Act has been covered heavily by mainstream and online media outlets. The Court heard arguments on the case in a historical three day session March 26-28, 2012.

The U.S. Supreme Court has upheld the individual mandate and most provisions of the Affordable Care Act. A federal penalty on states not cooperating with the Medicaid expansion provision of the law was deemed unconstitutional but Chief Justice John Roberts gave Congress a constitutional antidote with his opinion.

While most news outlets have focused on the political outcome of the Court’s decision, they have failed to cover the important issue of how the ruling will affect the lives of those with special needs. Had the Court overturned the law in its entirety, people caring for loved ones with special needs would have lost access to many benefits provided by the Affordable Care Act.

Prior to the Affordable Care Act, employer plans and individual health insurance policies could exclude children 19 and under with special needs as they were often determined to be “pre-existing conditions.”

Special needs children and adults will require more medical attention in their lifetime than other individuals. The law now prohibits insurance companies from setting a maximum lifetime benefit which means special needs patients cannot lose their health coverage because of too many claims or because they have exceeded a policy limit.

For more information on the Affordable Care Act, visit www.hhs.gov or www.healthcare.gov. For information on special education advocacy, special needs planning, guardianships or transition planning, visit www.littmankrooks.com or www.specialneedsnewyork.com.

Posted in medicaid, New York Special Needs, Special Education Advocacy, Special Needs Trusts | 1 Comment on The Supreme Court’s Affordable Care Act Ruling is Good for Families that have Loved Ones with Special Needs
Tags: affordable care act, disability, florida vs. department of health and human services, health coverage, insurance policies, medicaid, patient protection and affordable care act, pre-existing conditions, special needs

Our guest blogger this week is Denise Horsford, NYC Parent Coordinator and Special Needs Parent.

Have you ever thought that having a special needs child is difficult?    You know what, you are absolutely correct.  I have found a few things   that help me relax and it doesn’t cost very much.

There are small, inexpensive things that you can do to make your life a little easier, happier and healthier.

Start simple:

• Ask for help
• Be kind and patient with yourself
• Take a hour walk in the park
• Go to the beauty parlor
• A hot bubble  bath
• A  night out with the girls to the movies
• A date night with your significant other
• Manicure and a  pedicure
• Facial or Massage
• Parent support groups
• Yoga or exercise class at the local YWCA

You will be surprised how great you can feel with implementing a few “me moments” into your life.  You can swap turns in going out with family members.  Agree to do a service or task for them if they will watch your child for an hour or two.

You must remember first and foremost, that if you do not take care of yourself, it is nearly impossible for to take care of anyone else.  Your child needs a healthy and happy parent to help support them.  There are many organizations that offer services to help you find after school and recreational programs for your child.  The service is “Medicaid Service Coordination” and there is no charge to you for their services.  They are paid directly through Medicaid.  Take advantage of the help that is available to you, there is no need to do it all alone.  You can find a listing of Medicaid Services Coordination organizations on the NYS OPWDD website.

Don’t be afraid to let go, your child will just fine with someone other than you for few hours.

Listed below are definitions of the services that are offered through Medicaid Service Coordination:

• “Respite Services”

“Respite services provide temporary relief from the demands of care giving, which helps reduce overall family stress.  This often enables families to better meet the needs of their loved one with a developmental disability. Respite can be provided in the home or out of the home, during the day, evenings or overnight.  Respite is an “indirect” service that provides relief to individuals who are responsible for the primary care and support of an individual with a developmental disability. When a family member, Family Care provider, or live-in/house-parent staff person has to deal with such things as illness, emergency, and care giver or staff Vacation, respite services can ensure that the individual’s needs are met.”

Source:  NYS OPWDD

• Parents of children with developmental disabilities are eligible to receive Medicaid Service Coordination “(MSC”) and (“Respite”).

“Medicaid Service Coordination” assists persons with developmental disabilities and their families in gaining access to services and supports appropriate to their needs. OPWDD delivers almost all service coordination through its Medicaid Service Coordination program.  MSC is provided by qualified service coordinators and uses a person-centered planning process in developing, implementing, and maintaining an Individualized Service Plan.”

Source:  NYS OPWDD

(If you would like to receive a list of Medicaid Service Coordination agencies, please contact the Parent Coordinator).

New York State Institute on Disability, (“NYSID”) offers the following services for families with developmental disabilities:

• Family Emergency Reimbursement
• Recreation/Family Outings
• Bronx Non-Camp Vacations
• Camp Reimbursement
• Respite Vouchers
• Car Service Vouchers

To receive an application or additional information, please contact NYSID directly at (212) 229-3273, (718) 494-6457 or email eliznysid@si.rr.com.  The Parent Coordinator at your child’s school also has applications available.

