CAN YOU LOSE CHILD SUPPORT FOR YOUR ADULT CHILD WITH DISABILITIES?

The answer is “yes” and “no.”   The lives of parents caring for adult children with disabilities is already burdensome, and this change in the law adds an additional barrier such parents will have to overcome, but it will not bar them from obtaining the payments they may be entitled to.

New Jersey passed a law last year that takes effect next month – February 2017 – that may disrupt payments from an ex-spouse that are necessary to care for a child with disabilities.   Under the former law, the State provides strong enforcement action under its “Probation” department, that could include wage garnishment and even potential incarceration.  

The new law ends any and all “child support” obligations in divorced families once the child reaches the age of 23.  Thus, the State will no longer provide probation enforcement beyond the child’s 23rd birthday.  This applies to a child with disabilities in the same manner as to any other child. Custodial parents whose children are now approaching the age of 23 will now receive a notice from the State designating the upcoming birth date as the date upon which the support payment obligations that they have been relying will end. 

However, custodial Parents of  children with special needs who require such support should not panic.  And non-custodial parents who are now required to provide such support should not be misled into thinking they can now abandon those obligations.  

Instead, the statute recognizes that persons with disabilities may require financial “maintenance” beyond age 23 and that parents of such persons may be responsible to provide financial “maintenance” as long as necessary for such children.    The big difference beyond the semantics of “child support” vs “maintenance” is that the probation department will not address or enforce “maintenance,” and custodial parents will instead have to seek such payments by way of an additional process in Family Court.

Such additional process can result in a Court Order requiring the noncustodial parent to provide “maintenance” payments, and those payments may (or may not) be in the same amount as the previous “child support” payments.  Once such an Order is obtained, the child or custodial parent will have access to the enforcement powers attendant with any Court Order, but will no longer be able to rely on the exceptional enforcement powers of the Probation department.   (A link to the new statute can be found here:  http://www.njchildsupport.org/getattachment/Services-Programs/Custodial-Parents/Termination/Emancipation/Termination-of-Child-Support-Public-Law-2015,-Chapter-223_.pdf.aspx)

If you are a divorced parent who has a child with a disability who is approaching or over the age of 23, you should consult with a knowledgeable attorney as to the impact this new law may have on your rights and obligations.  

 

 

Charter Schools and Children with Disabilities

The U.S. Department of Education recently released a “Dear Colleague” Letter to clarify that all students who qualify, or would qualify, in their neighborhood school District for either an IEP under the I.D.E.A., or a Section 504 Plan under the Rehabilitation Act – have the exact same rights for services if they attend a Public Charter School.

Therefore, if your child is enrolled in a Public Charter School, she has the same rights to special education services and/or accommodations in the charter school as she would have if she was enrolled in the general public school in her District.  Such rights run the gamut of varying special needs and disabilities, including but not limited to learning deficits, reading difficulties, autism, ADHD, depression, anxiety, behavioral disabilities, and psychological disabilities.

Although these laws have always applied to Public Charter Schools, some charter school Administrations do not understand their obligations under these laws, and have misinformed parents of their children’s corresponding rights.

You can use the Department’s clarifying letter to help you obtain services if you run into an Administrator who is telling you that the obligations of the Charter school are in any way less or different from any other public school.   That letter can be found here: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201612-504-charter-school.pdf

Two other documents from the Department of Education that may also be helpful are:  (1) an FAQ on Section 504 and Public Charter Schools issued by the US Office of Civil Rights, which can be found here —  www2.ed.gov/about/offices/list/ocr/docs/dcl-faq-201612-504-charterschool.pdf; and (2) an FAQ by the same Office concerning the I.D.E.A. and Public charter schools, which can be found here —  www2.ed.gov/policy/speced/guid/idea/memosdcltrs/faq-idea-charter-school.pdf

If your child qualifies for services under either statute, or if you even suspect that she might qualify for such services – the fact that she attends a Public Charter School should not deter you from obtaining the services that she needs.  These laws provide powerful tools and, if necessary, an attorney with knowledge of these laws and how they apply can bring these schools to meet their obligations for your child.

 

 

Teenager with Disabilities Injured and Arrested by TSA Workers in Airport

Another sad reminder in the news, that caregivers of people with disabilities cannot presume that authority personnel will listen to or understand the caregiver’s guidance on how best to deal with a person’s disabilities.

This sad story (linked below) involved a teenager who is described as having paralysis, being partially deaf and blind, and subject to cognitive confusion.  When she didn’t understand that TSA wanted to scan her again, they grabbed her, she resisted — and they smashed her face as they threw her to the ground, and then arrested her for non-compliance.   All the while her horrified Mother was trying to explain to the authorities that her daughter didn’t understand what was being asked of her.  Instead of hearing the Mom, the police held her back during the incident.

