Traveling Soon and Have a Family Member with Special Needs?

Travel for my son has been limited to automobile transportation. Between his sensory issues due to Autism and his severe peanut allergy, I have been afraid to take my son on a plane. My son’s allergy doctor wrote a letter for me to provide to an airline should I choose to travel with my son on a plane. When I have contacted airlines about our potential trips, I was assured that we could board and deplane earlier than the other passengers. Also, our seats would be strategically located for our comfort. These are all reasonable accommodations offered by the airline, but leaving a plane “early” is not a true solution if my son has an immediate problem, like a meltdown, an anxiety attack or anaphylactic shock.

Travel limitation is especially cumbersome during the end-of-year holidays.

Surprisingly, I have family members who have physical challenges who have not had to remove airplanes as an option for their long-distance journeys.

While in the airport, the rights of individuals with disabilities are protected by the Americans with Disabilities Act (“ADA”), which is governed by the Department of Justice. Per the ADA, disabilities can include a physical or mental impairment that substantially limits a major life activity, such as learning, walking, seeing, and talking. See Section 504, for protections that primarily deal with accessibility.

Air carriers are subject to the rules in the Air Carriers Access Act (passed in 1986) that prohibits the discrimination of passengers who have disabilities. Air Carriers are governed by the Department of Transportation.

Equal access for travelers with special needs are about to improve. Last month marked a huge success for disability rights groups as the new “Bill of Rights” for air travelers with disabilities passed as part of the Federal Aviation Administration Reauthorization Act of 2018. Tying funding of the FAA to the protections will ensure improvement.

The Bill includes the following reforms:

• Increase civil penalties for bodily harm to a passenger with a disability and damage to wheelchairs or other mobility aids.

• Require that the Department of Transportation review, and if necessary, revise regulations ensuring passengers with disabilities receive dignified, timely and effective assistance at airports and on aircraft.

• Create the Advisory Committee on the Air Travel Needs of Passengers with Disabilities to identify barriers to air travel for individuals with disabilities and recommend consumer protection improvements.

• Require that the new Advisory Committee review airline practices for ticketing, preflight seat assignments and stowing of assistive devices, and make recommendations as needed.

• Mandate the DOT develop an Airline Passengers with Disabilities Bill of Rights, in consultation with stakeholders, describing rights of passengers with disabilities and responsibilities of air carriers.

• Study in-cabin wheelchair restraint systems, in coordination with disability advocates, air carriers and aircraft manufacturers.

You can find more information, although not updated recently, on Transportation.gov.

Have Questions about the ABLE account and the IRS? See the IRS bulletin below.

IR-2018-139: Tax reform allows people with disabilities to put more money into ABLE accounts, expands eligibility for Saver’s Credit

Internal Revenue Service (IRS) sent this bulletin at 06/15/2018 11:05 AM EDT

IRS Newswire

June 15, 2018

Issue Number: IR-2018-139

Inside This Issue

Tax reform allows people with disabilities to put more money into ABLE accounts, expands eligibility for Saver’s Credit

WASHINGTON – People with disabilities can now put more money into their tax-favored Achieving a Better Life Experience (ABLE) accounts and may, for the first time, qualify for the Saver’s Credit for low- and moderate-income workers, according to the Internal Revenue Service.

The Tax Cuts and Jobs Act, the tax reform legislation enacted in December, made major changes to the tax law for 2018 and future years, including increasing the standard deduction, removing personal exemptions, increasing the Child Tax Credit, limiting or discontinuing certain deductions and changing tax rates and brackets.

The new law also enables eligible individuals with disabilities to put more money into their ABLE accounts, qualify for the Saver’s Credit in many cases and roll money from their 529 plans — also known as qualified tuition programs — into their ABLE accounts.

States can offer specially designed ABLE accounts to people who become disabled before age 26. Recognizing the special financial burdens faced by families raising children with disabilities, ABLE accounts are designed to enable people with disabilities and their families to save for and pay for disability-related expenses. Though contributions are not deductible, distributions, including earnings, are tax-free to the designated beneficiary if used to pay qualified disability expenses. These expenses can include housing, education, transportation, health, prevention and wellness, employment training and support, assistive technology and personal support services and other disability-related expenses.

Normally, contributions totaling up to the annual gift tax exclusion amount, currently $15,000, may be made to an ABLE account each year for an eligible person with a disability, known as a designated beneficiary. But, starting in 2018, if the beneficiary works, the beneficiary can also contribute part or all of what they make to their ABLE account.

This additional contribution is limited to the poverty line amount for a one-person household. For 2018, this amount is $12,140 in the continental U.S., $13,960 in Hawaii and $15,180 in Alaska. However, the designated beneficiary is not eligible to make this additional contribution if their employer contributes to a workplace retirement plan on their behalf.

