Category: Autism

Estate Planning – Protecting the Future Interests of Those You Love

Planning for the future of your loved ones in the event of your death is generally a difficult topic for many. Unfortunately, those of us who have family members with disabilities cannot afford to ignore estate planning. Many hours of hard work by parents and caregivers go into the qualification process for government benefits for our disabled children and relatives. Twenty-page forms to fill out and hour-long calls with multiple agencies are just a couple of examples of what parents endure to obtain essential benefits for their children. Rules for eligibility for State Waiver programs, SSI and Medicaid are confusing.

What parents, family members, and close friends do not want to see happen is the disqualification of eligibility of benefits. To avoid possible disqualification of benefits, I have seen grandparents attempt to do the right thing and disinherit certain grandchildren, out of love and out of a misguided attempt to protect their loved ones with disabilities from losing benefits. The law provides a better way to protect your loved one’s eligibility for benefits through Special Needs Trusts (“SNT”).

Special Needs Trusts can offer protection of assets and income. Special Needs Trusts allow friends and families to enhance the quality of life of a special needs beneficiary.

“Income” for most public benefits agencies is defined as:

(a) actual cash distributions to the individual, and
(b) distributions that could be converted to food and shelter, and
(c) in-kind support and maintenance.

The more practical trust that is utilized is a 3rd party Special Needs Trust. Parents and grandparents who leave an inheritance to a child with a disability will

(a) create a 3rd Party Special Needs Trust,
(b) obtain a Taxpayer ID Number from the IRs, and
(c) draft a Last Will and Testament naming the trustee of the SNT as the beneficiary.

If you do not have a Will, Texas Intestate Succession law could distribute your estate directly to your child, thus creating another scenario where government benefits could terminate.

Another “funding” source for a Special Needs Trust – If you or someone you know is anticipating the eventual relocation to a nursing home, applicants should review eligibility laws of the Texas Medicaid Program. The state has a “look back” period of 5 years to review transactions that may have been made to spend down an estate to reach eligibility for Medicaid. Many transfers of income and assets can subject the Medicaid beneficiary or applicant to a transfer penalty. There are certain transfers of assets that are not subject to penalty such as contributions to a Special Needs Trusts for a person under the age of 65 with a permanent and total disability. Another transfer example is payment to an attorney for estate planning.

Contact The Filis Law Firm for more information on Estate Planning that will be most suitable for you and your family.

Special Education in 2017

The U.S. Supreme Court heard oral arguments in the Endrew F. v. Douglas County School District on January 11, 2017 (official transcript). The issue before the court is “What is the level of educational benefit that school districts must confer on children with disabilities to provide then with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act.”

Individuals with Disabilities Education Act (“IDEA”) passed in 1975, subsequently reauthorized and amended twice in 1997 and 2004, as the federal education law to provide a free appropriate public education (“FAPE”) to students who receive special education. In 1982, the U.S. Supreme Court interpreted the FAPE requirement in IDEA to mean schools must provide “some educational benefit” to their students with disabilities. Since then, IDEA has been amended to include the No Child Left Behind Act (“NCLB”). Further, the Americans with Disabilities Act (“ADA”) passed in 1990. The evolution of protections for our population of individuals with disabilities continues to address the needs of a growing segment of our population.

An attorney for the Petitioner, Jeff Fisher, argued to the Court that IDEA requires “for the school to provide instruction and related services to the child that are reasonably calculated to provide substantially equal educational opportunities.” Irv Gornstein for the Department of Education of the United States, argues in support of the Petitioner for a formulation that is “reasonably calculated to make progress that is appropriate in light of the child’s circumstances.”

In the event the Supreme Court rules in favor of Endrew F., there will be a substantive standard in states to provide a higher, meaningful education to children with special needs.

Later this month, the executive branch of the government will be headed by President-elect Donald Trump. Trump has picked Senator Jeff Sessions to serve as his Attorney General. In order to help predict future actions, we should visit the past. In May 2000, on the senate floor, Jeff Sessions stated “We have created a complex system of federal regulations and laws that have created lawsuit after lawsuit, special treatment for certain children, and that are a big factor in accelerating the decline in civility and discipline in classrooms all over America.” Sessions’ full statement is available on his website.

For more information on the Endrew F. case, click here for an Understood video interview Jack Robinson, an attorney for the parents of Endrew F.

It is IEP Season

Getting prepared for your next ARD meeting can be challenging.

