Students with Disabilities: Sect. 504 Plans Can Be Critical

A student who has an Individualized Education Plan (IEP) is a student who has a disability that is impeding the student’s ability to learn.  Not every disability impedes the ability to learn, however.  Examples might include having diabetes, cancer, epilepsy, using a wheelchair or crutches.  If your child has a disability that does not impede her ability to learn (meaning no IEP), what law protects her if she needs an accommodation?  Section 504 of the Rehabilitation Act of 1973.  It is more relevant than ever.

I’ve heard Sect. 504 plans called IDEA-lite (IDEA is federal law controlling IEPs) because it gave “something” to students with disabilities who don’t qualify for IEPs.  A student with a disability, but where his or her ability to learn was not affected, would often get a health or nursing plan.  For example, a child with diabetes would receive shots at certain times.  These plans, unlike IEPs, lacked enforceability.  Parents had to rely on the good will of the school to see that accommodations or services were provided in such a health or nursing plan.

That changed with new ADA regulations (affecting Section 504) and clarification from Congress that students with disabilities are entitled to evaluation to determine if a Sect. 504 plan is necessary.  In fact, the Office for Civil Rights held that a school placing a child on a “health plan” violated the law by not evaluating for a Sect. 504 plan, in violation of the district’s child-find mandate.

Why does it matter that the school must evaluate for a Sect. 504 plan, even if it puts the child on the country’s best individualized health plan?  Accountability.  Procedure.  Remedies.  The best individualized health plan is only beneficial if it is fulfilled, if procedures are adhered to.  If this very-best-health-plan isn’t followed, then there is no enforcement mechanism.  There is no federal (or possibly state) law to turn to for holding the school accountable.  To the contrary, if a Sect. 504 plan is not followed, the school can be held accountable under federal law, and remedies can be sought under federal law.  We want to believe that our child’s school will do what it agrees to do, but we also want a law to invoke if the school doesn’t.

Contact me at julie@juliemillslaw.com with any Sect. 504 or special education questions.

Advertisements

A great IEP article applicable to life

I like this article by Lisa Lightner titled “6 ways to get your IEP school year off to a great start!” because it can translate to other life situations, including legal matters.  Replace “IEP” (Individualized Education Program, a document developed for a school child needing special education) with dispute with a neighbor, or complaint with a company over a product or service to see that it has applications to many situations.  It focuses on mindset, boundaries, rational approach, documentation, and outcome.  Have a positive mindset–give people a reason to want to help you, not do everything they can to avoid you; know your boundaries in the matter and where you draw the line–some things are non-negotiable, so decide what they are and stick to them; act in a rational manner and leave emotions and pettiness at the door; keep thorough written records and documentation–negotiating from evidence in front of you is far more compelling; and keep your focus on the outcome, not the behavior of the people, so if you want a replacement product then focus on that, not how customer service did this or a manager said that.  Here is the article from the special education blog “A Day in Our Shoes” :

  1. Use this as a chance for a fresh start. Regardless of what has happened in the past, resolve to let everyone start with a clean slate. I’m not saying forgive and forget, if you or your child has been horribly wronged, but give them a chance to do the right thing. Chances are that many of your IEP team members are new this year, so be positive. Give everyone the benefit of the doubt, once. Remember, previous team members may have told your new team negative things as well, so dispel it! Be polite, courteous, and make them wonder why anyone would ever say that you are difficult to work with.
  2. Don’t be a drama mama. Not every situation requires that we amp up to 10 right away. Take a deep breath. Evaluate the situation. Is it a non-negotiable or significant safety issue? Stay level headed. I see a lot of words get tossed around in the Facebook group like “That’s a violation!” or “That’s illegal!” Ok, it may be, but there’s no need to be so dramatic all the time. Drama mamas yell “That’s an IEP violation!” while it may be more productive to say to yourself, “Ok, they are not following the IEP, and my child is not receiving XYZ. What can I do to help fix this?” If someone tries to engage you in petty behavior, don’t.
  3. Keep good records. Document, but only for yourself in the beginning. New school years can be hectic. Therapy sessions may be missed. Scheduling snafus will happen. Like I said above, give everyone the benefit of the doubt, once. Keep good records so that if things do not get on track within the first two weeks or so, you have the data.
  4. Review the IEP. Re-familiarize yourself with it, particularly if you haven’t looked at it in a while. What are your non-negotiables? Certain things like life threatening food allergies, insulin, elopers….some things cannot be skipped even one time.  Make notes of what you want to keep a high priority and what needs to be changed.
  5. Be solution oriented. Don’t just approach your team with problems. Have a few solutions ready for them to implement.
  6. Use the IEP process. There are 5 portions of the IEP process that are particularly conducive to parent participation. Use them. Be fully engaged in the entire IEP process, and stay away from doing things that are not helpful or part of the process. Examples would be cc’ing people on emails who really do not need to be involved, ignoring chains of command and stuff like that.
  7. Stay child focused. When evaluating situations, stay away from what staff members did or didn’t do. Stay focused on what your child did or did not receive, that they need, per their IEP.

