By 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 Adult

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.

2. 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.

3. 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.

4. 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.

5. 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.

Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here.

Posted in New York Special Needs, Special Education Advocacy | Comments Off on Five Tips on Being a Successful Advocate for Your Child in College
Tags: age of majority, college, FAPE, FERPA, guardianship, HIPAA, section 504

Adults 21 and over with learning disabilities may face discrimination or lack of access to services in college or the workplace. These individuals must understand their legal rights and responsibilities.

In College:

Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act protect adults with learning disabilities who attend college. The laws apply to public institutions and private colleges that receive federal funding and mandate that students with disabilities receive reasonable accommodations. Examples of accommodations include the use of a tape recorder or note taker, or additional time to complete examinations.

In the Workplace:

The Americans with Disabilities Act protects people with disabilities, including learning disabilities, from discrimination in regard to applications, hiring, firing, compensation, advancement and other employment terms. The ADA applies to employers with 15 or more workers. Employers must make reasonable accommodations to the known disability of a qualified employee or applicant, if it would not cause the business an “undue hardship.” Workplace accommodations may include additional training or supervisor feedback, or a quiet workspace.

If individuals with learning disabilities want accommodations, then they have the responsibility of disclosing their disability and providing documentation, in addition to requesting the accommodations that they want. Adults will probably need to provide documentation of their disability from a doctor. This can be done in a confidential meeting with a college disability services coordinator or with an employer. Documentation may consist of a letter from a doctor or other treating professional.

One must also remember that these protections apply to people who are “otherwise qualified” for the college program or employment position in question. One may have to prove that one is qualified. Also, the legal protections against discrimination do not act as an absolute entitlement to a job or a college education.

Most schools and large employers know of the law and are willing to provide reasonable accommodations to qualified people with disabilities, so it may only be necessary to identify oneself as a person with a learning disability and request the necessary accommodations. If a school or employer accommodations are denied, then these rights are enforceable through the legal process, but it is important to evaluate one’s individual circumstances with the help of a qualified attorney.

Posted in Autism, IEP, Special Education Advocacy | Comments Off on The Rights and Responsibilities of an Adult with a Learning Disability
Tags: Americans with Disabilities Act, college, learning disability, section 504

Young people with special needs may be looking forward to becoming full-time college students, or they may wish to take just a course or two for a specific purpose or to see whether college is the right choice for them. However, non-degree-seeking students are not eligible for federal student aid, so students and their parents may need to consider other methods of paying for college expenses. A 529 plan can be a good option.

New York’s 529 College Savings Program allows one to save for oneself or for a child, grandchild or friend. Funds can be used at eligible two- or four-year colleges or vocational schools anywhere in the country, for tuition, books and certain housing and food expenses. Qualified withdrawals are federally tax-free and earnings grow federally tax-deferred. Additionally, up to $5,000 (or $10,000 for married couples filing jointly) in contributions may be deducted from one’s New York state tax return. A range of stock investments is available, managed by Vanguard.

The additional benefit of 529 plans is that the funds may be used by students who are only taking a class or two and therefore not eligible for federal student aid. Students should check to be sure the institution where they plan to study qualifies as one where students can use 529 funds, and they should check with the school about their status: institutions may have different rules regarding undeclared majors or half-time status that affect eligibility for student aid.

Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here.

Posted in New York Special Needs | Comments Off on How to Use College Savings to Pay for Classes Not Covered by Financial Aid
Tags: 529 plans, college, college savings plans, college students, financial aid, NY 529 College Savings Program, students with special needs

By Marion M. Walsh, Esq.
The beginning of college or other post-secondary school represents an exciting and emotional time for any parent, filled with great pride but also great concern.  For students with disabilities, the emotions are amplified, as many parents wonder if their children are sufficiently prepared and ready to succeed in college.

With careful attention to this transition, parents can act as partners with their children without usurping and controlling the process.   Parents should understand their legal rights and the rights of their children to help the process go smoothly.

Know Your Parental Rights to Receive Information
As a general rule, pursuant to the Family Education Rights and Privacy Act (“FERPA”), the right to access educational records transfers from parents to “eligible students” at age 18.  Many parents and even some colleges believe that this means that parents have no right to receive information or educational or records without student consent.  Many colleges, as a general practice, will not give parents information or educational records about their children.  However, if you claim your child as a dependent on your tax return, as most parents do for college students, FERPA allows your student’s college to release student records and information to you, whether or not your child consents.

So if your student’s college resists providing information, let them know your child if financially dependent and, if necessary, you can provide your tax returns.
Encourage Your Child to Self-Advocate
Parents must help their children advocate for themselves. Ideally, students should have developed this skill in high school as part of transition services on their IEP, but many do not develop this skill by high school graduation.
If your child has not developed the skill of self-advocacy, there is still time.  Your student must know his or her strengths and areas of need and understand his or her legal rights. You can ask your student’s advisor to work with your child to help him or her self-advocate and explain the importance.
How much should you advocate for your college student? Every student is different. For students with disabilities initially adjusting to college, some parental advocacy is appropriate to get students settled. But ultimately, your goal should be to ensure your child understands his or her legal rights and can advocate.

