Blog

Veterans’ Disability Case Howell v. Howell

U.S. Supreme Court Veterans’ Disability Case
Howell v. Howell

The Court’s Opinion published today stems from an Arizona spousal maintenance case involving a disabled Air Force veteran.  In the divorce, the Howells’s Decree awarded fifty percent of Mr. Howell’s future retirement pay to Mrs. Howell as community property. Subsequently, Mr. Howell waived a portion of his military retirement pay to receive disability benefits.  The waiver reduced Mrs. Howell’s support by $125.00 per month.
Based on a Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. Section 1408, Congress allows states to treat veterans’ “disposable retired pay” as community property, however, excludes pay that is a result of a waiver. In contrast, the Arizona courts found the divorce decree gave Mrs. Howell a vested interest in the retirement pay and ordered that the designated share be paid, without regard for the disability, arguing that due to the waiver after the division of retirement pay, federal law did not preempt the family court’s reimbursement order. The U.S. Supreme Court reversed the lower court’s decision and remanded the case.

Mr. Howell will not have to indemnify his former wife for the amount of support she lost due to his waiver of a portion of his retirement pay that enables him to receive disability benefits.

For the entire text of the Opinion, click here.

U.S. House Bill for Students with Visual and Hearing Challenges

Last month the 115th Congress was introduced to H. R 1120 called Alice Cogswell and Anne Sullivan Macy Act by  Pennsylvania Representative Matthew Cartwright.

Representative Cartwright previously introduced a similar bill in 2015; however, the 2015 bill was not enacted.

H.R.. 1120 focuses on the need to identify children who are deaf-blind, improve early intervention for affected infants and toddlers, and improve services for such children and their families. The proposed legislation would seek to serve children with a disability who is deaf or hard of hearing, with speech.  This eligibility language could be more inclusive than states’ definitions of disability.

Click here for the text of H.R. 1120.

Houston Events in April 2017

There are so many events in Autism Awareness Month!

Here’s info about some Houston fun events I found online:

April 1 – Sickness Inc Custom Ride for Autism  https://www.eventbrite.com/e/sickness-inc-customs-ride-for-autism-tickets-32145382705?aff=es2

April 1 and 2 10:30 am to 6:30 PM McDonald’s Houston Children’s Fest https://www.facebook.com/events/1190070521088646/1247989368630094/?acontext=%7B%22ref%22%3A%2229%22%2C%22ref_notif_type%22%3A%22admin_plan_mall_activity%22%2C%22action_history%22%3A%22null%22%7D&notif_t=admin_plan_mall_activity&notif_id=1490907158514971

April 3 10 AM to 3 PM Sensory Friendly Say at Children’s Museum of Houston

April 4 PM to 8 PM – 4th Annual Profit Share for Autism – LIUB with Stella & Dot! Free  https://www.eventbrite.com/e/4th-annual-profit-share-for-autism-liub-with-stella-dot-tickets-32853069415?aff=es2

April 4 6:30 PM to 8:30 PM – The Benjamin J. Geigerman Lecture FREE – Pipelines to Employment for Young Adults with Autism Spectrum Disorder”   https://www.eventbrite.com/e/2017-benjamin-j-geigerman-lecture-registration-32364571304?aff=es2

April 7 6 – 7 PM – Autism Parent Workshop https://www.facebook.com/events/355461788160139/?acontext=%7B%22ref%22%3A%223%22%2C%22ref_newsfeed_story_type%22%3A%22regular%22%2C%22feed_story_type%22%3A%22263%22%2C%22action_history%22%3A%22null%22%7D&sharer_id=721689474595194

April 8 8 AM – 5th Annual Bridging the Gap Between Home and School Conference & Resource Fair – FREE  https://www.eventbrite.com/e/5th-annual-bridging-the-gap-between-home-and-school-conference-resource-fair-tickets-29076217750?aff=es2

April 8 – Market Days Autism Awareness https://www.eventbrite.com/e/market-days-april-8-autism-awareness-tickets-30657283761?aff=es2

April 22 12 PM  – Harris Center’s 15th Annual Picnic in the Park (Autism and IDD Awareness Fair) – George Bush Park https://www.facebook.com/TheHarrisCenterIDDPAC/

April 22 4:30 PM – Strokes for HOPE! Jennifer Ekeoba’s Autism Awareness Birthday Paint Party $40https://www.eventbrite.com/e/strokes-for-hope-jennifer-ekeobas-autism-awareness-birthday-paint-party-tickets-32796884364?aff=es2

April 22 10 AM to 4 PM – Autism Awareness Fest – Embrace the Spectrum – FREE https://www.eventbrite.com/e/embrace-the-spectrum-tickets-32523447507?aff=es2 and updated info at https://www.facebook.com/events/1665708833729417/?notif_t=plan_edited&notif_id=1490911645486410

April 29 9 AM – 1 PM From Stress to Strength $10 http://www.avondalehouse.org/pt-event/from-stress-to-strength/

April 29 1 PM – WHO Wants to Race 5K & 10K for Autism Awareness – Houston   https://www.eventbrite.com/e/who-wants-to-race-5k-10k-for-autism-awareness-houston-registration-32017139125?aff=es2

April 30 – Autism Awareness Brunch  https://www.eventbrite.com/e/autism-awareness-brunch-tickets-33161065640?aff=es2

Feel free to add any events I missed!