The IEP process certainly has its flaws, but it is the system that we’ve been given to use. Use it. You can use it to your advantage. Know your rights, read your procedural safeguards. Regardless of the history between you and your team, you can change it around. Focus on what you can control, and what is going to help your child.

Contact me at julie@juliemillslaw.com with any IEP or special education questions.

August is #NationalMakeAWillMonth!

August is #NationalMakeAWillMonth.  What are you doing to celebrate—having a will prepared this month?  Instead of discussing what happens with a will, here’s what happens without one.

When you die and you have not prepared a will, you die intestate.  The laws of “descent and distribution” in your state kick in, and the court uses these laws to decide who gets what.  The court appoints a person to administer your estate.  The court decides who will care for your children.

Without a will:

  • You don’t decide who gets what assets you own
  • You don’t dictate who winds up your affairs
  • You don’t choose who will parent your children
  • You don’t decide where your pets will go
  • You don’t decide whether you’ll be buried or cremated, or where you’ll be buried

Celebrate #NationalMakeAWillMonth by having a will prepared this month.  Take control of what happens to your assets at death!

All I want is a simple will.

Legal resources for handling your own legal matter should be made more readily available for the public since the cost of hiring an attorney can be too expensive for too many.  In some situations, handling your legal matter yourself can be done if you are diligent about researching what you need, what is available, and what is required.  Unfortunately, the trap of “you don’t know what you don’t know” can ruin the best-laid plans, particularly estate plans.

“All we want are simple wills.”  This statement is followed by the direction that the couple (let’s assume they’re married) wants to leave everything to their spouse first, then the kids.  That does sound simple:  Mike and Carol Brady’s will would leave everything to each other then to their kids.  What could go wrong?

A popular do-it-yourself-will website posted an article that shows the reader how easy it is to write your own will.  First, name your executor.  Second, name “guardians for young children.”  Third, describe how assets will be divided and distributed.  Fourth, sign in front of two witnesses, then have them sign.  This is great too—again, what could go wrong?  This does sound easy.  Who needs an attorney!

Let’s examine the Brady’s “mirror wills” (they mirror each other—all to spouse, then to kids equally).  The first red flag is that the Brady’s have children from other relationships, and like most blended families, the kids aren’t adopted.  In most states, stepchildren do not inherit (unless specifically named).  Here, a typical will would state “I leave all my assets to my wife Carol; if she predeceases me, then to my children in equal shares.”  Mike dies, and all of his assets go to Carol.  Carol dies, and her mirror will states “…all of my assets to Mike; if he predeceases me then to my children equally.”  At Carol’s death, she had inherited all of Mike’s assets from when he died.  Since Mike predeceased her, then all of her assets, including from Mike, go to Marcia, Jan and Cindy.  Those are her children.  Greg, Peter and Bobby are her stepchildren.  What do the boys get?  Nothing under this standard, simple will!

Now let’s examine the do-it-yourself article.  Name your executor—not too hard, although the article did not mention naming successor executors, but most people would know that.  However, “Name guardians for young children.”  I name my brother John Doe and his wife Jane as guardians because they know and love my kids.  What if they divorce—now my kids might be in the middle of a custody fight because both were named guardians.  What if my brother John is killed in a car accident—does my sister-in-law keep my kids?  She would if both are named.  Or at brother John’s death would I then want my kids to go live with my sister so my kids remain with a family member?

The best (insert a little sarcasm) advice is “describe how assets will be divided and distributed.”  That appears easy to do—divided evenly among my 3 kids.  I see that phrase often in wills, “to my children equally.”  Dad dies, Kid 1, Kid 2, and Kid 3 each get an equal share of his estate.  But what if Kid 3 died before Dad?  An attorney would counsel you, and prepare accordingly, whether you want your estate divided between Kid 1 and Kid 2, or if you want one share to Kid 1, one share to Kid 2, and one share to go down to the children of Kid 3 (Dad’s grandchildren).

Most people who do their own wills and estate plans think the documents are good, but they don’t know what they don’t know, and they definitely won’t know because they’ll be dead when any problems are discovered (“oops, Dad disinherited his grandkids”).  Simple wills are not that simple in many instances.

Choosing a guardian for your children: the Value Majority Test

Who finds it pleasant to think about their children being raised by someone else?  No one.  However, if you don’t tell the court who to appoint as guardian, then a judge you do not know, and who does not know your family, will decide for you.  Would your child prefer to have a stranger make that decision?  No.  This choice is yours to make.  Get paper, a pen, and try this approach.