In addition, starting in 2018, ABLE account beneficiaries can qualify for the Saver’s Credit based on contributions they make to their ABLE accounts. Up to $2,000 of these contributions qualify for this special credit designed to help low- and moderate-income workers. Claimed on Form 8880, Credit for Qualified Retirement Savings Contributions, this credit can reduce the amount of tax a person owes or increase their refund. Like other IRS tax forms, Form 8880 will be revised later this year to reflect changes made by the new law.

In addition, some funds now may be rolled into an ABLE account from the designated beneficiary’s own 529 plan or from the 529 plan of certain family members.

Like other workers, ABLE account beneficiaries and other people with disabilities should make sure they are having the right amount of income tax withheld from their pay. Because of the far-reaching tax changes taking effect this year, the IRS urges all employees to perform a paycheck checkup now. Doing so now will help avoid an unexpected year-end tax bill and possibly a penalty. The easiest way to do that is to use the fully-accessible Withholding Calculator, available on IRS.gov.

For more information about ABLE accounts and the tax reform changes, visit IRS.gov/taxreform.

New Requirement for Guardians in Texas

If you are a guardian of your child with special needs, be aware of the new Guardianship Certification requirement.

Texas has the Judicial Branch Certification Commission (“JBCC”) that oversees the certification and registration of guardians. The JBCC will accept applications for guardianship registrations effective June 1, 2018, per the passage of Senate Bill 1096 for all Texas guardianships. If you have a pre-existing guardianship, you can simply register here after June 1st.

For all new guardianships, at least ten (10) days prior to the hearing for your application, you must apply to register online with the JBCC certification, registration & licensing system and complete the Guardianship Training (with the option of online training at the Guardianship Training page.)

The free, one (1) hour training module is a course that explains the following:

Understanding Why Guardianship May be Necessary
Overview of Alternatives to Guardianship
Types of Guardianships
Procedures to Establish a Guardianship
Duties of the Guardian
Reporting Requirements of the Guardian
Modifying, Terminating, or Closing a Guardianship

Resource Convention for Duchenne Muscular Dystrophy

Filis Law Firm is a vendor and Leona E. Filis will be speaking at this year’s CureDuchenne Cares Convention this weekend!

For more information click on this link.

Don’t Let The 8.5% Cap on Special Ed Continue

In 2016, after the publication of a series of investigative articles by Brian M. Rosenthal in the Houston Chronicle, many parents with children in Texas public schools obtained confirmation of one of their worst fears – their children were missing out on education opportunities that could enrich their children’s lives. It may not sound like much to a parent with a typical child who can catch up on academics with a tutor, but for parents with children who require special education services and accommodations, catching up can feel impossible.

The U. S. Department of Education conducted their own investigation which concluded that Texas Education Agency (TEA) led schoold districts to delay or deny special education services to students by instituting an arbirtrary cap for enrollment of services at 8.5%.

Now, the TEA owes the public school children in Texas a proper education and the TEA is asking for your help. We have until April 18th to offer comments on the draft of the the strategic plan to get our schools in line with rest of the country with regards to special education.

Click on the link below to read more information on the draft and to offer your comments.

https://tea.texas.gov/About_TEA/News_and_Multimedia/Press_Releases/2018/TEA_accepting_comments_on_draft_strategic_plan_for_special_education_through_April_18/

Keep the Family Home in the Family

Are one or both of your parents in need of more assistance with daily activities than what they are receiving in their home?

Nursing homes and assisted living facilities can be expensive, but the government helps those in need with Medicaid benefits. A problem many people face with Medicaid is that they are ineligible due to having too much money and too many assets.

For many retirees, qualifying for Medicaid to pay for nursing care appears to be impossible.

As their child, it may seem like this is a hopeless situation and quite unfair to have your parents lose everything they worked hard for over the past few decades to try to qualify for Medicaid.

MERP is the Medicaid Estate Recovery Program. MERP can only recover from assets that pass through probate. Both a Ladybird Deed and Transfer on Death Deed pass property outside probate.

Estate and Medicaid planning can be accomplished to keep your hard-earned assets in the family. Contact our office for more information.

15 Year Anniversary for Filis Law Firm

In July 2002, I sat for the Texas Bar exam. Thankfully I had my friend Mary K. to make the 3 days of testing tolerable. Then, after many months of waiting, we finally received our results. Many people do not know this, but all the Texas law school graduates who take the Bar find out if they passed the Bar all at the same time. The Texas State Bar Examiners post the pass list online. I was thankfully on the list and within a couple of months, I formed The Filis Law Firm, PC.

Over the years I have enjoyed the flexibility of having a general civil practice. In the middle of 2008, I entered into the world of Oil and Gas. We are in Texas so it makes perfect sense to work in energy in some capacity. I enjoyed oil and gas title work, but my son who inspired me to explore a different path in my career. With his diagnosis of Autism Spectrum Disorder, our lives changed – not better or worse, just different. Since then, Filis Law Firm has provided me with the ability to share what I have learned over the years and help protect the legal rights of children with special needs and their family members.

Fifteen years of Filis Law Firm, and many more years to come.