Here are some Frequently Asked Questions pertaining to IEPs and ARDs that I have received the last couple of weeks.

Can parents request information of teachers’ and paraprofessionals’ qualifications?

Changes per the TEA beginning with the 2016-2017 school year –  the schools and teachers only need to meet the state requirements for certification.  Paraprofessionals must still meet the highly qualified requirements under No Child Left Behind for the 2016-2017 school year.

Once at the ARD meeting, can I postpone?

You can request more time or disagree and ask to recess and reconvene within ten school days. Review and if you agree, sign the IEP by the deadline. You can ask for a Facilitated IEP. If both parents and school agree, a trained person assists in getting people to reach an agreement. If the ARD committee cannot reach a mutual agreement, parents are allowed to write your own statement of disagreement.

What if I do not agree to the content of the Evaluation or Reevaluation Report?

Request the evaluation report in advance of the ARD.  Request clarification if the evaluation report is vague. If parents do not agree with the results of the school’s evaluation or reevaluation, parents may request an Independent Educational Evaluation (IEE).  The school has the option of (1) paying for the IEE or (2) requesting a due process hearing to prove the appropriateness of the evaluation.

How do we request a paraprofessional?

Structure your request for a dedicated paraprofessional by answering Who, When and Why for your child’s needs.

Who –  Paraprofessionals in Texas public schools this school year must meet the federal definition. Do not allow “aide” to be used as a substitute for the “paraprofessional” in the IEP.  When – Throughout the entire school day, specific classes or times of day, or only transitions. Why – Behavior management, activities of daily living, social skills, instructional support.

 

Feel free to send me more Special Education questions at leona@filislaw.com.

 

Has Your Child Paid the Price for Texas’ Lack of Special Education?

Policies of the Texas Education Agency (“TEA”) are under investigation by reporters and parents.  It is alleged that there has been an organized effort to keep eligible students in Texas from receiving special education services in public schools.  It has been argued that the goal was to save the TEA billions of dollars; however, this is at the expense of disabled students.

Earlier this year, the Center for Disease Control (“CDC”) stated it estimated 1 in 68 school-aged children in the United States have Autism Spectrum Disorder (“ASD”).  With diagnoses of ASD on the rise, the fact that Texas schools on average failed to reflect an increase in special education services is perplexing.  Many parents over the past few years have been informed that their children were not eligible to receive special education services despite parental concerns and outside diagnoses.

Parents have to know their rights.  The Individuals with Disabilities Act (“IDEA”) was originally enacted by Congress in 1975; improved in 2004.  Under IDEA, each state is charged with the obligation of identifying, locating and evaluating all children with disabilities in the state who need special education and related services.  Additionally, parents by referral, should identify their child as possibly needing special education and request an evaluation in writing.  After parents give consent to have their child evaluated, the evaluation must be completed within sixty days.

If parents disagree with the evaluation, the next step is to request an Independent Education Evaluation (“IEE”) at the public’s expense.  A new and independent evaluation of the student will evaluate the student.  The school can reject the parent’s objection to the school’s evaluation and file a due process complaint.

Frustrated parents can choose to remove their children from public schools and home-school or place their children in private schools or Applied Behavior Analysis clinics.  Without the supports and services in place for Texas students with disabilities, these students can lose the opportunity to reach their individual full potential as protected in IDEA.

Finally – Cameras in the Special Ed classrooms Commissioner’s Rules

The Texas Education Agency has finally posted the Adopted New rules regarding Cameras in the Classroom, effective August 15, 2016.

You may go to TEA website  for more information. I have pasted below the text for your viewing pleasure.

Text of Adopted New 19 TAC

Chapter 103. Health and Safety

Subchapter DD. Commissioner’s Rules Concerning Video Surveillance of Certain Special Education Settings

§103.1301. Video Surveillance of Certain Special Education Settings.

(a)                 Requirement to implement. Beginning with the 2016-2017 school year, in order to promote student safety, on request by a parent, trustee, or staff member, a school district or open-enrollment charter school must provide video equipment to campuses in accordance with Texas Education Code (TEC), §29.022, and this section. Campuses that receive video equipment must place, operate, and maintain video cameras in self- contained classrooms or other special education settings in accordance with TEC, §29.022, and this section.

(b)                 Definitions. For purposes of TEC, §29.022, and this section, the following terms have the following meanings.