  1. List everyone who is a possibility as guardian, even a remote possibility. This might include friends.  Single people.  People with no kids.  People with grown kids.  People who live far away.
  2. Next, take the Value Majority test. List five values that are most important to you, and choose candidates from your list who share at least three of these values with you.  This is my partial values list as an example to get you started:  parenting style;  attitude about education, work, money; faith, religion practices, beliefs; social values; attitude about closeness with family, friends.

 Now you should have a list of people who rank as good candidates.  You should choose at least three.  What if you have several people who meet the test and make good candidates, but you wish to shorten your list?  Here are some of my observations.  First, it can be disruptive to uproot children from everything that is familiar to them, so if Joe lives in your area but Jane lives across the country, choose Joe.  Second, a court might not approve a person you designate who has a history involving alcohol or drug addiction, or a criminal record, even if they do share three out of five of your values. Third, please do not name married couples.  Divorce happens to the seemingly best couples, and you do not want your child caught up in a custody battle.  If Mike and Carol Brady both share your values and made your list, choose one as guardian, the other as successor guardian.  Fourth, choose candidates who are likely to keep your children in touch with your family.

Trying this approach should result in at least a few guardian possibilities.  This issue is difficult to think about, but thinking about it is exactly what needs done.

Contact me at julie@juliemillslaw.com if you want to get started on a will to name your guardians.

7 reasons to review your estate plan now

  1. You have no estate plan!  I cannot think of a reason why any adult should not have at least a Last Will and Testament, durable power of attorney, and advance directives (healthcare documents: living will [do you want artificial life support?] and healthcare power of attorney).  If you die or become incapacitated without having any of these documents, state law controls what will happen, not you (through your documents) or loved ones.  This could cause unnecessary and unexpected costs, delays, and loss of privacy.
  2. If any of these have occurred to you or, if married, to your spouse: marriage, death, birth, divorce, second marriage. These occurrences call for a review of your estate plan.  Not reviewing your will and/or trust after any of these events could lead to unintended beneficiaries or fiduciaries.
  3. Speaking of fiduciaries…review the people you designate as fiduciaries in your documents, such as executor of your will, trustee of your trust, guardian of your children, agent in your powers of attorney, to name a few. Are they still alive?  Are they still capable of serving?  Do you still want them to serve?
  4. Review your beneficiaries. Review who you listed to inherit from you.  Are they still alive?  Do you still want to bequeath to them, or add additional beneficiaries?  You should definitely review life insurance and retirement plans and other assets that have beneficiary designations, since the person you name on such a designation will inherit regardless of what your estate plan states.
  5. Your current plan is more than a decade old. There have been many tax and other changes that could affect older plans, but a major change with my practice is that my clients now plan for their “digital assets.”  What happens to your pictures on Shutterfly, or your Facebook and LinkedIn accounts?  What happens to money in your etsy or ebay store’s PayPal account?  Do you want your spouse to have access to your Facebook account at your death?  Or your emails?  These “assets” should be reviewed, and you should consider what you want to happen to them at your death.
  6. Trust funding. There have been so many people who have created a trust plan but did not fund the trust, which meant at death the trust was useless.  You must fund a trust, which means you put assets into the trust—typically by re-titling or deeding assets from you personally, to you as trustee of your trust.  You can fund while living, or set it up so that this funding occurs at your death.
  7. Beneficiary becomes disabled. If a beneficiary has become disabled, or you wish to provide for a beneficiary who is disabled, then it is paramount that you discuss special needs planning, such as a special needs trust, with your attorney.  Leaving assets directly to a disabled beneficiary could jeopardize certain benefits they might receive, such as Medicaid.

If you would like to discuss your estate plan, contact me at julie@juliemillslaw.com.

Letters of Intent–More Information

I received several inquiries after my recent post on Letters of Intent, or instructions for guardians or caretakers of your children or pets.  I have specific forms I have developed for children, pets, and children with special needs.  If you would like pricing for those, email me at julie@juliemillslaw.com, or message me through my law office’s Facebook page.

Letters of Intent can be created by you (versus an attorney), and many parents have done just that.  These can be in-depth, broad, more limited–it’s up to you.  To guide you, here are links to three examples, all from moms who were dying of cancer:

  1. A simple, specific, instructional Letter of Intent, “Mummy Manual”:  http://www.dailymail.co.uk/news/article-346306/The-mummy-manual.html
  2. An in-depth, broad, far-reaching Letter of Intent with guidance:  http://www.telegraph.co.uk/news/health/news/10084492/Dying-mother-leaves-20-point-plan-for-happiness-for-her-family.html
  3. Letters written to child to be given at certain life moments, a series of Letters of Intent:  http://metro.co.uk/2015/07/23/mum-terminally-ill-with-cancer-writes-letters-to-her-four-year-old-to-last-a-lifetime-5308613/

What will be most helpful to your guardian?  What information will help your child the most?  The links to the different letters could be used to guide you in adapting such letters to specific situations, such as pets.

Send any questions to julie@juliemillslaw.com

.