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Legally Speaking

Posted by on May 10, 2017 in From Our Team- Blog | Comments Off on Legally Speaking

Scott H. Wolpert, currently a partner at Timoney Knox, LLP, has been with the firm since 1992. Mr. Wolpert has dedicated most of his career to the area of special education and has extensive experience handling legal issues involving schools and student rights. In addition to his work and educational advocacy experience, Mr. Wolpert is also active with many charitable organizations, and served as a mock trial coach through the Pennsylvania Bar Association for eleven years. Mr. Wolpert holds a bachelor’s degree in political science from Ursinus College, and earned his law degree from the University of Richmond School of Law.

On March 22, 2017, the U.S. Supreme Court issued a unanimous decision in Endrew F. v. Douglas County School District regarding the appropriate level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”).

Thirty-five years ago, the Supreme Court issued the landmark Rowley decision, which interpreted the IDEA’s FAPE requirement to mean that Individualized Education Programs (“IEPs”) must be reasonably calculated to provide “some educational benefit” to students with disabilities. Until the Endrew F. decision, the Supreme Court had not directly revisited the standard in Rowley or addressed what level of benefit was required for an IEP to be deemed “appropriate” under the IDEA. This lack of guidance resulted in a split among circuit courts regarding what exactly was required, with several lower federal courts concluding that a benefit that is “merely more than de minimis” is sufficient and others utilizing a more rigorous standard.

In Endrew F., the two parties argued starkly different positions on what the standard should be – with the parents interpreting FAPE to mean “opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities” and the school arguing that a FAPE meant “some educational benefit” or “merely more than de minimis.” The Supreme Court ultimately rejected both positions.

The Endrew F. Court reiterated the standard used in Rowley – that, for various students, a FAPE requires that an IEP be reasonably calculated to permit advancement through the general education curriculum and to enable the child to “achieve advancement from grade to grade.” The Endrew F. Court, however, acknowledged that this standard was not reasonable for all children with disabilities. The Court ruled that in order for a school to meet the substantive obligation under the IDEA, the “educational program must be appropriately ambitious in light of the child’s circumstances.” The Supreme Court declined to adopt a bright-line test and stated that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” The Court recognized that the FAPE standard is “markedly more demanding than the ‘merely more than de minimis’ test.” The Court rejected the idea that students with special needs are only entitled to services designed to help them achieve the bare minimum amount of progress. This unanimous decision recognizes the importance of the unique needs and potential of children with disabilities and is a positive step in fulfilling the promise of the IDEA.

 

Special Needs Planning – What you should know

Posted by on May 10, 2017 in From Our Team- Blog | Comments Off on Special Needs Planning – What you should know

The author of this article, Frank S. Hennessey is a long-time member of the Board of Directors of PLAN of PA and the Co-Founder of Premier Planning Group.
What Do You Need to Know About Special Needs Planning?

Special Needs Planning is a support to families who have family members with special needs. There are multiple laws, requirements, and regulations which must be understood and reviewed in reference to the specific concerns of each individual within the context of his/her unique family dynamics.

Proper planning is intended to assure that the person is provided for once his parents/caregivers become disabled or die. This service is not only beneficial for a minor or an adult child, but also for dependent parents or other relatives. The abilities and challenges of the individual in need determine the required level (and cost) of care. Each situation is unique and must be planned for on an individual basis.

Even when other members of the family are willing to assume caregiver duties, it is still important to provide for asset management. Either a testamentary or living trust can serve this need. Such a trust, sometimes called a “supplemental needs trust,” should: (1) appoint a steward of the person’s property and money; (2) select a guardian; (3) set out instructions on how the person should be cared for; (4) ensure, to the extent possible, that the person will not lose payments or benefits from government agencies; (5)integrate the rust with the remainder of the parent’s estate plan (e.g., achieve equity among family members).

Often family dynamics are a significant consideration. Survivorship life insurance on both parents frequently provides a cost-efficient means of funding a trust upon the deaths of both parents. Individual insurance on the primary caregiver may be more appropriate when one parent provides most of the care. Disability income insurance on a working parent should also be considered.

