The Family Support Center of New Jersey

presents

The Law and Disability: A Free Webinar Series

Featuring the Attorneys of Hinkle, Fingles & Prior

Since 1974, the attorneys at Hinkle, Fingles & Prior have represented the interests of people with disabilities and their families. Many of the firm’s attorneys have a personal connection to the world of disabilities – whether through a sibling or a child – and understand first hand the unique issues faced by families.

The following groups are eligible for Medicare:

1. people who are at least 65 and eligible for Social Security;
2. those receiving Social Security benefits because of a disability;
3. people collecting Social Security Disability benefits; and
4. permanently disabled adult children of people collecting Social Security benefits.

With some co-pays, Medicare covers hospital stays, limited stays in a skilled nursing facility, a hospice, or post-hospital home health services. If a person decides to pay premiums, Medicare may also cover physician’s services.

Medicaid is a joint federal and state program (federally and state funded and state administered) that is based solely on need, regardless of age. If a person qualifies, this program will cover, among other things, long-term nursing home care and in some cases a residential placement for a permanently disabled individual. Medicare does not cover long-term care.

To qualify, the person must be essentially poor. Resources owned or available to the Medicaid applicant or his/her spouse will be considered to determine eligibility. The person can transfer assets to others to make him/herself eligible for Medicaid, but such transfers must be done properly and, more importantly, timely.

If a transfer of assets occurs within a specified period of time prior to the person’s Medicaid application (called a ‘look-back period’), the transferred resources will be considered as available for Medicaid purposes and could make that person ineligible for the program. In 2005, Congress passed a law that gradually changed the federal look-back period from 36 to 60 months and imposed penalty (or ineligibility) periods for transfers that occurred within five years of the application for the program.

This is the case in Pennsylvania, but New Jersey has not caught up yet. Under current New Jersey regulations, the look-back period is still 36 months, except for a 60-month look-back in case of transfers to a trust. In April 2011, however, the New Jersey Division of Medical Assistance and Health Services proposed to change the look-back period in New Jersey from 36 to 60 months for all transfers. That means that the assets transferred within five years of the Medicaid application, while not at the moment, will probably soon be considered as available to determine the person’s eligibility for the program.

To download the Department’s memo as a PDF, click here.

It is often wrongly assumed that students with good grades cannot be eligible for special education. In fact, many students have “invisible disabilities” that manifest in ways that are not related to grades at all, but still impact their ability to make meaningful progress socially, emotionally, developmentally and functionally. For example, some students with Asperger’s syndrome may earn high grades, but have difficulty participating in group activities due to poor social and communication skills. Students with emotional or behavioral disabilities, such as depression or bipolar disorder may get good grades, but struggle with life skills, self-regulation, organizational skills or coping skills. Others may have difficulty sustaining attention for extended periods of time, have school refusal issues, and/or disruptive or oppositional behaviors.

If a student is unable to learn these non-academic skills in the general education program, the student may be eligible for special education and related services under the Individuals with Disabilities Education Act (“IDEA”).

If a student is suspected of having a disability, a teacher or parent can request that he or she be referred to the Child Study Team (CST) to be evaluated for special education services. Once the parent provides consent, the CST has 60 days to complete the evaluations and must hold an eligibility conference within 30 days thereafter. A student who is deemed eligible for special education and related services is entitled to an individualized education plan (IEP) that provides specially-designed instruction, including modifications and accommodations, and related services, such as counseling and social skills instruction, designed to address the student’s unique needs and enable him or her to make meaningful progress in the curriculum.

It is important to note that student with “invisible disabilities” and disabilities which do not affect grades are eligible for the same range of placement options – including inclusive settings, private special education schools and residential placement – as all other students with disabilities. The placement is determined by a team, which includes the parents and the student if he or she is age 16 or over.

If there is a dispute about the eligibility determination or whether the IEP, including placement, is appropriate, special education laws provide parents with due process procedures. If parents are successful, they may be entitled to reimbursement of attorney’s fees.

Edit/Update: The NJ Department of Education’s December 2010 clarification memo to schools describes this requirement. Click here for our post on it and a link to the memo.

• 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.

