It is not unusual for a student with a disability to have challenging behaviors that are self-injurious or self-stimulatory, or that involve property destruction or aggression. These can interfere with the student’s ability to benefit from education, and can negatively affect the educational experience for the entire class. Interventions and strategies to address behaviors should be included in the student’s Individual Education Plan (IEP).

The IEP is designed to address a student’s individual needs for special education and related services. Therefore, when a student has challenging behaviors, the IEP team must discuss strategies and behavioral supports that can benefit the student. Before they can develop a plan to address the behavior, they must first understand more about the purpose, or function of the behavior.

A functional behavioral assessment (FBA) is used to determine the underlying cause of the behavior. Often, it includes direct observation of the student and the collection of data to help determine the antecedents—what comes before the behavior occurs—as well as the frequency, intensity, and duration of the behavior. Parents have the right to request that the school conduct an FBA. The information obtained from this assessment can guide the IEP team in the creation of a behavior intervention plan (BIP) to identify positive strategies, program modifications, and supplementary aids and supports that increase positive behaviors and diminish disruptive ones. Programs might include individualized motivational systems like a token or point system, praise, or other positive reinforcement.

A student’s behavioral needs can also be addressed through related services, such as counseling, social skills instruction, behavioral therapy, and/or a one-to-one aide trained to help the student with his or her behavioral needs.

School districts may argue that they are not responsible for students’ behavior outside of school, and while there are no black-and-white rules, schools often must provide services to assist with these challenges, as it is important that behavior skills generalize across all settings—including school, home, and the community. Sometimes this can be done through parent training and community-based instruction. In other cases, more intensive services must be provided, such as an in-home program of ABA therapy (Applied Behavior Analysis), or even placement into a highly structured residential program.

The key question is whether the services provided, taken as a whole, are appropriate to address the needs of the student. A student’s behavioral needs may impact placement options. He or she may need to be placed in a particular class, a private specialized school, or even in a structured residential program, to ensure an appropriate education.