(1)                 Parent means a person described in TEC, §26.002, whose child receives special education and related services for at least 50 percent of the instructional day in the [a] self-contained classroom or other special education setting. Parent also means a student who receives special education and related services for at least 50 percent of the instructional day in the [a] self-contained classroom or other special education setting and who is 18 years of age or older or whose disabilities of minority have been removed for general purposes under Texas Family Code, Chapter 31, unless the student has been determined to be incompetent or the student’s rights have been otherwise restricted by a court order.

(2)                 Staff member means a teacher, related service provider, paraprofessional, or educational aide assigned to work in the [a] self-contained classroom or other special education setting. Staff member also includes the principal or an assistant principal of the campus at which the [a] self- contained classroom or other special education setting is located.

(3)                 Trustee means a member of a school district’s board of trustees or a member of an open- enrollment charter school’s governing body.

(4)                 Open-enrollment charter school means a charter granted to a charter holder under TEC, §12.101 or

§12.152, identified with its own county district number.

(5)                 Self-contained classroom means a classroom on a regular school campus (i.e., a campus that serves students in general education and students in special education) of a school district or an open-enrollment charter school in which a majority of the students in regular attendance are provided special education and related services and have one of the following instructional arrangements/settings described in the student attendance accounting handbook adopted under

§129.1025 of this title (relating to Adoption by Reference: Student Attendance Accounting Handbook):

(A)               self-contained (mild/moderate/severe) regular campus;

(B)                full-time early childhood (preschool program for children with disabilities) special education setting;

(C)                residential care and treatment facility–self-contained (mild/moderate/severe) regular campus;

(D)               residential care and treatment facility–full-time early childhood special education setting;

(E)                off home campus–self-contained (mild/moderate/severe) regular campus; or

(F)                off home campus–full-time early childhood special education setting.

(6)                 Other special education setting means a classroom on a separate campus (i.e., a campus that serves only students who receive special education and related services) of a school district or open- enrollment charter school in which a majority of the students in regular attendance are provided special education and related services and have one of the following instructional arrangements/settings described in the student attendance accounting handbook adopted under

§129.1025 of this title:

(A)               residential care and treatment facility–separate campus; or (B)                off home campus–separate campus.

(7)                 Video camera means a video surveillance camera with audio recording capabilities.

(8)                 Video equipment means one or more video cameras and any technology and equipment needed to place, operate, and maintain video cameras as required by TEC, §29.022, and this section. Video equipment also means any technology and equipment needed to store and access video recordings as required by TEC, §29.022, and this section.

(9)                 Incident means an event or circumstance that:

(A)               involves alleged “abuse” or “neglect,” as those terms are described in Texas Family Code,

§261.001, of a student by an employee of the school district or charter school or alleged “physical abuse” or “sexual abuse,” as those terms are described in Texas Family Code,

§261.410, of a student by another student; and [or]

(B)                allegedly occurred in a self-contained classroom or other special education setting in which video surveillance under TEC, §29.022, and this section is conducted.

(c)                 Exclusions. A school district or open-enrollment charter school is not required to provide video equipment to a campus of another district or charter school or to a nonpublic school. In addition, the Texas School for the Deaf, the Texas School for the Blind and Visually Impaired, the Texas Juvenile Justice Department, and any other state agency that provides special education and related services to students are not subject to the requirements in TEC, §29.022, and this section.

(d)                 Use of funds. A school district or open-enrollment charter school may solicit and accept gifts, grants, and donations from any person to implement the requirements in TEC, §29.022, and this section. A district or charter school is not permitted to use Individuals with Disabilities Education Act, Part B, funds or state special education funds to implement the requirements of TEC, §29.022, and this section.

(e)                 Dispute resolution. The special education dispute resolution procedures in 34 Code of Federal Regulations,

§§300.151-300.153 and 300.504-300.515, do not apply to complaints alleging that a school district or open- enrollment charter school has failed to comply with TEC, §29.022, and/or this section. Complaints alleging violations of TEC, §29.022, and/or this section must be addressed through the district’s or charter school’s local grievance procedures or other dispute resolution channels.

(f)                  Regular school year and extended school year services. TEC, §29.022, and this section apply to video surveillance during the regular school year and during extended school year services . [Decisions regarding whether video surveillance will be conducted in self-contained classrooms and other special education settings in which extended school year services are provided are left to local discretion.]

