Sheryl R. Frishman, Esq.
As a mother who has spent countless dollars on therapists, doctors, treatments, and care for my son with Autism, it is hard to imagine adding an attorney to that list. However, it is absolutely necessary to have an attorney as one of the “special professionals” on your special family’s team.
A qualified attorney can be of assistance and play an important role in helping you secure appropriate services for your school age child. Personally, I have been an attorney working exclusively with people and families with disabilities for over 17 years. Nevertheless, when it came to my own son, who requires extensive special education services from my school district, I realized first hand how very difficult and emotional it is to be put in the position, as a parent, to have to advocate, or ask for, the services your child requires to make meaningful progress. There is so much that we are required to learn as parents of children with special needs, and advocacy is among the countless things we must learn and do for our children. The laws and regulations surrounding what our children’s rights are in school are complex, difficult and are constantly changing. We want nothing more than to help our vulnerable children, by procuring the services they require to make meaningful progress. However, this can be an extremely emotional and difficult process and there is no shame in asking for help. While it is not an exhaustive list, below are some examples of how a qualified attorney can help you and your special family.
- A qualified attorney can assist you in navigating, the often complicated and confusing special education system, and also help you understand what services your child may or may not be entitled to from your school district.
- A qualified attorney can help you understand, and assist you in obtaining services, at the different transition points in the special education process. These include the transition from Early Intervention (EI) to the Committee on Pre School Special Education (CPSE), the transition from CPSE to the Committee on Special Education (CSE), and the most difficult transition, from school to post-school.
- A qualified attorney can help you understand, and also review, your child’s Individualized Education Program (IEP) or 504 Plan. The IEP is the most important document for your school aged child with special needs. The services received pursuant to the IEP, must be individualized in order to meet your child’s unique needs and help he or she make meaningful progress.
- A qualified attorney can attend an EI, CPSE or CSE meeting with you when you have been unsuccessful in advocating for your child’s needs and rights on your own.
- If you disagree with the determination of the Committee, a qualified attorney can challenge that determination on your behalf, by filing a Due Process complaint. It is extremely important to use an attorney at this point, because there are legal requirements that must be met and they cannot be waived if you are representing yourself. A qualified attorney will also discus alternatives to filing for Due Process, for example, mediation or filing a New York State complaint.
- If you have chosen to withdraw your child from the public school and place your child in a private school, and wish to seek reimbursement from your school district for the cost of that private placement, you will need a qualified attorney to assist you. It is extremely important to have a qualified attorney advise you as soon as you consider private placement for your child. There are so many antecedents that must occur in order to move forward with this process successfully. This particular type of hearing is very specialized and the legal standard and process must be clearly explained to you prior to moving forward.
- A qualified attorney should be consulted immediately if your child (whether or not they are receiving special services) has been suspended or has been subject to any discipline by the school district. Further, an immediate legal consultation is necessary if you suspect or know school district personnel have improperly restrained your child in anyway.
- If your child has been the target of bullying in school (whether or not they are receiving special services), and you have not been successful working with the school district to end the bullying, a qualified attorney should be contacted.
- If your child’s behaviors are interfering with his or her learning, or the district is claiming your child’s behaviors are affecting the learning of others, a qualified attorney should be contacted to assist you.
- If your child is being removed from a mainstream setting or being brought back into the district from an out of district placement, and you disagree with this, a qualified attorney should be contacted to assist you.
There are certain circumstances where a special education advocate, rather than an attorney, can assist with the areas I outlined above (other than in numbers 5 through 8 above where I do not recommend an independent advocate be used exclusively). While I know many, and have worked alongside many absolutely wonderful advocates that work independently, there are currently no educational requirements for an individual to become an advocate in New York State. Since there are also no regulations, licensing, or guidelines for advocates, you should use your personal standards of competence in choosing one. As a parent, when hiring an advocate, who does not work with or is not supervised by a qualified attorney, you need to feel comfortable with the experience of that advocate and his or her knowledge with your particular issue and your district. There are seminars, workshops and training programs offered for people who wish to become special education advocates that you may want to ask the advocate if they have attended, and/or you can also ask the advocate for parent recommendations from your particular district. Of course, there is a wonderful wealth of information on the Special Moms of Westchester Facebook Group where you can seek guidance about a particular advocates from other parents.