• The firm helped the parents of a 22-year-old woman with an intellectual disability secure an appropriate residential placement in a group home, after the New Jersey Division of Developmental Disabilities placed her in a foster care home.
• The firm helped the family of an 18-year-old with severe autism obtain in-home supports from the Department of Children and Families.
• Attorneys of the firm successfully litigated on behalf of a young student with multiple disabilities to ward off efforts by the student’s school district to place him into a regional school for students with disabilities. The judge agreed with arguments made by the firm that the school district was essentially trying to “rid itself” of a challenging student, rather than make sincere efforts to accommodate his needs within his local elementary school. The case is significant due to the judge’s strongly-worded repudiation of the illegal practice of deciding to change a student’s placement before determining his educational needs through the IEP process.
• The firm helped the parents of a 22-year-old woman with an intellectual disability secure an appropriate residential placement in a group home, after the New Jersey Division of Developmental Disabilities placed her in a foster care home.
• The firm helped the family of an 18-year-old with severe autism obtain in-home supports from the Department of Children and Families.
• Attorneys of the firm successfully litigated on behalf of a young student with multiple disabilities to ward off efforts by the student’s school district to place him into a regional school for students with disabilities. The judge agreed with arguments made by the firm that the school district was essentially trying to “rid itself” of a challenging student, rather than make sincere efforts to accommodate his needs within his local elementary school. The case is significant due to the judge’s strongly-worded repudiation of the illegal practice of deciding to change a student’s placement before determining his educational needs through the IEP process.
• Hinkle, Fingles and Prior got the New Jersey Division of Developmental Disabilities (NJDDD) to reverse itself on the issue of services for a young adult with high functioning Asperger’s syndrome, allowing the young man to access self-directed funding to pay for services.
• The firm represented the father of a young woman with Down syndrome in a hotly contested guardianship matter. Their victory on his behalf allowed him to remain active in his daughter’s life following a divorce.
• The firm represented a woman with developmental disabilities whose funding for residential services was terminated by NJDDD after she had been receiving residential services in the same location for 49 years. Although NJDDD refused to reverse itself, attorneys at the firm persuaded the New Jersey Superior Court, Appellate Division to restore funding for the woman’s program during the pendency of a hearing.
• The firm represented a 19-year-old student with autism who had been expelled from a private school because of behavior. The negotiated settlement with the local board of education allowed the student to secure a customized transition program with highly trained staff.
• Hinkle, Fingles and Prior intervened on behalf of a client and got the Division of Developmental Disabilities to reverse itself on the issue of services for a young adult with high functioning Asperger’s syndrome, thereby allowing the young man to access self-directed funding to pay for day services.
• The firm represented the father of a young woman with Down syndrome in a hotly contested guardianship matter. Their victory on his behalf allowed him to remain active in his daughter’s life following a divorce.
• Thanks to the involvement of Hinkle, Fingles & Prior, a young adult with disabilities obtained permanent residential placement with a coordinated education program.
• Hinkle, Fingles & Prior secured retroactive and continued funding of an out-of-state residential placement for an individual with severe disabilities after the NJ Division of Developmental Disabilities arbitrarily terminated funding for his placement.
• Hinkle, Fingles & Prior secured funding for a student with disabilities after the NJ Division of Developmental Disabilities refused to continue funding the placement when he aged out of his educational entitlement.
• The firm was successful in its efforts to secure an emergency residential placement for two different clients. One client, a 21 year-old man with autism and challenging behavior had recently graduated from a special education program. After the firm’s intervention, DDD agreed to place the man in a community-based group home in Monmouth County.
• A 22-year-old woman with autism had been placed privately in an out-of-state residential program. When her parents could no longer afford to pay for the program, she was asked to leave. With legal help from the law firm, the New Jersey Division of Developmental Disabilities placed the young woman on an emergency basis in a group home within New Jersey.
• The firm was successful in efforts on behalf of a 4th grade student who is deaf. The district sought to remove the Teacher of the Deaf, suggesting that an interpreter and special education teacher would be sufficient. The firm argued against this change, as it would compromise the student’s ability to learn in the general education class. The team agreed to keep the Teacher of the Deaf for necessary subjects.
• The firm successfully secured a less restrictive placement for an 8-year-old boy with Encephalopathy who had been placed in out-of-district placement. The boy’s parents sought a placement that would offer more access to typical peers, but when the district refused to send his records to other programs, the parents filed for Due Process. With the firm’s assistance, the parties were able to reach an agreement at mediation in which the district agreed to send the child’s records to the requested programs, and he was placed in an extended school year program to focus on his individualized needs.
• The firm successfully obtained an appropriate educational and residential placement for twin 11 year-old girls with autism and severe behaviors. After the firm filed suit against the twins’ school district, they were placed in a specialized school for individuals with autism. The firm also negotiated with the New Jersey Division of Developmental Disabilities and obtained a community-based group home operated by a program that will address the girls’ behaviors.
• The firm successfully represented a client with Aspergers Syndrome and bipolar disorder who was seeking services from the Division of Developmental Disabilities. The 15-year-old teen had been denied eligibility based on DDD’s assertion that his mental health issues were more severe than his developmental disability.
• The firm was able to secure reasonable accommodations for a law student sitting for the Bar exam. The Board of Bar Examiners had granted the student a 50% increase in time, over a two-day period. This would have required the student to sit for two ten-hour days – nondisabled candidates only had to sit for 7 hrs. As a result of the firm’s intervention, the candidate was awarded full relief: 100% extended time over a three-day period.
• After filing for due process, the firm was able to resolve a special education dispute against a school district by agreeing to be bound by the recommendations of an expert chosen by the family.
• The firm was able to obtain an out of district residential placement for a student with autism and severe behaviors. As part of the settlement, the district agreed to reimburse the family nearly $50,000 in attorneys’ fees.
• The firm was able to secure a residential placement funded by the Division of Developmental Disabilities for an adult with autism.
• The firm was successful in negotiating a settlement in which a four-year-old preschooler with autism was able to remain in his local school district with a comprehensive program of supports and services. The binding settlement included Occupational therapy, physical therapy, a behavior intervention plan, a home-based behavior intervention services and a longer, more comprehensive extended school year program.
• As a result of a settlement reached in complex litigation against the Commonwealth of Pennsylvania and other municipal authorities, the parents of a young adult with autism were awarded in excess of $100,000 reimbursement for the costs of placing their child into a specialized residential program located in New Hampshire. Pursuant to the agreement, the Commonwealth also guaranteed to pay for the individual’s placement in the program for the rest of his life.
• Attorneys of Hinkle, Fingles & Prior successfully settled a case against a New Jersey school district involving a young man with a chromosomal abnormality. Pursuant to the settlement agreement, the young man’s local school district will provide funding for the costs of a college-based post-secondary program for students with disabilities in which the student will learn a variety of vocational, academic, and independent living skills.
• Attorneys of Hinkle, Fingles & Prior successfully settled a case against a Pennsylvania school district Involving a young man with Aspergers Syndrome and other disabilities. Pursuant to the settlement agreement, the young man’s local school district will reimburse the student’s parents for the costs they expended in sending the student to a specialized school for high-functioning students with learning and other disabilities located in Rosemont, Pennsylvania, and will also keep the student at the school for the next two school years.