We routinely see stories like this in the news, I wrote about one some time back involving the death of a young man with Downs Syndrome in front of his care worker at the hands of two movie security guards — all because he wanted to see a movie again and didn’t understand why they were insisting he leave.  Things escalated quickly despite the caregiver trying to tell the guards how to calm everything down.

Caregivers for people who may not understand or quickly comply when given orders need a very clear action plan in place for potential conflicts with authority figures.  We should assume that they will not be as open to our guidance as we might imagine, and we need to be well rehearsed in case of a confrontation.   I am not in anyway blaming this Mother, but perhaps had she alerted some of the TSA workers to her daughter’s issues before they got into the security line, the workers would have been more open to hearing the Mom when they encountered some non-compliance from the daughter.

It is a good idea to have a well-thought out plan, perhaps even something in writing, to give guidance when necessary.  Events like these are a caregiver’s worst nightmare.

https://pjmedia.com/parenting/2016/07/01/shocking-disabled-teen-returning-from-st-judes-hospital-bloodied-and-arrested-by-tsa/

 

 

 

 

 

What Level of Educational Benefit Must Schools Provide to Children with Special Needs?

An important case is currently before the U.S. Supreme Court that could cause significant harm to children across the nation who need special education services, or it could raise the bar for children with disabilities in areas that currently provide a lesser level of services than others.

Currently, in many areas of the country — including Pennsylvania, New Jersey, and Delaware — schools must provide an education that rises to a level of “meaningful benefit.”  Meaningful benefit is defined as not maximizing a student’s potential, but nevertheless providing significant learning in light of a child’s aptitude.  Thus, in areas such as ours, it is not sufficient that a child makes some progress under his program. Instead, the progress must be “meaningful” and involve significant learning.

In other areas of the country, however, the legal standard is far lower.  Schools in those areas must merely provide “some educational benefit” to children with disabilities.

The distinction exists due to different Courts interpreting the top Supreme Court cases on this issue in differing ways.  Courts applying a very literal interpretation have come up with the “some benefit” standard; Courts applying a more in depth analysis have established the “meaningful benefit” standard.

The distinction is significant.   Under the “some benefit” standard, children could be denied services in their most significant areas of need, based on the argument that they made “some progress” in some lesser area of need.  Imagine a child in high school who can barely read due to Dyslexia, and who struggles in math but is only one grade level behind — being denied effective reading supports because he has made “some” progress in math.

It certainly seems counter-intuitive that the IDEA would countenance as sufficient the provision of educational services that are NOT “meaningful” to a child.  But this is a prevailing interpretation of prior IDEA case law in several jurisdictions around the country.

Presently before the Supreme Court is a case that will require the Court to select one or the other approach, or to fashion a new approach of its own.   You can find access to the court papers in that case here:

Endrew F. v. Douglas County School District

I certainly support that an increased level of services must be required in the “some benefit” jurisdictions, and hope that the Supreme Court will act responsibly now that it has the opportunity to provide a single standard for all of our children with special needs across the nation.

Understand, however, that there is an equal risk that the Supreme Court rules the other way, and severely cuts the level of educational benefits children in our jurisdiction are currently entitled to.   If that should occur, our only recourse will be to convince the federal legislature to take action and make clear in the statute itself that it is intended to require that children with special needs receive an education that is at least “meaningful” to the child.

 

Another Student Commits Suicide Due to Bullying

I’ve posted about such incidents before, but another one has hit the national news.

The facts as alleged seem sadly typical:  A student is repeatedly bullied over a long period of time by a group of students; the bullying is reported to the School District, which takes some action, but their action does not curtail the ongoing bullying; the targeted child kills herself.

Again I reiterate to all who may read my blogs the importance of both reporting incidents of bullying to school personnel and keeping a record of such reports, and following up with school personnel to ensure action is taken and that the action is effective.   Far too often we raise these issues to the schools as isolated events, rather than presenting to them the larger picture of ongoing bullying over an extended time period.

Here is a link to the horrible story as reported in the Washington Post:    https://www.washingtonpost.com/news/morning-mix/wp/2016/05/23/after-years-of-alleged-bullying-an-ohio-teen-killed-herself-is-her-school-district-responsible/?wpmm=1&wpisrc=nl_most-draw6

As often is the case, the School District in this instance is first responding to the Complaint by arguing several procedural reasons as to why they should not be held liable.  Hopefully, this case will advance past those hurdles and be decided on the actual merits.

One especially egregious alleged fact is that after the suicide, the School District actually sent out notices to all the parents in the District claiming that the suicide was not related to any bullying.   Guilty conscience?

Remember that children with Special Needs are especially prone to being targeted at school for malicious behavior due to their lower social status in the school community as compared to other students.  Because of the greater vulnerability of students with disabilities, the impact can also be significantly more harmful.