(g)                 Policies and procedures. Each school district board of trustees and open-enrollment charter school governing body must adopt written policies relating to video surveillance under TEC, §29.022, and this section. At a minimum, the policies must include:

(1)                 a statement that video surveillance is for the purpose of promoting student safety in certain self- contained classrooms and other special education settings;

(2)                 the procedures for requesting video surveillance and the procedures for responding to a request for video surveillance ;

(3)                 the procedures for providing advanced written notice to the campus staff and the parents of the students assigned to a self-contained classroom or other special education setting that video and audio surveillance will be conducted in the classroom or setting;

(4)                 a requirement that video cameras be operated at all times during the instructional day when students are in the self-contained classroom or other special education setting;

(5)                 a statement regarding the personnel [individuals] who will have access to video equipment or [cameras and] video recordings for purposes of operating and maintaining the equipment or recordings [and the roles and responsibilities of those individuals] ;

(6)                 a requirement that a campus continue to operate and maintain any video camera placed in a self- contained classroom or other special education setting for as long as the classroom or setting continues to satisfy the requirements in TEC, §29.022(a);

(7)                 a requirement that video cameras placed in a self-contained classroom or other special education setting be capable of recording video and audio of all areas of the classroom or setting, except that no video surveillance may be conducted of the inside of a bathroom or other area used for toileting or diapering a student or removing or changing a student’s clothes;

(8)                 a statement that video recordings must be retained for at least six months after the date the video was recorded;

(9)                 a statement that the regular or continual monitoring of video is prohibited and that video recordings must not be used for [routine] teacher evaluation or monitoring or for any purpose other than the promotion of student safety;

(10)             at the school district’s or open-enrollment charter school’s discretion, a requirement that campuses post a notice at the entrance of any self-contained classroom or other special education setting in which video cameras are placed stating that video and audio surveillance are conducted in the classroom or setting;

(11)             the procedures for reporting a complaint alleging that an incident occurred in a self-contained classroom or other special education setting in which video surveillance under TEC, §29.022, and this section is conducted;

(12)             the local grievance procedures for filing a complaint alleging violations of TEC, §29.022, and/or this section; and

(13)             a statement that video recordings made under TEC, §29.022, and this section are confidential and a description of the limited circumstances under which the recordings may be viewed.

(h)                 Confidentiality of video recordings. A video recording made under TEC, §29.022, and this section is confidential and may only be viewed by the following individuals, to the extent not limited by the Family Educational Rights and Privacy Act of 1974 (FERPA) or other law:

(1)                 a staff member or other school district or charter school employee or a parent of a student involved in an incident described in subsection (b)(9) of this section that is documented by a video recording for which a complaint has been reported to the district or charter school;

(2)                 appropriate Texas Department of Family and Protective Services personnel as part of an investigation under Texas Family Code, §261.406;

(3)                 a peace officer, school nurse, [or] administrator trained in de-escalation and restraint techniques as provided by commissioner rule , or a human resources staff member designated by the school district’s board of trustees or open-enrollment charter school’s governing body in response to a complaint or an investigation of an incident described in subsection (b)(9) of this section; or

(4)                 appropriate Texas Education Agency or State Board for Educator Certification personnel or agents as part of an investigation.

(i)                  Child abuse and neglect reporting. If a person described in subsection (h)(3) or (4) of this section views a video recording and has cause to believe that the recording documents possible abuse or neglect of a child under Texas Family Code, Chapter 261, the person must submit a report to [notify] the Texas Department of Family and Protective Services or other authority in accordance with the local policy adopted under

§61.1051 of this title (relating to Reporting Child Abuse and Neglect ) and Texas Family Code, Chapter 261.

(j)                  Disciplinary actions and legal proceedings. If a person described in subsection (h)(2), (3), or (4) of this section views a video recording and believes that it documents a possible violation of school district, open- enrollment charter school, or campus policy, the person may allow access to the recording to appropriate legal and human resources personnel of the district or charter school to the extent not limited by FERPA or other law. A recording believed to document a possible violation of school district, open-enrollment charter school, or campus policy may be used in a disciplinary action against district or charter school personnel and must be released in a legal proceeding at the request of a parent of the student involved in the incident documented by the recording. A recording believed to document a possible violation of school district, open-enrollment charter school, or campus policy must be released for viewing by the district or charter school employee who is the subject of the disciplinary action at the request of the employee.

(k)                 Access rights. Subsections (i) and (j) of this section do not limit the access of a student’s parent to an educational record of the student under FERPA or other law. To the extent any provisions in TEC, §29.022, and this section conflict with FERPA or other federal law, federal law prevails.