Maria Fischer, Esq. has been appointed to the board of directors of Special Olympics NJ.

Herbert D. Hinkle has been appointed to the board of PLAN, NJ, where Ira M. Fingles also serves as board member emeritus.

Team Hinkle, Fingles & Prior Raises Over $3,000 for Special Olympics New Jersey – A team of 52 employees, family members and friends from the firm took part in Special Olympics’ Jingle All the Way ‘fun run’ to raise money for Special Olympics New Jersey. Together, they collected over $3,000 in donations. The team was led by Maria Fischer, an attorney with the firm whose daughter, Traci, is an SONJ athlete.

“As a long-time corporate partner with SONJ, we are extremely proud to have such a large turnout for this year’s event. Two of our employees have children who are Special Olympics athletes. They, along with the other SONJ athletes on our team, are an inspiration to us all and serve to remind us of our firm’s mission,” said S. Paul Prior, Esq., a partner with the firm. More than 500 participants took part in the 2012 Jingle All the Way, raising $30,000 for Special Olympics New Jersey. For more information, visit www.sonj.org.

Andrew Linenberg, Esq. has been appointed to the Special Needs Committee of Jewish Family and Children’s Services of South Jersey (JFCS). There, he will be working to support the organization’s outreach and services to seniors and those with a range of disabilities. JFCS, located in Cherry Hill, provides comprehensive, caring social service to those of all ages, faiths and economic backgrounds who live in Camden, Burlington and Gloucester Counties in Southern New Jersey. “I am deeply honored to have this opportunity to give back to the community, and be part of an organization with such an important mission,” said Linenberg.

Hinkle, Fingles & Prior is proud to support ASAH, New Jersey’s network of private schools serving students with disabilities and their families. As part of the effort, the firm will help ASAH launch an initiative designed to support effective transition from school to adult life, with workshops, IEP clinics, webinars and other services at ASAH member schools statewide. The firm will also be underwriting a scholarship for a graduate of an ASAH school. Pictured above: ASAH Executive Director, Gerard T. Theirs, left, ASAH Board President, Dr. Dorothy K. Van Horn, center, and S. Paul Prior, Esq., right, at ASAH’s offices on the occasion of the announcement of the organizations’ Transition Initiative.To learn more, go to www.asah.org, or call ASAH at 609-890-1400.

The Eden Family of Programs recently recognized Herbert Hinkle for his work on behalf of children and adults with autism. At right, Herb joins staff at Eden Family of Programs’ group home, Hinkle House, named in his honor.

Hinkle, Fingles & Prior attorneys, staff and their families helped raise awareness by participating in the Autism Speaks Walk, held at Mercer County Park in Hamilton, NJ, earlier this fall. Pictured left: Donna Koscos, left, S. Paul Prior, Esq., center, and Maria Fischer, Esq., right, on hand with information for walk participants on event day.

This spring, Hinkle, Fingles and Prior donated more than 3,000 copies of its booklet, Health Care Advocacy Across the Lifespan, to SPAN, the Statewide Parent Advocacy Network. This is the second printing of the popular booklets.

Herbert D. Hinkle, Esq. and his wife Patricia have established an ongoing scholarship at Rutgers School of Law, Camden for students who participate in public interest work involving people with disabilities and/or estate planning. Mr. Hinkle is an adjunct professor of law at Rutgers Law School, Camden, where he teaches trusts and estates, and estate planning.

The attorneys helped Autism New Jersey, formerly COSAC, launch the Autism New Jersey Foundation. They are proud to be charter supporters of that foundation.

The firm supports Special Olympics New Jersey as a bronze level sponsor.

The firm is proud to support the work of the Arc of New Jersey as an annual sponsor of their Walkathon.

The attorneys regularly provide speaking and workshop services at no charge to parents, family groups and organizations in Pennsylvania and New Jersey. Click here to learn more about speaker and workshop services we offer.

The United States Department of Education’s Office of Civil Rights (OCR) recently released a groundbreaking directive requiring school districts to provide equal extracurricular athletic opportunities for students with disabilities. The directive explains that school districts must fulfill their responsibilities by providing extracurricular athletic opportunities in compliance with Section 504 of the Rehabilitation Act (Section 504).

Section 504 requires school districts (public schools and charter schools) to provide a student with a disability an equal opportunity to participate in, and benefit from, the programs that the district offers to students without disabilities.

