Study: Parents are not planning for future of child with disabilities

A recent “Disability Scoop” article reported on a study in the upcoming April edition of the journal Intellectual and Developmental Disabilities showing that few parents plan for the future of their children with disabilities.  This is not be surprising considering the complexity of planning involved, and the lack of resources afforded these parents.  However, the end result is still the same as with estate planning in general: the person who knows the child and child’s needs best is leaving the future of their child up to someone who does not know the child.  In other words, future decisions are left to the court.

Deciding on residential placement, guardianship, preparing a special needs trust—parents need help navigating this overwhelming journey.  As a special needs planning attorney who prepares special needs trusts, my focus is on securing the financial future of a loved one with special needs without jeopardizing means-tested benefits, typically, Medicaid and Supplemental Security Income.  Planning is particularly important since many children with special needs are living longer, and outliving their parents.

There is more to planning for your child’s future than securing his or her financial future with trusts, however, if your child has a disability.  Where will your child live?  Who will be his or her caregiver?  There are many options available to explore, but knowing where to start is key.  My recommendation is to start with The Arc: For People with Intellectual and Developmental Disabilities.

To learn more, or if you would like more information on special needs planning, email me at julie@juliemillslaw.com.

“Teachers want copies of my child’s IEP–what about confidentiality?”

A parent was concerned that several of her child’s teachers wanted copies of the child’s IEP.  She felt that confidentiality regarding her child, his disability, and his education plans would be jeopardized.  “Are teachers entitled to copies?”

Yes.  And, common sense dictates this even if the law did not, as long as everyone understands their legal obligations.  The law states that teachers, related service providers, and others responsible for implementing the IEP should have easy access to it.  How else are they to know what needs implemented if they do not know what is needed?  I suggest giving copies of your child’s IEP to the teachers and service providers.

“But what about confidentiality?”

The school is responsible for instructing all staff who have access to IEPs regarding their legal obligation to maintain confidentiality of student records, and student information.  Personally-identifiable student information cannot be disclosed to anyone without obtaining parental consent.

Student records privacy is covered by FERPA: Family Educational Rights and Privacy Act.  It provides an array of protections for maintaining confidentiality of student records and information.  Most relevant to parents, in my opinion, is what I mentioned above, i.e., personally-identifiable information.  This information must be kept confidential and includes, but is not limited to:

  1. The student’s name
  2. The name of the student’s parent or other family member
  3. The address of the student or student’s family
  4. A personal identifier, such as the student’s social security number or student number
  5. A list of personal characteristics that would make the student’s identity easily traceable; or
  6. Other information that would make the student’s identity easily traceable.

Schools, under FERPA, can release certain directory information to others without violating FERPA.  “Directory information” generally includes information that, if released, is not considered harmful or an invasion of privacy.  The U.S. Department of Education has listed directory information to include:

  1. Name
  2. Address
  3. Telephone listing
  4. Date and place of birth
  5. Participation in officially recognized activities and sports; and
  6. Dates of attendance

What differentiates two seemingly-similar lists is the use of the information.  Directory information is what you see in yearbooks, school directories, and other publications where there is generally no harm or invasion of privacy if released.

If you have questions have your child’s IEP, confidentiality, or FERPA, contact me at julie@juliemillslaw.com.

Divorce–special considerations for when a child has special needs

Divorce with a special needs child–the special considerations that need addressed by divorcing parents, their attorneys, and courts could fill a book.  This much-shorter blog post will try to shed light on why this topic requires more careful attention.

Divorce is a difficult and painful process for everyone involved.  Parents must work out arrangements for custody, visitation, and child support.  Standard child support “tables” or calculations, and general “parenting plans” spelling out visitation, guide most divorcing parents in making their decisions.

“Standard” or “general” guidelines, tables and plans are to be assessed carefully, however, when the divorcing parties have a child with special needs.  A typical child support calculation, or standard visitation schedule, might be completely inappropriate for situations where a child has disabilities.  Why?

Visitation often includes alternating weeks, or weekends, where a child goes back and forth between parents’ homes.  For a child on the autism spectrum, for example, such a disruption in routine might be unbearable and ultimately unworkable.  Or, if a child with a disability requires durable medical equipment that cannot be transported, one parent might have to visit their child where the equipment is located—in his or her ex-spouse’s home.  The child’s interests must come first, and in these situations, working out visitation can be tricky.

Child support for a child on varying medicines, therapies and treatment programs that might not be covered by insurance cannot be calculated by standard tables.   Child support payments might need to be made to a special needs trust to avoid disqualifying the child from receiving means-tested benefits (typically, Medicaid).

