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.

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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

By Marion Walsh, Esq., & Sandi Rosenbaum

Several different diplomas and credentials are awarded to students with disabilities who complete high school in New York State. Students and their parents need to be aware of the differences between these diplomas and credentials, and how they can affect one’s ability to pursue higher learning and other opportunities.

Regents Diploma:

In New York State, a standard high school diploma is called a Regents Diploma. This is the only diploma available to students without disabilities and is earned by most students with disabilities as well. Students must complete the required high school credits and pass 5 required Regents exams with a score of 65 or higher. A Regents Diploma with Advanced Designation is awarded to students who score 65 or higher on 8 or 9 Regents exams and is desired by many competitive colleges and universities.

Local Diploma:

To minimize the impact of high-stakes testing on students with disabilities, New York State requires districts to offer a local diploma to students with an individualized education program or section 504 Accommodation Plan under the so-called “Safety Net” provisions. Students may earn a local diploma if they score 55 or higher on the 5 required Regents exams. (They still need to earn all the credits required to graduate.) Further, even a grade of 45 on one or two Regents exams (other than English or math) can qualify a student for a local diploma if the student scores 65 or higher on other Regents exams under the so-called “compensatory option”.

Although the Regents diploma is preferred by college admissions departments, community colleges and some other institutions accept students with a local diploma. The local diploma is also accepted by the armed forces, trade unions, and for all similar opportunities for which a high school diploma is required.

Even with the safety net options, some students will not be capable of earning a local diploma. Two other types of credentials are awarded to students with disabilities. These credentials are not high school diplomas and thus do not create eligibility for traditional higher education degree programs. However, alternative programs such as Think College do offer opportunities for students who are not eligible for degree programs to participate in campus and academic life.

Career Development & Occupational Studies (CDOS) Commencement Credential:

Some students with disabilities may receive a Career Development and Occupational Studies (CDOS) Commencement Credential. This credential signifies substantial high school level Career and Technical Education and was designed as a supplement to a Regents or local diploma. However, students with disabilities who complete its specialized requirements without achieving the required scores on Regents exams may earn the CDOS even without meeting requirements for a diploma.

Skills and Achievement Commencement Credential (SACC):

Students with severe disabilities who attend school for 12 years or more and are assessed using the New York State Alternate Assessment (NYSSA) graduate with the Skills and Achievement Commencement (SACC) credential. The SACC indicates the student’s functional level of achievement academically and in terms of occupational and career development.

Many students with disabilities are able to perform well academically in high school and advance their education at a college or university. The path a student takes depends on individual circumstances and being aware of what options are available.

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Posted in Autism, New York Special Needs, Special Education Advocacy | Comments Off on Diplomas and Credentials Available to Students with Disabilities and their Impact on Eligibility for Higher Education and Other Opportunities
Tags: cdos, nyssa, regents diploma, sacc, section 504