Section 504 does not say that every student with a disability has an automatic entitlement to participate in extracurricular athletics. Districts can still require that students demonstrate a certain skill level in order to participate in extracurricular athletics. Section 504 makes it clear, however, that the selection or competition criteria cannot be discriminatory. This general requirement has multiple specific implications:

1. School districts cannot rely upon stereotypes or generalizations in assessing whether a student with a disability has the skill level necessary to participate in the athletic activity. Rather, an individualized determination of each student’s actual skill level is required. In other words, a school district can require all students (with or without a disability) to try out and be assessed on his or her actual skill level and nothing more.
2. If a school district offers extracurricular athletic opportunities, it must also provide equal opportunities for students with disabilities to participate. In order to do this, a district must make reasonable modifications and provide aides and services necessary in order for students with disabilities to have an equal opportunity to participate in extracurricular athletics. A district can avoid providing modifications only if it can show that providing them will fundamentally alter the game or give an unfair advantage to a student with a disability over other players. (For example, adding an extra hoop in basketball, or giving a batter an extra strike in baseball.) OCR’s directive makes clear that although schools may try to argue that a modification would be an undue burden to its program, such defense is rarely, if ever, successful.
3. School districts must ensure equal opportunities for students with a disability to participate to the same extent as typically developing students, and they must be allowed to participate to the maximum extent appropriate. Therefore, it is discriminatory to provide different sports leagues or services for students with disabilities that are separate from those of students without disabilities — if such separation is not necessary. However, when the interests and abilities of some students with disabilities cannot be met by the district’s existing extracurricular athletics program, the school district should create additional opportunities for students with disabilities.

The big picture?

Students with disabilities must be afforded an equal opportunity to receive the benefits of extracurricular athletics. If a district cannot meet the needs of students with disabilities in their existing athletics programs, the district must create different athletic opportunities for students with disabilities. In such instances, districts must provide equal support as is furnished to the districts’ other athletic programs and teams. Alternatively, districts could develop district-wide or regional teams. Districts can seek technical assistance, guidance, training and support from organizations that have provided competitive sports programs for individuals with disabilities, such as Special Olympics. In its directive, OCR strongly encourages districts to work with families, advocacy and community organizations, and athletic associations to find creative ways to create and expand extracurricular opportunities for students with disabilities.

Parents of students who wish to participate in extracurricular athletics should be sure to incorporate requests for modifications as well as the specific modifications required in a student’s IEP or 504 plan during their next meeting, if not sooner.

The Importance of Maintaining Medicaid Eligibility

The New Jersey Division of Developmental Disabilities (DDD) is changing the way it is doing business. Under DDD’s new eligibility rules, services will only be provided to individuals age 21 years old and older who are eligible for DDD and Medicaid. (For a comprehensive explanation of DDD’s new eligibility rules, visit our recent article). These rules require individuals to maintain Medicaid eligibility; any loss of eligibility can result in the interruption or termination of services. Therefore, it is vital for families of an individual with a disability to make sure they preserve Medicaid eligibility by ensuring family members keep assets and income below certain limits, spend down excess assets, or create a special needs trust. Each of these methods will be discussed below. Now more than ever, it is imperative individuals, parents and guardians understand the Medicaid programs available and take the steps necessary to become and maintain eligibility.

Below is a brief explanation of some ways an individual can be Medicaid eligible:

Supplemental Security Income (SSI)

SSI provides monthly cash payments to individuals in need. In New Jersey, individuals determined eligible for SSI are also eligible for Medicaid. The criteria for SSI eligibility are:

• An individual who is at least 65 old, or blind, or disabled;
  • The Social Security Administration defines being disabled as the inability to engage in substantial gainful activity (SGA). In 2013, SGA is the ability to earn more than $1,040 per month.
• Has limited income (currently $741.25 per month); and
• Resources of not more than $2,000 from all sources combined.

Most individuals with disabilities qualify for SSI at age 18 and, therefore, receive Medicaid under this program.

Disabled Adult Child Status (DAC)

An individual with a disability is sometimes eligible for Social Security benefits based on the work history of their parent. This usually happens when a parent begins collecting his or her own Social Security benefits. Often, the amount provided to the individual with a disability is above the income limit for SSI, therefore, the individual loses both SSI and Medicaid benefits.

In some instances the individual with a disability may be eligible for continued Medicaid benefits as a Disabled Adult Child (DAC). The criteria for being considered a DAC are as follows:

• The individual with a disability is at least 18 years old;
• The disability manifested before age 22;
• The individual has been receiving SSI due to his or her own disability; and
• Individual lost benefits because he or she starts receiving Social Security benefits on the work history of their parent or due to an increase in those benefits.