School Bullying Lawyer NJ and PA

 

 

 

 

Schools Often Paint Special Needs Parents as “Crazy” or “Unreasonable”

The link below was on Huffington Post, and shows how parents who fight and advocate for their children with special needs are often characterized by the school as overbearing, unreasonable, or even “crazy.”

It’s a good read for any parent who has ever felt that school personnel were doing this to her.  You are not alone.  It’s a common defensive mechanism that administrators and teachers fall into to avoid looking at themselves in the mirror.

Remember that these same parents are often the ones that do in fact get the most services for their children.

Keep up the fight, don’t let them get you down.  As the author of the article says — “Please be ‘that’ Parent.”

(just highlight and click on the link)

http://www.huffingtonpost.com/laurie-levy/how-school-systems-create_b_8806948.html

 

Special Education Law

 

Good News Update to Blog on Stay-Put Rights

Last week I wrote about your child’s special education “stay put” rights when Due Process is filed, and discussed how the right to extend “stay put” all the way through the appeals process was currently being challenged in the United States Supreme Court.

I learned today that the Supreme Court has decided not to hear the case.

This is very good news for those of us who live in the Third Circuit (Pennsylvania, New Jersey and Delaware) because the extensions through the complete appeal process is the law of this Circuit.   Therefore, the Court’s decision not to engage with the challenge leaves the stay-put rights of children with special needs in these states fully intact.

Special Education Law

Understanding the Special Education “Stay-Put” Provision

As IEP season is upon us, parents of children with special needs are reminded of the need to understand how to utilize the “Stay Put” provision in the IDEA.   This provision is intended to protect a child from being jerked back and forth between one educational program or placement and another during disputes between the Parents and their School Districts.   The provision provides that, unless the Parents and the District otherwise agree, the placement in the last existing IEP shall remain the same during any disputes unless and util those disputes are resolved or concluded.

This right is very important if your dispute involves the District taking important services away from your child, or is trying to move your child to a different placement over your objection.  For example, if the District decides at an IEP meeting to remove your child’s 1:1 aide on the grounds that they don’t believe he needs an aide anymore, and you disagree, the District will have to continue to provide the aide while the parties litigate the dispute if the Parent properly invokes “stay put.”  Absent this right, your child could lose critical services during the dispute, or be sent to an inappropriate placement during the dispute, and return only after the dispute was litigated to completion.  This back and forth of services or placement is what the provision was designed to eliminate.

If the dispute instead is about the Parent’s belief that more services are required then are in the current IEP, the “stay put” provision is not something the Parents need to invoke, because there is no back and forth to which the Child will be subjected.

The only way Parents can properly invoke the child’s “stay put” right is to file for mediation or due process within 15 days (in New Jersey) of their receipt of the new proposed IEP from the District which has removed the services at issue, or is placing the child elsewhere.   The reason the 15 day limit is important, is because after 15 days — even if the Parents do not sign the new proposed IEP — the new IEP goes into effect.  In that event, any “stay put” rights in any subsequent filing for mediation or Due Process will relate to the new IEP, because the new IEP will then be the last existing IEP.   If you are even one day late with your filing, your child may lose the right to “stay put.”

Thus, if you desire “stay put,” you must file for mediation or Due Process within the 15 day window.  If your issues do not require “stay put,” you can file for mediation or Due Process at any time.  The 15 day window does not bar you from filing at any later date.

Once invoked, the right to “stay put” continues in place even through any appeal process.  Thus, if the Parents win or lose at Due Process, the services continue if either party appeals that decision to a state or federal Court.  The same applies if either party appeals from that level court to the next higher appellate Court, and even through the Supreme Court of the United States.

This latter application of “stay put” throughout the appellate process is however currently under challenge by school districts before the United States Supreme Court in a case known as Ridley Sch. Dist. v. M.R., Dckt # 13-1547.  School board associations from around the country have filed briefs, arguing that “stay put” should end at the first trial level and not apply to appeals because otherwise it encourages parents to unreasonably drag out legal proceedings for the purpose of squeezing some extra services out of the District.

The Boards fail to point out, however, that the opposite is true — that absent “stay put” many Parents would abandon their claims if they lost on the first level regardless of the merits in an effort to spare the Child the back-and-forth disruption that could be forced upon their Child.  Under the view of the School Boards, a Child could be moved out of her placement if the parent loses on the first level but appeals, and then put back into the pre-existing placement if the parent prevails on appeal, removed again if the District wins on appeal on the next level, and returned yet again to the initial program if the Parent goes all the way to the Supreme Court and wins.  This kind of disruption could be devastating to fragile special needs children already struggling to learn, and is exactly what the provision is intended to prevent.  The school boards forget that the provision is in place for the Child’s protection, not for the parents or for school districts.