Planning For the Future
When planning for the future of your loved one with special needs, it is necessary to work with an attorney who specializes particularly in this area. Personally, the thought of my child with special needs being on this earth without me is absolutely terrifying. It is something we all fear. However, there will most likely come a time when you are no longer able to care for your child, and if a plan is not put in place you are only hurting the child you want to help more than anything else. Based on your unique situation, a qualified special needs planning attorney will recommend certain tools that can be put in place to protect your child. These may include, a Letter of Intent, a Last Will and Testament, a Supplemental Needs Trust, an ABLE account, Advanced Directives, etc. An attorney that specializes in this area will also refer you to financial advisors, insurance advisors, and other professionals, that specialize in working with families with special needs. This is not something to bargain hunt for or to use your family friend who does general trusts and estates work. If this planning is done incorrectly, it could be truly awful for your loved one with special needs. Too often, I have seen these documents drafted improperly, making it extremely difficult and expensive for your child and the caregivers you leave behind. It is never too early to plan and it is, in my opinion, the most important thing you should do for your child. By doing the necessary planning with a qualified attorney, you will ensure that your child has the life and lifestyle they deserve when you are no longer able to provide the necessary care and support yourself.
Your child is emancipated at the age of 18. If a parent or other person wishes to or needs to continue to make decisions for a person with special needs past the age of 18, a court proceeding is necessary to seek guardianship. Also, contrary to popular belief, a guardian cannot be appointed in a Last Will and Testament, as the language in the Will is only a recommendation. While guardianship can be done without the assistance of an attorney, there are certain circumstances where an attorney, who specializes in this area, should be consulted. For example, if there are any family difficulties which may lead to a contested guardianship, if there is a question about whether the child meets the standard for guardianship and alternatives to guardianship need to be looked at, or if it is just too much for you to take on yourself, a qualified attorney may be necessary. The guardianship documents need to be filled out thoroughly and correctly. If you begin the process, and find that it is just too onerous for you to on your own, an attorney specializing in this area should be consulted.
Assistance with Public Benefits, OPWDD, and Adult Services
Many of our children need to access services or benefits that are administered through governmental agencies. For example many of our children need to seek eligibility with the New York State Office of People with Developmental Disabilities (OPWDD). This can be a complicated process and you may want to consult with an attorney to make sure you have the necessary evaluations, medical information, and other required paperwork in place. It may also be necessary to consult with a qualified attorney if your application has been denied and it is required that you go to a second or third step review to obtain eligibility.
Additionally, many of our children will require public benefits, for example SSI and/or Medicaid, to receive services in the adult world. These benefits are not only based on a disability determination, but are also based on strict asset and income requirements. If you have any questions or are worried that your child will not qualify for these necessary benefits, a qualified attorney should be consulted. If your application for public benefits is denied and you need to attend an administrative hearing to challenge the denial in order to obtain benefits, a qualified attorney should be consulted.
The above services are the most common reasons special families seek out an attorney as a “special professional.” However, this is not at all an exhaustive list of services an attorney who specializes in this area should be able to provide for your special family. For example, there is specialized tax planning, specialized grandparent planning, specialized financial planning, legal issues specifically for families that have a loved one with mental illness, private insurance appeals, child or adult protective services investigations, assistance if a loved one with special needs inherits or receives monies as a result of a personal injury lawsuit, and/or assistance with forming not-for-profit corporations or other corporations to provide future services for a loved one with special needs, that the attorney you select should be able to provide if the need should arise.
Being a mother of a child with special needs, I understand that the thought of engaging an attorney as a “special professional” to assist your special family may not be appealing. I know this to be true, because it takes so much, and so many professionals, to get through the day to day of having a child with special needs and adding an attorney to your team may not seem like a priority. Nevertheless, as an attorney who has specialized in this area for many years, I have seen many difficult situations arise because a family did not engage an attorney to assist them or used an attorney who did not specialize in special needs and disability law.
It is also understandable that the expense of hiring an attorney can be of concern. If you qualify, there are free legal services available that specialize specifically in the needs of special families. However, if you do not qualify for free legal services or cannot find a qualified legal services attorney, I can assure you that the cost of an attorney who is qualified and will perform the necessary legal service correctly, will be enormously less expensive than the monetary and emotional cost to you, your loved one with special needs, and your family if things are left undone or are done incorrectly.
**Please note that nothing in this article should be construed as legal advice. Please consult with an attorney before relying on any information contained in this article.