Leona

Merely More than De Minimis is NOT the Standard – Endrew F. – U.S. Supreme Court Special Education Case

This week, many families with children with special needs celebrated the United States Supreme Court ruling in Endrew F. v. Douglas County School District.  The Individuals with Disabilities Act (“IDEA”) protects children with disabilities through a mandate that each eligible student receive a Free Appropriate Public Education (“FAPE”), by means of a uniquely tailored individualized education program (“IEP”).  In this case, the Court found that student Endrew F.  failed to receive an appropriate public education.  Special Education and related services are to be provided so that the student may advance appropriately toward attaining the annual goals from the IEP, and when possible, be involved in and make progress in the general education curriculum.

The Court noted in its opinion that at age two, Endrew F. was diagnosed with autism, a neurodevelopmental disorder generally marked by impaired social and communication skills, “engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.”  With this diagnosis, Endrew F. was eligible to receive special education services. Endrew F.’s parents were dissatisfied with the public school’s inability to provide and IEP different from any of the IEPs for the past few years. With no satisfactory results from the school district, Endrew F.’s parents withdrew him from school and enrolled Endrew in a private school that specializes in educating children with autism, where Endrew excelled.

Endrew F.’s parents sued the school district for failure to provide an appropriate public education for Endrew F.  The Supreme Court noted that a IEP is unique for the circumstances of the child for whom it was created.  The standard for the student’s educational program must be appropriately ambitious in light of his circumstances, not merely more than de minimis progress from year to year.

Parents and advocates, when you are in attendance at an Admission, Review, and Dismissal meeting (“ARD Meeting”), argue with confidence so that your child to receive an education appropriately ambitious in light of your child’s circumstances.

Estate Planning Seminar March 11th

Good morning! We are getting ready for our joint presentation with Blake Douglas.

Estate Planning – whether you are a college student or grandparent, there are legal documents to assist you and your loved ones in stressful times of need.

Thank you Barbara Pardue for the fabulous Facebook event design.

No automatic alt text available.

https://www.facebook.com/events/794520557363555/

 

See you at the office building 5600 NW Central Drive – large conference room on the 1st floor at 2 pm.

 

Purposeful Parenting – It Works in My House

In my spare time, I do occasionally read through Facebook posts that show up on my timeline. A friend (from years past) posted an article about the negative impact of parents using sticker charts to reward their children. My comment was brief.

With whatever you as a parent may use in a new behavior strategy, you must have a plan in place to remove it.”

My mistake was that I was commenting on a post of a mother of typical children.  Her response was

“Hmmm, that’s an interesting term, ‘behavior strategy.’ I guess my strategy is just to treat to kids with respect and love.”

Now, I know this person.  I am not going to infer that by her comment she meant that I do not treat my kid with respect and love.  My parenting is purposeful or else my child with Autism can run off, get hurt, or worse.  One example of a parenting strategy I have used in the past is rewarding my son with stickers.

Years ago, my son rejected food due to tactile issues.

This was especially difficult for me as I come from a family who owned Greek restaurants.

Acropolis

 

 

 

 

 

 

 

Food was quite important in my childhood. As a new mother, having a child who would not eat anything other than watered-down rice cereal was devastating and caused me much fear and anxiety.  The main fear was that his overall health could be affected.

An Autism consultant offered a solution – a reward system with a visible chart to indicate when my son ate a new food item.  The sticker charts were a success in encouraging my son to eat one new food item a week. This strategy took months; however, it worked for us. Currently we don’t use sticker charts for introducing foods and thankfully my son will eat most foods.

In my house, there are strategies and planning sessions to set and accomplish goals for my son.  No apologies for my version of purposeful parenting.

Backyard fun

Estate Planning – Protecting the Future Interests of Those You Love

Planning for the future of your loved ones in the event of your death is generally a difficult topic for many. Unfortunately, those of us who have family members with disabilities cannot afford to ignore estate planning. Many hours of hard work by parents and caregivers go into the qualification process for government benefits for our disabled children and relatives. Twenty-page forms to fill out and hour-long calls with multiple agencies are just a couple of examples of what parents endure to obtain essential benefits for their children. Rules for eligibility for State Waiver programs, SSI and Medicaid are confusing.

What parents, family members, and close friends do not want to see happen is the disqualification of eligibility of benefits. To avoid possible disqualification of benefits, I have seen grandparents attempt to do the right thing and disinherit certain grandchildren, out of love and out of a misguided attempt to protect their loved ones with disabilities from losing benefits. The law provides a better way to protect your loved one’s eligibility for benefits through Special Needs Trusts (“SNT”).

Special Needs Trusts can offer protection of assets and income. Special Needs Trusts allow friends and families to enhance the quality of life of a special needs beneficiary.

“Income” for most public benefits agencies is defined as:

(a) actual cash distributions to the individual, and
(b) distributions that could be converted to food and shelter, and
(c) in-kind support and maintenance.