Spousal support for a parent who gives up his or her career to care for a disabled child—a full-time job—takes on special consideration.  Division of retirement and marital assets must account for the parent who forfeited his or her earnings potential and social security credits to serve as caregiver for a disabled child.

This post mentions only a few of the myriad of issues that are presented with divorcing parents who have a child with a disability.  Parents, their attorneys, and courts need to assess what special needs exist, how to address what is needed, and how to incorporate those needs into visitation, custody, and child support.

If you are considering divorce and have a child with special needs, feel free to contact me with any questions at julie@juliemillslaw.com.

Home-based food business in Ohio–how to do it legally

I love practicing law, but if I had the recipe for my friend’s grapefruit marmalade, or family member’s pepper butter, I’d be very busy making these items and making a lot of money selling them with my home-based food business.  If you want to make food items to sell, what are the rules?

Many people make goods to sell at their local farmer’s market.  This has spawned the “cottage food” industry—making food to sell at local venues.  The first thing to keep in mind is that, if you want to ship food outside of your state, you typically need to meet more requirements (licenses, inspections, labeling, etc.) than what is required under cottage food industry regulations, because these regulations pertain to making specific items typically from a home kitchen, and selling locally.

Let’s assume, then, that you want to make food items in your kitchen and sell them at your local farmer’s market.  I will also assume you reside in Ohio, the state where I practice law.  (If you reside elsewhere, be certain to check your state’s requirements for home-based food business.)  Ask yourself the following questions to determine whether you need licensed, and what other requirements you might need.

  1. Is your product included in the “cottage food” list? These are non-potentially hazardous food items listed specifically in Ohio Administrative Code Section 901:3-20-04:
  • Non-potentially hazardous bakery products (such as cookies, breads, brownies, cakes, and fruit pies)
  • Jams
  • Jellies
  • Candy (including no-bake cookies, chocolate covered pretzels or similar chocolate covered non-perishable items)
  • Fruit butters
  • Granola, granola bars, granola bars dipped in candy
  • Popcorn, flavored popcorn, kettle corn, popcorn balls, caramel corn (does not include un-popped popping corn)
  • Unfilled, baked donuts
  • Waffle cones
  • Pizzelles
  • Dry cereal and nut snack mixes with seasonings
  • Roasted coffee, whole beans or ground
  • Dry baking mixes in a jar (for making items like breads and cookies)
  • Dry herbs and herb blends
  • Dry seasoning blends (such as dry barbeque rubs and seafood boils)
  • Dry tea blends
  • Flavored honey produced by a beekeeper, if a minimum of 75% of the honey is from the beekeeper’s own hives;
  • Fruit chutneys;
  • Maple sugar produced by a maple syrup processor, if at least 75% of the sap used to make the maple syrup is collected directly from trees by the processor;
  • Waffle cones dipped in candy;
  • Dry soup mixes containing commercially dried vegetables, beans, grains, and seasonings.

If your food product is specifically included in this list, it is a “cottage food” and you do not need a license to sell it.  On the packaging, however, you must state that the product is “home produced.”  (Click here for more labeling and packaging information.)

  1. Is your food product not a cottage food? Then you need licenses and possibly a home inspection.
  • If you are making foods considered potentially hazardous, then you need to comply with Ohio’s regulations for “home bakeries.” Potentially-hazardous foods include baked goods that need refrigerated, such as cheesecakes, filled doughnuts, cream and custard pies.  You will need licenses (Ohio Department of Agriculture, and local health department) and a home inspection, but you can sell outside of Ohio.
  • Certain foods require production in licensed facilities, or in canneries. These include salsas, BBQ sauces, canned vegetables, frozen foods and homemade hummus, which must be produced in a licensed facility.  In fact, salsas, BBQ sauces, and canned vegetables must be produced in a licensed cannery.

For more information on home-based food businesses in Ohio, visit the Ohio Department of Agriculture’s websiteContact me at julie@juliemillslaw.com to discuss starting your own home-based food business.

 

 

Surviving family, and the aftermath when a hoarder dies

Grieving is difficult after a family member passes away.  Wrapping up the deceased’s affairs can add stress to grief, particularly if the person who died was a hoarder.  A home that should take a month or two to clear out might take a year or more to empty.  Hoarding is a mental condition related to anxiety, and to obsessive-compulsive disorder, and unfortunately is often left untreated.  This article provides a good description of the situation faced by surviving family when a loved one who was a hoarder dies.