 

Cameras in the Classroom – Special Education News

Parents – the time has come to send your letters to your child’s school district and request surveillance cameras be placed in your child’s classroom.

The Department of Aging and Disabilities (“DADS”) released a report discussing Senate Bill 507 that allows parents, and others, to request that any self-contained SPED room have a video camera to protect the safety of students. Click here for more info on Page 41 of the Report DADS Report.

However, the Texas Education Agency (“TEA”) has a proposed new rule being Section 103.1301, currently still in the rule adoption process. The proposed rule is offered for clarification of the Texas Education Code Section 29.022 regarding Video Surveillance of Certain Special Education Settings. Once the rule is adopted, it will be published in the Texas Register at the Texas Secretary of State website.  For more information of the proposed 19 Texas Administrative Code Section 103.1301, go to TEA Proposed New 19 TAC Section 103.1301.

You as parents of students receiving special education services should act now. Gather the contact information for your school’s principal and Special Ed director for the district. If your child is a student in Spring Branch, I have the district contact information.

Contact me and I will share an example of the Camera Request Letter.

 

Kevin and Avonte’s Law

The word eloping took on a whole new meaning when my three year old son began his new behavior of running away from me.  Due to the fact that I was already a “helicopter mom” even before my son’s autism diagnosis, my son did not have many opportunities to slyly wander away from me while we were out in public.  I faced the problem of having my son bolt from me with no (obvious) warning.

For many parents, elopement or wandering is a frightening problem that can occur with their children who are on the autism spectrum.  Parents may soon have resources and assistance to address elopement.  U. S. Senior Senator Chuck Shumer sponsored the new safety bill called Kevin and Avonte’s Law.  The U.S. Senate passed safety legislation on July 14, 2016. Currently in the U.S. House of Representatives, H. R. 4919 is assigned to a committee.

According to Autism Speaks, Kevin and Avonte’s Law would allow Justice Department grants to be used by law enforcement agencies and nonprofits for educational and other programs. The grants would facilitate training and emergency protocols for school personnel, supply first responders with additional information and resources, and make locating technology programs available for individuals who may wander from safety. See Autism Speaks   website for more information.

Guardianship of an Adult Disabled Child

Is your child nearing his or her 18th birthday? What does this mean for them and what does this mean for you?

The State of Texas recognizes your child as an adult when you child turns 18 years old.  He or she can enter into contracts and attend ARDs alone.  You as the parent will lose your status as the natural guardian of your child and lose the right to be noticed for your child’s school ARD meetings.  You may be excused from your child’s doctor’s exam room.

If your child’s capacity level is such that a Power of Attorney is not an acceptable option, look into Guardianship. Guardianship of the Person can offer you legal rights to protect your child.

Feel free to contact me for more information on planning for your child’s future at http://www.calendly.com/filislawfirm.

CDC Estimates 1 in 68 school-aged children have autism

The Center for Disease Control (CDC) issued a Press Release today regarding its findings from data collected by the CDC’s Autism and Developmental Disabilities Monitoring (ADDM) network.  The report shows no change in the autism spectrum disorder prevalence from the previous report in 2014.

According to Dr. Stuart K. Shapira, chief medical officer for CDC’s National Center on Birth Defects and Developmental Disabilities,

The most powerful tool we have right now to make a difference in the lives of children with ASD is early identification.

The CDC has more information at www.cdc.gov/Autism.

Katy Autism Support Presentation 4/19

I am excited about my next official speaking engagement! I have been invited to speak at the April meeting for Katy Autism Support.
Support Meeting April 19th, 2016; Special Needs Attorney presentation.

Leona E. Filis, attorney and mother of a child on the autism spectrum will discuss how families with children with special needs can gain more knowledge and information about Special Education Law, Family Law,Probate/Trusts, Guardianship and Medicaid Waivers. Her law practice focus is on the legal services of families with children with special needs. Full description of Ms. Filis’ presentation will be updated as the meeting date approaches.

Date:  Tuesday, April 19, 2016

Time: 7:00—9:00 PM

Location: St. Peter’s United Methodist Church, Asbury Hall, 1st floor, 20775 Kingsland Blvd., Katy, TX

If you have any questions, please send an email to Cynthia Reece at kgreeceman@aol.com.

Free childcare is available, RSVP the special needs ministry coordinator at sarahmorrison@sbcglobal.net for childcare no later than Sunday, April 15, 2016.