It is important to understand that DAC status protects the individual with a disability from losing Medicaid Benefits based on having income over the allowable limit; however, it does not waive the resource limitation. Therefore, resources need to remain below $2,000.

Community Medicaid

This program provides Medicaid to individuals unable to afford the health care they need. The criteria for eligibility in this program are:

• The individual is at least 65 years old or is blind or disabled;
• Resident of New Jersey;
• Has limited income (currently $958 per month)
• Resources of not more than $4,000.

This program is available to individuals with a disability that are unable to qualify for SSI or unable to qualify for Medicaid as a DAC.

New Jersey Workability

This program offers full New Jersey Medicaid health coverage to individuals with disabilities who are working. The individual is charged a small premium under this program. The criteria for eligibility in this program are:

• Individual is between the ages of 16 and 64;
• Working either full or part time;
• Determined to be disabled by either the Social Security Administration or The State of New Jersey;
• Earned no more than $58,236 per year;
• Has unearned income no more than $958 per month; and
• Has less than $20,000 in liquid assets (excluded from assets are Social Security Disability Benefits, Railroad Retirement System Benefits (based on the individuals account), qualified retirement accounts, the value of a home and car.

What if the individual with a disability has resources above the allowable limit?

The resource limit is a cap on assets owned by the individual with a disability. This includes bank accounts, Uniform Gift to Minors Act (UGMA) or Uniform Trust to Minors Act (UTMA) accounts, stocks, bonds, or qualified retirement accounts (with the exception for the NJ Workability Program).

In these instances the excess resources can be spent for the individual’s needs, so long as, the items purchased are for Fair Market Value (FMV). This is often referred to as “spending down” resources. Examples can include reimbursement of expenses paid by others, extra therapies, personal items, some forms of necessities, trips or vacations, and similar items. For instance, some families incur significant expenses providing therapies for an individual with a disability, such as ABA, PT, OT, and SLT. Spending down resources includes reimbursing family members for these expenses.

However, spending down resources cannot be achieved by simply giving away funds to family members or transferring funds to other accounts. An individual with a disability will incur penalties and periods of ineligibility if funds are handled incorrectly. Careful thought should be given when planning to engage in a spend down of the individual’s assets. If you are unsure about how to go about this, consult a professional. The effort be worthwhile in order to avoid disastrous results.

Where the assets are substantial or the individual’s needs are already being met, the assets can be placed in a Special Needs Trust (SNT). In most cases, because the assets belong to the individual seeking to establish or maintain Medicaid eligibility, the trust is required to have a “payback” provision. This provision requires that the State Medicaid agency is repaid upon the death of the individual with a disability from the assets remaining in the trust up to the amount that was spent by Medicaid for care during the individual’s lifetime. This type of trust is sometimes referred to as a “payback” trust.

The Importance of Advanced Planning

Finally, it is vital for families of an individual with a disability to create an estate plan which includes a SNT. When a family plans ahead in this manner, the type of SNT created does not require a “payback” provision because the trust will be funded with assets belonging to the parents or other family members. This type of SNT is commonly referred to as a “third party” SNT. Absent proper estate planning, when the parents of the individual with a disability die; the individual may inherit assets that would jeopardize Medicaid eligibility. For more information on this topic, please visit our Estate Planning archive of articles at www.hinkle1.com/category/estate_planning/.

On January 1, 2013 the Department of Children and Families (DCF) assumed responsibility for determining eligibility and providing services for children and young adults with developmental disabilities under the age of 21.

In late December, most families eligible for services from the Division of Developmental Disabilities (DDD) received a letter from a group known as PerformCare advising them that the Division of Children’s System of Care (CSOC) under DCF is now the agency responsible for the provision of services for their child.  DCF recently established rules to govern the eligibility and the provision of services from CSOC.

Parents need to be aware of the following rules to ensure continued appropriate services are provided to their child.

Q: What are the criteria for eligibility for Services from DCF?

A: The DCF definition of a developmental disability is the same as DDD’s. It means a severe, chronic disability of an individual, which:

• Is attributable to a mental or physical impairment or combination of mental or physical impairments:
• Is manifest before age 22;
• Is likely to continue indefinitely;
• Results in substantial functional limitations in three or more of the following areas of major life activity;
  • Self-care
  • Receptive and expressive language
  • Learning
  • Mobility
  • Self-direction
  • Capacity for independent living
  • Economic self-sufficiency; and
• Reflects the need for a combination and sequence of special interdisciplinary or generic care, treatment of other services, which are of lifelong or extended duration and are individually planned and coordinated.
• Developmental disability includes, but is not limited to, severe disabilities attributable to intellectual disability, autism, cerebral palsy, epilepsy, spina bifida, and other neurological impairments where the above criteria are met.