During the course of his/her lifetime, a disabled person may be eligible for Social Security Disability Income (SSD), Supplemental Security Income (SSI), Medicare, and Medicaid. A Special Needs Trust is intended to supplement, not replace, these government programs.

Eligibility for government assistance can be negatively affected by the disabled child’s assets (e.g., a single disabled person with SSI benefits cannot own more than $2K in cash and liquid assets). Even when a trust consists of third party assets, the discretionary powers of the trustee must be carefully limited. Without tight fiduciary control, assets may be viewed as “available” to the person even within a Special Needs Trust. However, the federal Medicaid statute ensures that a trust established with the assets of a third party, such as a parent, is not considered “available” to the trust beneficiary.

Special Needs Planning may also affect other estate planning techniques. For example, ‘Crummey Withdrawal Power’ allows a person to receive a gift that would other wise be ineligible for gift-tax exclusion, and change it into one that is eligible. However, under federal law, a Medicaid recipient cannot refuse a gift. These two regulations generally mean that a disabled child should not be given Crummey Withdrawal Powers, since his failure to make a withdrawal could jeopardize his Medicaid eligibility.

These concerns are only some of the dynamics and considerations discussed and weighed between a family and their Special Needs Planner.  The Family—Planner relationship should be based in your own ability to talk to your planner and your confidence that she or he understands: (1) the unique realities in the person with special needs’ life; (2) within the context of your family dynamics; (3) as well as the knowledge this person possesses about regulations, requirements and laws surrounding Special Needs Planning.

A Month of Mondays

Posted by on Feb 3, 2016 in From Our Team- Blog | Comments Off on A Month of Mondays

Christy Holland, MA Executive Director

Christy Holland, MA
Executive Director

Typically, the new calendar year is the time for resolutions and fresh starts. Sometime around now and the end of February dejection can hit when the “New Year Fervor” wears down. We may become disheartened that the reality of 2016 is not much different from how we felt in 2015. In January we’re catching up on everything we put off in December until “after the new year.” My former husband calls January a Month of Mondays. By this, he’s referring to the fact that there’s not that much to look forward to in the near future. To some extent, we experience let down after the hustle and bustle of the various end of year holidays. To boot, the weather is often bleak or challenging and after two feet of snow, hibernation sounds like a better idea than getting ahead on goals!

As support persons to those with Special Needs, these dynamics are even more severe. Each day holds unforeseen hurdles. Planning is in our sights, but just out of our reach. It seems nearly impossible to find time to:

  • Hire a lawyer to create a will or Special Needs Trust
  • Find a trustee who understands your family and will partner with
    family members to support your loved one with Special Needs.
  • Meet with a financial advisor to find out creative ways to fund a
    trust for your loved one.
  • Set up Care Management services with professionals you can trust to
    locate resources and/or cover some responsibilities to ease your

With all of the doctor appointments, meetings, family needs, running of the household, and possibly even fitting in a personal obligation or two… you never quite get around to these important Planning To-Do items.

So, if you are at all like me and finding yourself a bit dejected over the list of things you said you were going to do “in the new year”… If you are feeling a little overwhelmed with everything that needs to be done on a daily basis – let alone these Planning To-Do items that must get done… Or if it seems that there is just not time to reach out and even if there was, you’re a bit stumped as to where to start… it may help to talk it through with someone outside of your immediate circle who is central in the field of Special Needs. Maybe it would help to give us a call.

PLAN of PA was started by families who feel very similar to yours. We exist to provide support, planning and direction for you and your family. Our core services are Care Management and Administration of Special Needs Trusts, but we are connected to a whole host of legal professionals, financial advisors, and social service providers who can support you to do what needs to get done.

Happy Groundhog Day 2016!

The good news is that we have just made it through the “Month of Mondays. In addition, the snow is slowly melting and I just found out that Punxsutawney Phil did not see his shadow – indicating that Spring will come early this year! Maybe you should give us a call and let us know what’s on your mind in terms of planning for the future of your loved one with Special Needs. We want to help you sort it through and create a PLAN that works for you and your family!