The US Solicitor’s General Office recently weighed in with a brief of its own – arguing that “stay put” has to apply throughout all appeals because the language of the provision refers to “concluded” and “resolved” and that no dispute can be said to be concluded if parities file appeals.  You can keep an eye on that case via this link, which will even allow you to review the briefs if you so choose:  http://www.scotusblog.com/case-files/cases/ridley-school-district-v-m-r-as-parents-of-e-r-a-minor/

Stay strong at those IEP meetings.  Knowing your rights is your best source of strength.

Special Needs Law NJ & PA

School Discipline and Your Child with Special Needs

If you have a child with a Section 504 Plan or who receives special education services under an IEP, it’s important to know that your child may have some additional rights to either address helping him behave more appropriately in school, or when he does not, help ensure that the responses to his inappropriate behaviors are productive rather than punitive.

One such right for children with disabilities who have behavioral issues is the right to a positive behavior plan, which is a specific guide to help staff and the child.  Too often such plans are thrown together and focused solely on how to react to inappropriate behaviors.  Such plans can and should address much more.

A well crafted behavior plan is based on a Functional Behavioral Assessment, which should help identify the reasons for the behaviors.  Such assessments should be conducted by a psychologist or a Board Certified Behavioral Analyst who will take data over at least several days and across types of settings (academic, lunch, etc.).   It is generally not possible to create proper planning without having a reasonable grasp on the underlying causes of the behaviors.

The Plan itself can and should address all of the following:  should modifications in curriculum or delivery be made to reduce the triggers of the behaviors; when triggers occur, what can be done to redirect the Child’s responses into something appropriate before inappropriate responses take control;  and how exactly to respond when inappropriate responses do take control.  Most important, but often overlooked — what can we be working on now with the Child so that the need for the Plan will eventually be reduced?  In other words, what can we do to train the Child over time so that he or she can modify their behaviors on their own?

Remember too that your Child’s Plan can override what would otherwise apply under the Student Code of Conduct if you can get specific alternatives written into the plan.  One rather simple example that Districts often agree to is to have someone from the CST or otherwise familiar with your child and his issues called into any disciplinary decision making that will impact your child before the decision is actually made.  Having the school psychologist in the room with the Assistant Principal can often alter the consequences that the administrator would otherwise impose.  The Plan can also require that certain steps in consequences take place before application of the consequences in the Code.

The time to request a plan or to revise your child’s plan for next year is coming close, and it’s certainly not too soon to start considering the above issues and to make your own agenda for the upcoming meetings.   The more specific the written document, the more accountable the staff will be.

Your child also has other rights with respect to school discipline — such as the right to a manifestation meeting under certain circumstances.  That and other rights will be discussed in other blogs.

Keep up the advocacy for your children!Student Advocate Lawyer

 

 

Special Needs Child with Autism Denied Use of School Bathroom?

You may have seen reports in the news about a teacher’s union trying to bar a special education student’s use of the only bathroom on the same floor as her classroom, because that bathroom is for “teachers only.”  The School had required that the child would have to go outside, up flights of stairs, and re-enter the building to utilize a student bathroom on an upper floor.  The child has autism, a chronic lung disease, and pulmonary hypertension. When the Mom objected, the school let the child use the teacher bathroom, and the union filed a grievance to stop it.  (You can read the story here:   http://www.post-gazette.com/local/south/2015/03/26/Steel-Valley-board-votes-to-allow-special-needs-student-to-use-faculty-restroom/stories/201503260217)

My first reaction was disgust at the teacher’s union, but on further thought, there appears to be even more significant issues at stake.

For example, the school has apparently placed all special education classes in the basement, two floors below the reach of the school elevators.  All of the other special needs students in the class continue to go outside and up flights of stairs in order to reach a student bathroom.   This lack of bathroom access by itself may be a violation of Section 504 of the Rehabilitation Act — which bars discrimination or disparate treatment in schools based upon disability.   Indeed, the decision to place the special education classes in the basement even if there had been a bathroom might also be a violation of anti-discrimination laws.

The story reminded me of a personal experience I had back in high school in the 1970’s (yes I am old), in which I saw a group of kids in the hallway that I had never seen before and asked a teacher about them.  She told me they were students with disabilities who had a class in the basement.  In three years of high school, I had never seen those students before, and I never saw them again.

Instead of casting this issue solely as being about an unfeeling teacher’s union vs a caring school board as the press has done so far — it appears that the school board itself has created and endorsed an illegal situation, of which the union fight is simply an appalling side issue.  If reporters actually care about the treatment of special needs students in this school, they will hopefully continue to investigate and report on the issues impacting ALL of those students.

And if the union pressed it’s grievance in part as some  have suggested as an indirect method of trying to force the Board to address the other issues, those teachers might in future choose a more direct and explicit objection to the mistreatment of the students needing special education, instead of miss-using the plight of a young girl with disabilities who needs their support as some sort of political tool.

Education Lawyer PA NJ