Q: If my child was already determined eligible by DDD, do I need to apply to DCF?

A: Children under the age of 21 who were determined eligible for services by DDD prior 2013, do not have to apply to DCF and are automatically eligible for services from CSOC.  Teens and young adults between the ages of 16 and 21are also able to receive “transitional services” from DDD.

However, children born on or after January 1, 1997 who were determined eligible by DDD do not have to apply to DCF and are eligible to receive services from CSOC, but they must reapply to DDD at age 18 in order to receive services from DDD.

Parents should note also that CSOC has indicated that it can reassess a child’s eligibility if it appears he or she no longer meets the eligibility criteria outlined above.

Q: If I never applied for DDD services for my child, can I now apply to DCF?

A: Children under the age of 18 who were not found eligible for DDD services before 2013 will have their eligibility for services determined by CSOC. CSOC will determine what services are provided.

Teens and young adults between the ages of 18 and 21 who were not found eligible for DDD services before 2013, must apply to DDD.  DDD will determine eligibility, but CSOC determines the services to be provided until the child turns 21. DDD can provide transition services during this time.

Q: Does DCF require my child to be Medicaid eligible in order to receive services?

A: DCF requires individuals to apply for Medicaid/NJ Family Care and any other benefits. If found eligible the individual must maintain eligibility.  However, CSOC will provide services to individuals who are not eligible for Medicaid/NJ Family Care or other benefits.  Until the child turns 18, ineligibility for these programs will usually be the result of the parents’ income and assets.

Q: What if my child needs services immediately?

A: In an emergency situation, CSOC can provide services before the eligibility process is completed.

Q: What can I do if DCF determines my child is not eligible for services?

A: If a child is determined ineligible, an appeal can, and should be, filed.  The same is true for a denial of services.

During this time of transition, it is important for parents and guardians to understand their rights and continue to advocate for their child’s needs.  A determination of ineligibility or a denial of services by CSOC can be appealed. Parents may need to consult with an attorney if CSOC is denying their child functional services or has determined their child to be ineligible for services.  Timelines to file an appeal can be very short, so it will be important to act quickly.

Finally, advance planning is the key to long-term success.  If not already eligible, a DCF application should be submitted immediately.  In addition, for families of children born on or after January 1, 1997, it is imperative families immediately submit a DDD application when the child turns 18.

There are still a number of unresolved issues regarding DCF.  Watch for future articles about DCF and DDD.

The Division of Developmental Disabilities has fundamentally changed the ways in which individuals are found eligible for services through new rules for eligibility that went into effect on January 22, 2013. There are two big changes:

1. On January 1, 2013, the Division of Developmental Disabilities (DDD) ceased serving children under the age of 21. The Department of Children and Families (DCF) will serve children, but it remains unclear what services DCF will actually provide.
2. DDD is now requiring all individuals to be Medicaid eligible.

While this is an emerging issue and many of the details have yet to be worked out, here is what we know so far:

Q: Who is eligible for DDD and at what age?

A: Under its new eligibility rules, DDD will accept eligibility applications only for individuals with disabilities who are at least 18 years old. Those who were found eligible for DDD services before January 22, 2013 are “presumed eligible” to receive services from DDD when they reach 21 years old.

As part of the new rules, however, any individual born on or after January 1, 1997 must reapply for DDD services after the individual attains the age of 18. This is a potentially problem for those born on or after January 1, 1997 and who are on the Community Care Waiver waiting list (formerly the “priority” category of the residential waiting list). It is unknown what will happen to these individuals, and it may be necessary to enforce possible rights to remain on the waiting list as of the date originally assigned.

DDD contends children with developmental disabilities may seek “transitional planning services” from the Division starting at age 16. DDD defines that term as “information and training to prepare for the transition from school to adult life with a focus on employment.”

Q: What are the eligibility criteria?