Understand Your College Student’s Rights
Although colleges and universities do not have to comply with the Individuals with Disabilities Education Act and develop IEPs or provide a free and appropriate public education, just about every institution must comply with Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.   This means that they must offer equal opportunity and access to opportunities for students with disabilities, and offer programs and services on the same basis as to non-disabled students. Specifically, Section 504 of the Rehabilitation Act provides, in relevant part that, individuals with disabilities shall not “be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” Students with disabilities are entitled to reasonable accommodations and services, but your child will have to initiate the request for accommodations or services and provide documentation.
Your student’s college should have a Disabilities Service Office and publish important information on student rights. The Office for Civil Rights has put together guidance written specifically for college students with disabilities and has also published important information on auxiliary aids and services.
Parents of High School Seniors
In a future entry, we will provide guidance for parents of students with disabilities in high school, preparing for college, to ensure your child is receiving appropriate transition services.

For more information visit www.specialneedsnewyork.com.

Posted in New York Special Needs | Comments Off on Understand Legal Rights to Assist Students with Disabilities Entering College
Tags: college, disabilities, legal rights, transition, university

For parents, the cost of college is a big consideration in financial planning.  One option to help with college savings is a 529 plan, but it is important to understand the risks and benefits before getting started.

The 529 plan is named after the section of the Internal Revenue Code that describes it, and the ability to save on federal income tax is one of its prime advantages.  When you take advantage of a 529 plan, you are creating a college savings investment account, from which money can later be withdrawn for tuition, books or other expenses related to higher education, tax-free.

In New York, the 529 College Savings Program Direct Plan is administered by Upromise Investments and the Vanguard investment company.  Investors may open an account with as little as $25, and can invest for the benefit of a child, grandchild or even for themselves.  Vanguard manages the investment portfolio and charges a fee of 0.17 percent of account assets annually.

Earnings are federally deferred and can be withdrawn tax-free for the education expenses of the beneficiary.  In New York, investors can also deduct up to $5,000 in contributions to the 529 plan from their state income taxes.  Contributions can be made to the plan through an automatic payment plan or payroll deduction, as well as by check or wire transfer.

Of course, investments are not guaranteed, and depending on the performance of the stock portfolio, it is possible to lose money with a 529 plan.  Contributors have the ability to manage their own portfolio, but parents should consider the inherent risk in market investments before choosing a 529 plan.

For more information, visit www.littmankrooks.com or www.specialneedsnewyork.com.

Posted in Special Needs Trusts | Comments Off on Parents Planning for College Expenses Should Consider a 529 Plan
Tags: 529 plan, children, college, college savings, federal income tax, portfolio

By Marion M. Walsh, Esq.

The beginning of college or other post-secondary school represents an exciting and emotional time for any parent, filled with great pride but also great concern.  For students with disabilities, the emotions are amplified, as many parents wonder if their children are sufficiently prepared and ready to succeed in college.

With careful attention to this transition, parents can act as partners with their children without usurping and controlling the process.   Parents should understand their legal rights and the rights of their children to help the process go smoothly.

Know Your Parental Rights to Receive Information
As a general rule, pursuant to the Family Education Rights and Privacy Act (“FERPA”), the right to access educational records transfers from parents to “eligible students” at age 18.  Many parents and even some colleges believe that this means that parents have no right to receive information or educational or records without student consent.  Many colleges, as a general practice, will not give parents information or educational records about their children.  However, if you claim your child as a dependent on your tax return, as most parents do for college students, FERPA allows your student’s college to release student records and information to you, whether or not your child consents. 34 CFR  §99(a)(8).

So if your student’s college resists providing information, let them know your child if financially dependent and, if necessary, you can provide your tax returns.

Encourage Your Child to Self-Advocate
Parents must help their children advocate for themselves. Ideally, students should have developed this skill in high school as part of transition services on their IEP, but many do not develop this skill by high school graduation. 

If your child has not developed the skill of self-advocacy, there is still time.  Your student must know his or her strengths and areas of need and understand his or her legal rights. You can ask your student’s advisor to work with your child to help him or her self-advocate and explain the importance.

How much should you advocate for your college student? Every student is different. For students with disabilities initially adjusting to college, some parental advocacy is appropriate to get students settled. But ultimately, your goal should be to ensure your child understands his or her legal rights and can advocate.

Understand Your College Student’s Rights
Although colleges and universities do not have to comply with the Individuals with Disabilities Education Act and develop IEPs or provide a free and appropriate public education, just about every institution must comply with Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.   This means that they must offer equal opportunity and access to opportunities for students with disabilities, and offer programs and services on the same basis as to non-disabled students. Specifically, Section 504 of the Rehabilitation Act provides, in relevant part that, individuals with disabilities shall not “be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” Students with disabilities are entitled to reasonable accommodations and services, but your child will have to initiate the request for accommodations or services and provide documentation.

Your student’s college should have a Disabilities Service Office and publish important information on student rights. The Office for Civil Rights has put together guidance written specifically for college students with disabilities and has also published important information on auxiliary aids and services.

Parents of High School Seniors

In a future entry, we will provide guidance for parents of students with disabilities in high school, preparing for college, to ensure your child is receiving appropriate transition services.

Posted in New York Special Needs, Special Education Advocacy | Comments Off on Understand Legal Rights to Assist Students with Disabilities Entering College
Tags: college, FAPE, transition, transition services