By Adam Wilson, Esq. | Hinkle Prior & Fischer, Attorneys at Law
1) My child is turning 21 and is scheduled to graduate in June. After being out of school since mid-March, I don’t think he is ready, and his post-secondary program is not ready for him. He would basically transition to nothing. What should I do?
This is an incredibly difficult situation. Under the standard special education law special needs students are entitled to a free and appropriate public education until their educational entitlement runs out, which is usually the end of the school year in which the student turns 21. However, if it is determined that a student did not receive an appropriate education in their final year(s) of school, they can continue to receive services after their educational entitlement would ordinarily have ended. The purpose of this extended education is to put the student in the position that they would have been in had they received an appropriate education. These extra educational services are referred to as “compensatory education.”
It is not certain how compensatory education claims related to the Covid-19 school closures will be treated. The U.S. Department of Education has issued guidance which states that IEP teams will have to make determinations about which students will need compensatory education as a result of school closures on a case-by-case basis when schools resume normal operations. Unfortunately, until then there is little a parent can do to get clarity regarding what their child will be entitled to receive. For now, the best thing that you can do is to make sure you are meticulously documenting what services your child is receiving, what services your child is not receiving, and how your child is doing (are they regressing on some specific skills?), and share this information with your school district in writing. Additionally, if the school district tries to graduate your child without offering compensatory education, you should file for Mediation or Due Process to protect your child’s rights.
The adult services side of the situation is also difficult. Adult day programs in New Jersey are closed at the moment and it would be extraordinarily difficult to determine what program would be right for your child’s needs without being able to visit them. You should contact your support care coordinator and do the best you can to select adult services that can begin when normal operations resume.
2) My CST told my daughter’s school program that they would not pay for her 1:1 aid during remote learning. A 1:1 is in her IEP and I think she still needs the extra help. Are they allowed to do that?
It’s important to remember that the general principles of special education still apply during this widespread school closure. As such, to the extent that services contained in an IEP can be provided effectively, those services should still be offered even during the current school closures. However, school districts do not have to provide in-person services during the school closure. The answer to whether a school district needs to supply a 1:1 aide will depend at least in part on what kind of assistance the 1:1 offers to the child during normal circumstances. If an aide’s duties are primarily physical in nature (assisting with ambulation/transitions, physically responding to behaviors, preventing elopement, etc.), then providing the service remotely at this time may not be helpful/worthwhile. On the other hand, the 1:1 aide’s duties are primarily verbal (redirecting a student to task, assistance with reading/repeating instructions, etc.), then it may be appropriate for the services of the 1:1 aide to continue.
The best course of action for a parent in this situation is to communicate your request for the aide to the school district in writing. Make sure to detail why you think the aide would still be helpful and what kinds of assistance could be provided. To the extent possible, try to be flexible with the school district and treat it as a collaborative process rather than a combative process. If the school district refuses to provide the service, there is probably not any way to force them to provide the service at the moment, but it may be possible to get compensatory education in the future as a result of the school district’s failure to provide a service included in your student’s IEP.
3) My district has asked me to sign a waiver before they begin related service. The waiver says I waive my rights to any and all claims. What does that mean? I want services to begin and feel pressured to sign this.
You should absolutely not sign a waiver of rights before educational services are provided. During this period of school closure school districts are still obligated to provide your child with the services in their IEP to the extent that it is possible/helpful to do so. If the school district is pressuring you to sign a waiver, they are doing so in violation of specific guidance recently provided by the New Jersey Department of Education when it learned about these efforts on the part of districts. In its April 30 memo entitled “Parental Waivers for the Delivery of Remote or Virtual Special Education and Related Services,” the department explicitly prohibited these efforts:
“Consistent with the guidance previously issued by the NJDOE as well as guidance issued by the U.S. Department of Education during the COVID-19 public health emergency, school districts must implement a student’s Individualized Education Program (IEP) to the greatest extent possible. Requiring the execution of a waiver or release of present or future claims as a condition to implement a student’s IEP is prohibited.”
Read our From the Capitol post on the department’s April 30 guidance now.
4) My child gets SSI. Will she get a stimulus check? How will that affect eligibility for Medicaid?
Adult individuals who are receiving Social Security benefits who don’t have to file federal income taxes each year will automatically receive a stimulus check via direct deposit into their Social Security account. The deposits into the account will not be treated as income to the beneficiary, so they won’t affect Medicaid/Social Security eligibility in the month the stimulus is received. Furthermore, the Social Security Administration has announced that the funds will not be treated as a “resource” of the individual for 12 months. As such, receiving a stimulus check should not have an impact on an individual’s Medicaid eligibility. However, everyone who relies on means-tested government benefits should make sure that the stimulus funds are spent or transferred to an account that will not be treated as a resource within 12 months of receipt (such as a prepaid funeral trust, an ABLE account, or 1st-party special needs trust).
Adam Wilson is an attorney at Hinkle Prior & Fischer, Attorneys at Law. The firm’s practice is dedicated entirely on serving people with disabilities and their families. Adam’s practice focuses on special education, guardianships, and estate and trust matters. He frequently speaks on topics affecting the special needs community and teaches a continuing legal education course on the fundamentals of estate planning.