Advising Families With Children With Special Needs — Filis Law Firm
5600 NW Central Drive, Suite 202
Houston, TX 77092

CHIP Health Plan for Working Families

Do you earn too much money to be eligible for Medicaid, but not enough money to pay for private health insurance for your kids? Based on certain income requirements, kids and pregnant women may be qualified for the Children’s Health Insurance Program (“CHIP”). Currently, there are approximately 400,00 Texas kids and pregnant women enrolled in CHIP. Health care services in Texas include prescriptions and post-partum care.

CHIP was created in 1997. Texas adopted the program a couple of years later and since then, over one million children have been enrolled in the health insurance plan and able to obtain proper medical treatment. For a child to be eligible for CHIP, a family of two can earn income up to 200% of the federal poverty level, around $32,000 a year or $2,666 a month. According to a July 2017 article in the Business Insider, the average monthly rent for a 2-bedroom apartment in Houston, Texas is $1,088. After paying rent, there is not much money to cover food, clothing, utilities and transportation, much less private health insurance premiums. CHIP is crucial for low-income working-class families.

On September 30, 2017, Congress failed to renew the authorization for CHIP funding. There is limited hope that six months worth of federal CHIP funding may be authorized prior to the holiday break, however, this would cover October 2017 through March 2018. If Congress fails to authorize temporary funding, states will fund CHIP without their federal partner. According to recent reports, Texas only has funds to keep CHIP active until February 2018 in the event the federal government chooses to discontinue the program.

Have an ARD Meeting Soon? Be Prepared.

In the next week weeks, many parents of children who receive special education services under the federal IDEA Act will be invited to their child’s public school to attend an Admission, Review and Dismissal (“ARD”) meeting.

At this meeting, the ARD team will review the current Individualized Education Program (“IEP”) for the student and propose recommendations for the child’s education plan –

To ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living. – IDEA (§300.1)

At the ARD meeting, parents can agree or disagree with some or all of the proposals. If there is a disagreement with the proposed IEP, the ARD team can take a recess, negotiate terms, and reconvene (in ten days typically).

Preparing for such a meeting can be stressful for parents based on fear and anxiety for possibly failing your child by not protecting their rights or not demanding proper education services.

Parents who are engaged with the IEP process can find success by reading up on the following:

school records (including daily reports),
assessments from school and private sources (and knowing which new assessments should be requested), and
education laws.

U.S. Supreme Court provides guidance in the recent Endrew F. case that a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all, setting the floor for the application of the holding in the Rowley case that the school must confer an IEP reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.

At the ARD meeting, show up with your questions and notes and if you are considering agreeing to a new service or the removal of a service that you are not comfortable with but are willing to try out the situation temporarily, agree to try it out and have a follow-up meeting in a month to re-assess the situation. Under IDEA, the ARD meeting can occur annually or a often as needed allowing a parent to request a meeting in writing.

Take your time at the ARD, listen to suggestions, and stay on track with your goals for the meeting.

Have an Upcoming ARD?

Fall semester school obligations have begun. Parents of students in general ed have probably had their 15 minute one-on-one meeting with the teacher. For the rest of us, we are preparing for upcoming ARD meetings. ARD stands for Admission, Review and Dismissal. For my son, I am at the review stage of the ARD process. We have an individualized education program (“IEP”) in place from the last school year. The IEP is a contract and all the services described in the IEP must be provided by the school district.

In my situation, at the next ARD meeting, there will be a review of the prior IEP terms and suggested revisions based on my son’s new education needs. One example of what will probably be discussed is the reduction of support. Some members of the ARD committee have informally signaled to me that they will be requesting less paraprofessional in-class support time for my son during his inclusion in his general education classes. When I first heard of this potential change, I was frightened.

Parents involved in the ARD process may suffer an emotional toll. In my situation, I have a concern that once I agree to reduce in-class support, my son may never get the support back when he really needs it. In contrast, I do want my son to gain independence and have an opportunity to blossom without the support of a SpEd professional. Will my decision short-change my son’s educational experience? To make an informed decision, pre-ARD actions need to be taken. I will review my son’s daily reports, his classwork and homework grades, and interview the special ed professionals that observe him in the general ed classroom.

As my son’s advocate, preparation for the ARD meeting is time-consuming and sometimes frustrating. To assist with organization aspect of the preparation, I will update my IEP binder with daily reports, progress reports, copies of communications with the school, therapist and doctor reports, and previous IEPs. For those of you who are preparing an IEP binder, if you discover that you are missing school records, give your school a written request for the records, as you are allowed under Family Educational Rights and Privacy Act (“FERPA”). The IEP binder will help you decide on IEP goals and provide you with evidence to support your arguments during the ARD meeting, if needed.

Being a present and contributing member of the ARD team can be hard work, but your child will need your involvement to get the most out of his or her public school experience.

IR-2018-139: Tax reform allows people with disabilities to put more money into ABLE accounts, expands eligibility for Saver’s Credit

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Issue Number: IR-2018-139

Inside This Issue