The more practical trust that is utilized is a 3rd party Special Needs Trust. Parents and grandparents who leave an inheritance to a child with a disability will

(a) create a 3rd Party Special Needs Trust,
(b) obtain a Taxpayer ID Number from the IRs, and
(c) draft a Last Will and Testament naming the trustee of the SNT as the beneficiary.

If you do not have a Will, Texas Intestate Succession law could distribute your estate directly to your child, thus creating another scenario where government benefits could terminate.

Another “funding” source for a Special Needs Trust – If you or someone you know is anticipating the eventual relocation to a nursing home, applicants should review eligibility laws of the Texas Medicaid Program. The state has a “look back” period of 5 years to review transactions that may have been made to spend down an estate to reach eligibility for Medicaid. Many transfers of income and assets can subject the Medicaid beneficiary or applicant to a transfer penalty. There are certain transfers of assets that are not subject to penalty such as contributions to a Special Needs Trusts for a person under the age of 65 with a permanent and total disability. Another transfer example is payment to an attorney for estate planning.

Contact The Filis Law Firm for more information on Estate Planning that will be most suitable for you and your family.

Special Education in 2017

The U.S. Supreme Court heard oral arguments in the Endrew F. v. Douglas County School District on January 11, 2017 (official transcript). The issue before the court is “What is the level of educational benefit that school districts must confer on children with disabilities to provide then with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act.”

Individuals with Disabilities Education Act (“IDEA”) passed in 1975, subsequently reauthorized and amended twice in 1997 and 2004, as the federal education law to provide a free appropriate public education (“FAPE”) to students who receive special education. In 1982, the U.S. Supreme Court interpreted the FAPE requirement in IDEA to mean schools must provide “some educational benefit” to their students with disabilities. Since then, IDEA has been amended to include the No Child Left Behind Act (“NCLB”). Further, the Americans with Disabilities Act (“ADA”) passed in 1990. The evolution of protections for our population of individuals with disabilities continues to address the needs of a growing segment of our population.

An attorney for the Petitioner, Jeff Fisher, argued to the Court that IDEA requires “for the school to provide instruction and related services to the child that are reasonably calculated to provide substantially equal educational opportunities.” Irv Gornstein for the Department of Education of the United States, argues in support of the Petitioner for a formulation that is “reasonably calculated to make progress that is appropriate in light of the child’s circumstances.”

In the event the Supreme Court rules in favor of Endrew F., there will be a substantive standard in states to provide a higher, meaningful education to children with special needs.

Later this month, the executive branch of the government will be headed by President-elect Donald Trump. Trump has picked Senator Jeff Sessions to serve as his Attorney General. In order to help predict future actions, we should visit the past. In May 2000, on the senate floor, Jeff Sessions stated “We have created a complex system of federal regulations and laws that have created lawsuit after lawsuit, special treatment for certain children, and that are a big factor in accelerating the decline in civility and discipline in classrooms all over America.” Sessions’ full statement is available on his website.

For more information on the Endrew F. case, click here for an Understood video interview Jack Robinson, an attorney for the parents of Endrew F.

Repeal of the Affordable Care Act

Many families with children with special needs received benefits in health care coverage due to several provisions of the Affordable Care Act (“ACA”).

Such provisions include:

  • Allowing adult children, up to the age of twenty-six, to be included in their parents’ health insurance policies;
  • Prohibiting health insurance companies from imposing a waiting period for coverage of a pre-existing condition;
  • Having a cap on out-of-pocket medical costs each year;
  • Prohibiting employer plans from including lifetime limits to coverage; and
  • Expanding Medicaid eligibility based on income to 138 percent of the Federal Poverty Level in states that chose to implement the expansion. Applicants who qualify for Medicaid benefits based on this expansion could start receiving benefits while waiting for eligibility based on a disability.

What are the changes taking place now? The Congressional Budget Act of 1974 allows for the expedited consideration of mandatory spending legislation. Recently, the U. S. Senate voted to approve a budget blueprint, by way of a reconciliation bill, to allow the removal of significant components of the ACA, without the interference of a filibuster. The U. S. House of Representative voted to approve a budget blueprint as well. A repeal to reform Medicaid is supported by many in congress.

To date a comprehensive reform bill has not been provided for review. President-elect Donald Trump has expressed approval for a couple of aspects of the ACA, such as the inability of insurer to deny coverage for people with pre-existing health conditions and allowing children to stay on their parents’ insurance policies longer. President-elect Trump’s ultimate goal is to repeal the ACA and replace it with a plan essentially simultaneously. Trump proposes his plan will provide “insurance for everybody” and that pharmaceutical companies are “politically protected but not anymore.”

Unfortunately, one cannot predict whether the two ACA mandates approved by Trump will ultimately be a part of TrumpCare. House Republicans have a Better Way plan that promises to protect patients with pre-existing conditions and allow dependents up to age twenty-six to stay on their parents’ health insurance plans.

Parents of children with special needs have valid concerns if the ACA is repealed. Will their children, especially those over eighteen years old, with pre-existing medical conditions have private health insurance? If not, will Medicaid be an option and if so, how long is the wait for eligibility for benefits?