• Has there been a change in my health or my spouse’s health?
• Has there been a change in value of more than 20% in my estate?
• Have any children or grandchildren been born or adopted?
• Has a child or grandchild become disabled or incapacitated?
• Have there been any marriages, divorces or deaths?
• Have there been any changes or additions to life insurance policies or business interests?
• Would I like to make or change specific bequests or charitable gifts?

While any estate plan should be reviewed at least every five years, if you answer “yes” to any of these questions NOW is the right time to review your estate plan:

You should also reexamine your choice for executor, guardian and trustee at least every five years.

With Election Day approaching, it is important to consider the voting rights of people with disabilities. All citizens, regardless of their condition, who are over the age of eighteen and properly registered, have the right to vote. The mere fact a person has a disability is not an automatic bar to voting. In New Jersey, there are two leading cases involving the rights of individuals with disabilities to vote. Both cases were handled by attorneys at our firm.

A 1975 case, Carroll v. Cobb, involves residents of a State-operated institution for people with developmental disabilities, who attempted to register to vote but were turned away by a municipal clerk because they lived in an institution. The court ruled that their residence in an institution did not preclude them from the right to register to vote, so long as they can answer the few basic questions asked of any other citizen on a voter registration form such as name, address, age and so forth.

In 2000, election officials refused to count absentee ballots submitted by voters hospitalized in a state-operated psychiatric hospital based on the assumption that they lacked the capacity to vote (In the Matter of Absentee Ballots Cast by Residents of Trenton Psychiatric Hospital). The court confirmed that voting is a “fundamental right” guaranteed by the United States Constitution, and ruled that anyone seeking to challenge an individual’s right to vote has the burden of proving the specific person in question lacks the capacity to vote. As a result of these two cases, individuals with disabilities cannot be deprived of their right to vote by clerks, election officials, poll workers, or any other official involved in the election process.

Finally, in November 2007, the New Jersey Constitution was amended to further clarify this right, stating that only a person who has been determined by a court of law to “lack the capacity to understand the act of voting” can be deprived of the right to vote. Therefore, only a judge can deny an individual the right to vote. However, the appointment of a guardian for an individual with disabilities does not automatically prevent the individual from voting unless the judge has specifically addressed and clearly stated that the individual lacks capacity to vote.

As Election Day approaches it is important for self-advocates, families, and other caregivers to understand these rights so that people with disabilities can fully and freely exercise their right to vote.

A Special Needs Trust (SNT) is a critical part of an estate plan for families of an individual with a disability. If created properly, a SNT will preserve eligibility for various government programs for individuals with disabilities.

A SNT will operate for the life of the disabled beneficiary. In some cases, this can mean 50 years or more. Usually, a SNT is funded after the death or incapacity of the parents. Many of our clients have asked whether there is a way to ensure that the SNT will be used effectively. The following concerns have been specifically raised:

• Can you be sure that the trustees will perform their job properly?
• Will they invest trust funds the right way?
• Will they stay informed about the needs of the person with a disability and spend trust funds accordingly?
• Or, will they become distracted and not follow through on their responsibilities?

Appointing a corporate trustee, like a bank, may not solve these problems because it may fail to put the beneficiary’s needs ahead of corporate interests and be reluctant to spend trust funds for the benefit of the disabled individual.

Appointing a Trust Protector can help to alleviate these concerns. A Trust Protector is not a trustee, but rather a person or corporation with authority to review the trustee’s performance. Hinkle, Fingles & Prior has been serving as Trust Protector to many clients for the past several years.

Once the trust is funded, the Trust Protector will do the following:

• Meet at agreed-upon intervals of time (e.g., every two years) with the disabled beneficiary to observe the conditions under which he or she is living and to determine if his or her needs are being met;
• Review the administration of the trust to determine whether it is consistent with the disabled person’s best interest and governing laws;
• Review how the funds are invested and spent to determine whether the trustee is in compliance with the law;
• Seek the removal of any trustee by a court, if there is cause to do so, and arrange for the appointment of a suitable successor trustee; and
• Help protect the best interest of the disabled beneficiary and the trust.

For more information on our Trust Protector services, contact us today.