For information about special needs planning, special education advocacy or guardianships, visit www.specialneedsnewyork.com.

Posted in medicaid, New York Special Needs, Special Education Advocacy, Special Needs Trusts | Comments Off on Respite Services
Tags: denise horsford, medicaid, medicaid service coordinator, msc, new york state institute on disability, nys opwdd, nysid, parent coordinator, respite services ny, respite services nyc, respite services nys, special needs child, special needs parent

Many individuals are not aware that the privacy act they sign at a doctor’s office can have a big effect on their future health needs. Should a person become ill or incapacitated, and their spouse or loved one is not named as a patient’s representative, the Health Insurance Portability and Accountability Act (HIPAA) does not allow access to an individual’s medical records to unauthorized people. An experienced elder law attorney can help can individuals make sure they have the right legal documents created to prevent these issues from happening. Taking the time to create these documents early on is advised. An attorney will create a health care proxy with a HIPAA clause and a power of attorney (POA) document to establish who is the personal representative that can access medical records and make health care decisions. This is especially important if the POA is a “springing” POA that only gets used when an individual becomes incapacitated. An attorney will help make sure the right HIPAA release forms are created and disclosure of medical records will not be an issue in the years to come.

Littman Krooks LLP counsels individuals and families to plan for their health care wishes and financial matters as part of a comprehensive estate plan. Our New York City, White Plains and Fishkill estate planning attorneys and elder law attorneys are accomplished in asset preservation, trusts, and government benefits.

Posted in medicaid | Comments Off on Advance Planning Critical to Making POA and Health Care Proxy Comply with Privacy Laws

Changes to New York’s Medicaid program will take effect in December 2011 in New York City and in January 2012 for upstate residents. The changes are as follows:

–          Children ages 6-18 are now eligible for Medicaid at the same income level as younger children – 133% of the federal poverty limit. The change should decrease the need for families to move their children between Medicaid and Child Health Plus after their sixth birthday. It is viewed as a step in the direction of the simplifications required by the Affordable Care Act.

–          Medicaid recipients receiving Social Security as their only source of income will not need to renew their Medicaid cases, if their resources were below 85% of the Medicaid resource level at the last renewal or at application, whichever was later (the Medicaid resource level is $13,800 for a single person and $20,100 for a couple). SSI-related recipients should receive a notice informing them that their Medicaid coverage will continue unchanged and explaining that they do not need to respond to the mailing unless they have change to report in income, resources, health insurance or residence.

To learn more about New York special needs planning, visit www.littmankrooks.com/special-needs-planning/ or www.specialneedsnewyork.com.

Posted in medicaid | Comments Off on Medicaid Changes for December 2011

A new study finds that health care access for children with Medicaid insurance is a systematic problem. People with Medicaid as their primary insurance were more likely to be refused by a medical practice or given an appointment that was close to a month away, even when they had a pressing medical issue.

Children with Medicaid-Children’s Health Insurance Program were turned down 66 percent of the time while those with private insurance were only denied 11 percent. The study, which was recently published in The New England Journal of Medicine, used secret shoppers to call 273 specialty practices to pose as parents wanting to get their child an appointment for an important health issue like seizures, asthma, broken bones, or diabetes.
The study showed that most Medicaid patients had to wait 22 days before seeing a specialist. The root of the problem seems to be money – Medicaid will pay $99.86 for an office visit while a private insurer will pay $160. Specialists in medical centers feel under pressure to go after the higher paying insurance method, the researchers said. The study titled “Auditing Access to Specialty Care for Children with Public Insurance” was conducted in Cook County, Illinois over five months.
In a recent New York Times article, doctors from across the nation echoed the study’s findings. As states are cutting Medicaid programs and doctors are pushed to bring in more money, children with Medicaid are seen as one of the last priorities. “It’s very disturbing,” said Dr. Karin Rhodes, who co-authored the study. “As a mother, if I had a kid who was having seizures or newly diagnosed juvenile diabetes, I would want to get them in right away.”
In New York, the law firm of Littman Krooks LLP firmly believes that children with Medicaid deserve equal access to health care and quality treatment. Our New York special needs attorneys have decades of experience in courtrooms and settlements to uphold your child’s rights. To learn more, visit https://www.specialneedsnewyork.com/
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Posted in medicaid, New York Special Needs, Special Needs Trusts | Comments Off on Study Finds Health care Access Greatly Compromised for Children with Medicaid