A: In order to be eligible for services through DDD, an individual must have a developmental disability. The new rules define developmental disability as:

• a severe, chronic disability of an individual, which:
  • Is attributable to a mental or physical impairment or combination of mental or physical impairments;
  • Is manifest before age 22;
  • Is likely to continue indefinitely;
  • Results in substantial functional limitations in three or more of the following areas of major life activity:
    • Self-care
    • Receptive and expressive language
    • Learning
    • Mobility
    • Self-direction
    • Capacity for independent living
    • Economic self-sufficiency; and
  • Reflects the need for a combination and sequence of special interdisciplinary or generic care, treatment of other services, which are of lifelong or extended duration and are individually planned and coordinated.
  • Developmental disability includes, but is not limited to, severe disabilities attributable to intellectual disability, autism, cerebral palsy, epilepsy, spina bifida, and other neurological impairments where the above criteria are met.

Q: What are the new Medicaid eligibility requirements?

A: One of the most significant and potentially problematic changes to the rules and to the DDD service delivery system in general is that services will be provided only to individuals who are eligible for Medicaid.

In addition, the new rules require the individual, parent or legal guardian to apply for and maintain all current and future benefits for which the individual is eligible. These include, but are not limited to, Medicare, Medicaid, any other State or Federal benefits, and third party support pursuant to statute, rule, court order or contract.

Q: What happens if the person is not eligible for Medicaid?

A: If an individual is not eligible for Medicaid, or Medicaid eligibility is lost, an interruption or termination of services by DDD may result. This is particularly troublesome because, in some limited circumstances, individuals cannot obtain Medicaid eligibility. Now more than ever, families need to ensure the individual with a disability does not have excess assets or income. A properly written Special Needs Trust may be more vital than ever.

Q: Is it possible for an individual who is not eligible for Medicaid to receive DDD services?

A: A person with a developmental disability who is not eligible for Medicaid can receive DDD services for up to 30 days, if the services are necessary because of an emergency and the individual, parent or guardian, in the discretion of DDD, is cooperative.

Q: How do the new rules affect an individual currently receiving DDD services, but who is not Medicaid eligible or who loses Medicaid eligibility?

A: In either case, the individual can receive services for a period not to exceed 60 days from the date of ineligibility as long as the individual, parent or guardian, in the discretion of DDD, is cooperating and the Assistant Commissioner has given authorization. In some cases, there is a possibility of an additional 30 day extension.

If the individual becomes Medicaid eligible within the 60 day time period, then services will continue. If families find themselves in this situation, the problem will likely be due to earnings, or assets in the individual’s name. It may be necessary to create a Special Needs Trust to fix this problem. It is extremely important for families to act quickly, as court approval for the creation of trust is often required. Individuals can begin loosing DDD services as early as March 23, 2013 if action is not taken.

It is imperative that all individuals receiving services now, and those who will need DDD services in the future, apply for and are determined eligible for Medicaid. Advance planning is the key to success. All families should immediately confirm Medicaid status and work to ensure the individual is or will be Medicaid eligible.

During this time of transition, it is important for families to understand their rights and continue to advocate for the needs of their family member. A determination of ineligibility or denial of services by DDD can, and should be, appealed. However, timelines to file an appeal are very short. You may need to consult with one of our attorneys if DDD or Medicaid make a determination of ineligibility or fail to provide services.

The exemption amount for the New Jersey estate tax remains at $675,000.

With federal estate tax issues resolved for the foreseeable future, now is a good time to review your estate plan to ensure that it maximizes your ability to save estate taxes and make more available to your children after you are gone, especially for your child with a disability.

Other provisions of the Act include:

• Income taxes. The Act keeps the “Bush” tax rates intact for individuals with taxable income under $400,000 ($450,000 for married taxpayers, $425,000 for heads of household). Income above these levels would be taxed at a 39.6% rate.
• Alternative Minimum Tax (“AMT”) patch. The Act permanently patches the AMT.
• Capital gains and dividends. The Act raises the top rate for dividends and capital gains from 15% to 20% for taxpayers who are subject to the new 39.6% bracket.
• Deduction limitations. The Act limits the personal exemption and itemized deductions for taxpayers earning more than $300,000 per year.

We will update our website and Facebook page as more information becomes available about this important tax legislation.

The simple answer is ‘yes.’ But in the world of disability nothing is as simple as it seems. An individual may work, but he or she must understand how working affects SSI benefits.

Q: What is SSI?

A: SSI is a federal program that provides cash benefits to adults and children with disabilities who have limited income and resources.

Q: What effect does earned income have on SSI benefits?

A: The calculations of a monthly benefit amount are easier to understand in an example.

Let us assume that John works and earns $500 per month, and that John receives $698 per month from SSI. The first $20 John earns will have no effect on his SSI benefits. This is a general income exclusion that is applied to either earned or unearned income. It is important to note that unearned income (such as SSDI) will also affect SSI benefits.

