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

 

 

 

 

Special Education Services in the Summer Must be in LRE

Has your school district ever told you that summer extended services for kids with special needs must be provided at their set summer extended school year (ESY) programs?  Have they ever told you that such services must be provided in a program with only other students with special needs?   Have they told you that the Least Restrictive Environment (LRE) rules do not apply to summer ESY special education programs?

According to the 2d Circuit Court of Appeals — all of those statements are wrong!  Instead, a District must consider LRE requirements when providing summer services.  If your child receives instruction with general education students during the school year, the District likely has no right to restrict her to a segregated program over the summer.

“We hold that the IDEA’s LRE requirement applies to ESY placements just as it does to school-year placements. … [the School District] was required to consider a continuum of alternative ESY placements and to offer [the student] the least restrictive placement from that continuum appropriate for his needs. The district court therefore erred in determining that [the School District] met its obligations under the IDEA by offering [the student] only an ESY placement in a self-contained special education classroom.”  http://scholar.google.com/scholar_case?case=17386340325814739564&q=T.M.+v.+Cornwall+&hl=en&as_sdt=6,31

Federal law provides children who have IEPs with a right to be educated in the “least restrictive environment” – which means to be educated with general education students to the maximum extent appropriate.   Because each child is unique, an LRE decision has to be made on a child by child basis.

In the case linked above, the school argued that ESY was exempt from the LRE requirements because summer services were different in kind from services during the regular school year.  But the Court rejected that claim because ESY is an integral component of a child’s education if that child is eligible for ESY.   The school also argued that LRE applies only if the District has an alternative summer program available that includes general education students.  But the Court held that if the District does not have a program that includes general education students, it must either create one or provide the special education students who can be educated in a mainstream setting with summer services outside of the District.

It is current standard practice in New Jersey and Pennsylvania for District’s to create a set summer program of only children with special needs, and all students who need special education over the summer must obtain those services within that segregated program.  Under the legal analysis of the 2d Circuit, this is illegal.   If that analysis is successful here, parents who are offered only a segregated summer program may be able to obtain appropriate mainstream services on their own, and be reimbursed by their school districts.   Or they could bring an action against their school district to force them to offer an appropriate less restrictive summer program.

Parents should carefully consider the summer placement programming – and insist where appropriate on a more mainstream setting.

Good luck!

Special Education Students Failing High Stakes Testing

State-wide testing is a complicated and controversial issue for children with special needs in New Jersey, Pennsylvania and across the nation.

On the one hand, state testing can be a valuable barometer for parents — providing a measure as to how their children are doing as compared to a state or national average that includes all general education students.

On the other hand, schools can put a lot of pressure on students with special needs as test time approaches, often creating unnecessary anxiety and pressure on children already struggling in school.

Worse, in some states there is mandatory retention based on how a student scores, and special needs students are forced into grade retention that might otherwise not be appropriate.  Here is a link to a recent story from Oklahoma, discussing how almost 50% of the special needs third-grade students in that state failed to demonstrate an ability to read.   By Oklahoma state statute, many are now being held back a year.   http://www.tulsaworld.com/news/education/oklahoma-special-education-third-graders-parents-grapple-with-reading-test/article_0c62a0bf-178e-5394-8ecb-cea895115ed5.html    As the news report recounts, this is particularly problematic for students who are severely hearing impaired or have other specific disabilities that render the testing inappropriate.

Many blame the tests themselves, and much of that criticism is deserved.  All testing should be rigorously examined.

However, parents through their IEP teams can certainly battle against districts or teachers who spend too much time preparing for the state testing (because it affects the school’s performance scores) and/or creating misplaced fear and anxiety in vulnerable students.

Parents can also insist where appropriate that their child not be given supports during such testing that are otherwise not provided for the child at school.  Many schools without discussion with parents slip additional services into the IEP only for state testing.  When they do so, it is clearly for the benefit of the school’s performance scores rather than the child, and can undermine the usefulness of the testing for parents.

Most important, parents should not just buy into a school District’s contention that it is the testing that is at fault — rather than that the District has in fact failed to properly educate the students with special needs.   For all of the “progress reports” based on subjective reporting that parents receive from the teachers during the year, an objective state-wide test can sometimes expose this alleged “progress” as less than meaningful.