Traveling With Special Needs

Posted by on Mar 10, 2014 in From Our Team- Blog | Comments Off on Traveling With Special Needs

Traveling with any child is an adventure in and of itself. Couple that with a child that requires more specialized accommodations and care. With a bit more preparation your special needs son or daughter, with the right steps in place, you can still have a successful flight. Here’s How:

Accept your reality: Whether a child has special needs or not, a lot of times parents will find themselves frustrated simply because their children are not doing what they want (or expect) them to do. The reality is that with kids, things aren’t always going to happen just as you would like them to and the sooner that you accept that fact, the more prepared you’ll be for whatever surprises or minor conveniences that may happen along the way.

Thoroughly pack and plan: If you’re headed to a hotel or resort, call ahead and speak with a manager about what kind of accommodations your child will require from a wheelchair ramp, to bathroom rails, to even special kinds of meals that may need to be prepared. Also, make sure to get acquainted with the employees so that you will feel more comfortable with any “on call” requests that may occur.

Be patient: For those consummate “schedulers” try and step back a bit while traveling with a special needs child. Allow others to step up and support you in meeting your child’s needs. Add an extra 15-30 minutes for all activities that occur in an unfamiliar setting, they may need a bit more attention and reassurance in order for them to feel safe, so allot time a bit of additional time for that too.

Sit in a corner table in the back: Your child may use an electric wheelchair or one of those electric mobility scooters or you may carry them in, but when you’re eating at a restaurant, request for a corner table in the back. This is not for the sake of the other people eating around you so much as your own peace of mind. This allows your child more freedom to just be! They can mess up the table as they eat, make loud sounds and you do not feel obligated to reposition their mobility devices out of the way of so much “traffic”.

Don’t be self-conscious: Anytime people see something that they are not used to, they tend to react in a myriad of ways. They may stare. They may point. Their own children may yell out things that they see. Remember not to take it too personally nor allow anyone to have you so focused on the fact that your child has “needs”, that you lose sight of just how “special” they are.

Understanding Colin, Behavior is Communication

Posted by on Jan 30, 2014 in From Our Team- Blog | Comments Off on Understanding Colin, Behavior is Communication

Understanding Colin, Behavior is Communication

Contributed by: A Total Approach
www.atotalapproach.com

Though cautious, his mother’s voice spoke of pain and anxiety for her child. “His behaviors rule our house, we lock our doors, he destroys everything”. Her love for her child palpable, seeking a hope to find a place of peace for him and their family.

We started seeing Colin for a summer program of three hours daily. He received a multidisciplinary approach of occupational, speech-language therapy, DIR/Floortime services and Tomatis Sound Therapy. At first Colin were eased into accepting this new place with new therapists surrounding him. Through using Floortime principles, we gained his acceptance and trust. Some days the therapists had to work through bites and scratches, yet the unwavering approach of accepting him as he is, respecting his need to lash out, giving him the space to simply be, settled Colin over the course of the summer. We followed his interest and gently scaffolded different layers of success in small enough increments, and Colin started feeling safe. We focused on empowering him, letting him know that his thoughts and ideas matter. Colin needed to disorganize a room to gain the essence of all that is present in a room. Colin’s idea of being
purposeful was being destructive, because he could not plan a next sequence to achieve constructive play.

Through using Tomatis Sound Therapy, we were able to gradually calm his nervous system. His vocabulary increased, his engagement in activity lengthened and his need for destruction decreased. Colin needed us to hear his voice. He needed people to look beyond his extreme behaviors and to find him. He was lost in his own pervasive needs. When Colin experienced illness in his body, his pain was so severe that he would scream out for long periods of time. We had to reassure his mother that we would never consider him unfit for therapy, that Colin will always be accepted here.

In August of that summer, an inscription in the therapist log: “Mom told me today: “I didn’t know”….and said this several times. I asked her what she meant by “I didn’t know” and she said “I did not know that Colin was going to make all of these changes”. She further stated that they have brought him to many places and never seen changes like this before.

Colin speaks for many others. He needed to be understood, accepted and embraced by relationships in his life. The journey is far from over, but Colin has found a place of peace upon which he can now grow and become all he was meant to be.