The next $65 John earns will have no effect on his SSI benefits. This is the earned gross income exclusion. The Social Security Administration (“SSA”) deducts the general income exclusion and the earned income exclusion from John’s earnings from employment.

John’s remaining earnings of $415 are divided in half. The resulting amount of $207.50 is deducted from his SSI benefit amount of $698, so John will receive $490.50 in SSI benefit.

Combine John’s SSI benefit with his earnings, his total income a month would be $990.50. Therefore, there is an incentive to work when receiving SSI.

However, there is a point when John’s earned income would cause him to lose his SSI benefits. This would happen if for purposes of the SSA John is engaging in substantial gainful activity (“SGA”). In 2012, an individual engages in SGA if he earns $1010 per month.

Q: How do “Impairment Related Work Expenses” impact SGA?

A: Impairment Related Work Expenses (“IRWE”) refer to services required by an individual with a disability in order to maintain employment. The SSA calculates SGA by deducting the cost of IRWE from the total amount earned. To be deducted, the IRWEs must be paid by the individual with a disability, not by any government program or by a family member. For example, certain transportation costs, medical or non-medical devices, diagnostic procedures, attendant care services, routine drugs and medical services may be deducted. For example:

Let us say Mary is employed and earns $1,200 per month. If the full amount earned is considered, the SSA would determine that Mary is no longer disabled because she engages in SGA. However, in order for Mary to sustain her employment she requires the support of a job coach. The job coach costs $400 per month and Mary directly pays the job coach. The SSA will deduct the cost of the job coach from Mary’s earnings, determining that Mary earns $800. Therefore, Mary will still be deemed eligible for SSI. Of course, her benefit amount will be decreased as explained in the first example, but she will not completely lose her SSI benefits.

Q: What is the Student Earned Income Exclusion?

A: To be eligible for the Student Earned Income Exclusion (“SEIE”) the individual with a disability must be a student under the age of 22 who “regularly attends school” (e.g. takes at least 8 college credits). This exclusion allows the first $1,700 of the student’s earnings per month to be excluded for purposes of SSI, which means it will not be counted toward the calculation of the SSI benefit amount. The maximum yearly exclusion under SEIE is $6,840. SEIE is applied before the general income exclusion or the earned income exclusion described above.

Q: What is Plan to Achieve Self-Support?

A: Plan to Achieve Self-Support (“PASS”) is another government program to help disabled individuals return to work. PASS permits the individual with a disability to set aside earnings or resources to help pay for things or services related to a specific work goal. This money will not be counted towards monthly SSI benefit calculations as well as housing assistance eligibility and food stamps. Examples of qualified expenditures related to a specific work goal include vocational training, purchase of supplies to start a business, school expenses, and transportation.

These exclusions and programs allow individuals with disabilities to work and continue to receive SSI benefits. Therefore, individuals with disabilities should be mindful of the SSI eligibility criteria, but should not forego working because they fear losing their benefits.

Social Security laws are complicated and are subject to change. It is, therefore, always advisable to seek competent legal advice before simply accepting any change or loss of benefits.

Medicare and major medical policies cover nursing home care only on a short-term basis. Medicaid will pay for long-term care; however, eligibility for Medicaid is limited to people with limited assets. Therefore, most people will either pay for nursing home care themselves, divest themselves of assets in order to achieve eligibility for Medicaid before the need for nursing home care arises, or purchase long-term care insurance.

Ideally, a long-term care policy should have an unlimited duration, a large daily payment rate and a high inflation protection rider. The age of the applicant and the policy limits are two of the critical factors that determine the amount of the long-term care premium. For example, the more generous the benefits or the older the applicant is when applying, the higher the annual premium will be. Moreover, a potential applicant who waits too long to apply risks becoming uninsurable.

The cost of nursing home care continues to rise steadily each year. Instead of relying on long-term care insurance to pay the total cost of nursing home care, another option is to purchase a policy with fewer benefits that offsets only a portion of the total cost of care. This allows individuals to preserve their personal assets and, and at the same time, it increases the possibility that individuals will have assets to leave to their heirs. While the policy benefit limits would be lower, so would the policy premiums. There are also hybrid products available that combine life insurance with long-term care insurance. These types of policies sometimes require a larger up-front premium but they guarantee a payment to heirs if little or no long-term care is utilized.

As with all insurance, it is always wise to shop for long term care insurance through reputable agents and to compare the cost of the policies with several companies. It is also important to consider purchasing fewer benefits in order to reduce the premium payments.

When planning estates, particularly for clients age 50 and older, it is critical to weigh the advantages of long-term care insurance versus the impact of privately paying for such care.