By way of example, the students in Oklahoma with the more unusual circumstance of deafness or brain damage as discussed in the attached news report do not make up the near 50% of the special education students who failed in reading.   Certainly the actual reading instruction for students with special needs in Oklahoma schools should be heavily scrutinized.

For these reasons, all parents of children in the special education system should be careful about too quickly joining the educators’ call for reduced state testing, and examine instead whether such testing has in fact revealed deficiencies in the services provided by the school.

Remember, in Pennsylvania, Delaware and New Jersey, students with special needs are entitled to programming that provides “meaningful education,” which requires “significant learning” that accounts for a child’s aptitude.   State testing can be a tool to measure whether your school is meeting your child’s needs.

Jerry Tanenbaum, Special Education attorney in PA & NJ

New Special Needs Communication Technology for Students with Autism or Other Disabilities

A father of a non-verbal child with Autism has developed a new communication app that relies on symbols (like the PEC system) for a non-verbal person to communicate with others.  It could be a good addition to special education programming in school for all children with special needs who require a pictorial method of communication.

Most existing systems do not allow for sending messages and e-mails to others utilizing a pictorial system, and instead require the person with autism to be at the same device screen as the person he is communicating with.

This device allows the non-verbal person to communicate with friends, teachers, family and others – so long as they also understand the pictorial message.  It appears to open up an area of vastly increased opportunities for reciprocal social communication for non-verbal persons with Autism or other disabilities who are otherwise not able to utilize the common keyboard to express their ideas.

I have no personal experience with this app, so am not vouching for it by any means — but it seems like a great addition to the existing technology and is at least worth knowing about.  Here is a link:  http://israel21c.org/people/new-israeli-app-for-special-needs-communication/?utm_content=buffer9a7fe&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer

New uses of such technology should regularly be reviewed by parents of children with special needs so that they know the up-to-date options.

I can certainly envision the incorporation of such a device as this into a child’s school special education program (IEP), including possible group programming among a number of non-verbal students.

Leave it to a Parent to have recognized the value in this added component.

Jerry Tanenbaum, NJ and PA education attorney

 

 

Students with Autism Benefit from Play Therapy

“Play therapy,” such as DIR, for students with autism has been known to be effective for a long time now by many who are in or are working with the autism community, but until recently has lacked scientific proofs. 

This is a CBS News report of scientific studies from York University in Canada that have resulted in research based data that supports the efficacy of this type of training.

You can view it here:  https://www.youtube.com/watch?v=D2MZw7Ugccw&feature=youtu.be

It is not surprising to me that the ability to engage and interrelate with our peers is developed in the young through play.  Children with autism are often deprived of that development due to deficits that – without appropriate training – overwhelm them and cause them and their non-autistic peers to withdraw from each other.

For parents of children with autism, these “play-based” therapies are certainly worth looking into, and the growing scientific support can be utilized to seek such therapies in a school-based setting.

Jerry

Pa Student Charged with Crime for Protecting Himself by Recording Those who Bullied Him in School

Wow – here’s a startling story from a school district near Pittsburgh PA.

A special needs child was being aggressively bullied by his class mates – right in front of the teacher – with little to nothing being done about it.  So the kid turned on his I-pod and recorded what they were doing to him.

But when he went to the Principal with his complaint and evidence, the Principal threatened him with “felony charges” and contacted the local police.  Incredibly, although the prosecutor dropped the charges from “wiretapping” to “disorderly conduct” – the child was actually adjudicated as guilty by the local judge.  (Appeal pending)

You can find the story here:   dailycaller.com/2014/04/14/special-ed-student-who-recorded-being-bullied-on-his-ipad-threatened-with-felony-wiretapping-charges/

I understand that PA is a “two-party consent” state for purposes of their state wire-tapping statute — but this is outrageous.  (NJ is a “one-party consent” state by the way)

The principal; the prosecutor; the judge — where was their common sense, and where was their concern for the victim?

Would they charge a woman who used her cell phone to record a sexual assault with a crime because she didn’t let her attacker know she was recording?