Legal Considerations for Parents of Children with Disabilities
As a parent, your number-one goal is to help your child to succeed. Understanding your children’s rights—and your rights as their parent—is an important step in achieving that success. Here’s a brief overview of those rights as they apply to education and financial planning.
Congress has adopted several Acts, including the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Individuals with Disabilities Education Act, to safeguard the civil rights of students with disabilities.
The Acts require schools to identify, evaluate, and accommodate the educational needs of students with disabilities. In addition to setting forth the rights afforded to students with disabilities, the Acts also outline parents’ rights.
These rights include:
• Access to inspect all of your child’s records;
• Receiving notice of all of your child’s evaluations and placements;
• Having a hearing before an impartial third party, if necessary, to resolve disagreements regarding your child’s evaluation or accommodations; and
• Having all grievances investigated by a local district coordinator and/or a U.S. Department of Education representative.
If you have a child with disabilities, it is important that you are familiar with these Acts and the rights they afford you and your child. South Dakota Parent Connection is a nonprofit organization that provides resources and training to parents and professionals who care for and work with students with disabilities. Their website—sdparent.org—contains a wealth of information, including online training and resource guides.
If your child with disabilities currently receives means-tested state and/or federal benefits or will likely receive those benefits in the coming years, planning for his or her financial future can be challenging. You want to make sure that your child has a place to live and enough money to provide a comfortable life, but if you have more than $2,000 in the designated bank account, your child can end up losing government benefits.
One of the ways you can protect your child is by setting up a Supplemental Needs Trust, sometimes called a Special Needs Trust. Based on a provision of the U.S. Code, by putting money in such a Trust you can ensure that your child has money available without putting government benefits at risk. For these trusts to work property, they must be carefully drafted and carefully administered. You should consult with an attorney if you are interested in learning more about Supplemental Needs Trusts.
For a long time, creating a Supplemental Needs Trust was the only way that individuals with disabilities could save money. However,
just last year, in July 2016, South Dakota joined a number of other states in adopting the Achieving a Better Life Experience (ABLE) Act. The ABLE Act allows qualified individuals with disabilities to contribute up to $14,000 a year to an ABLE account. Funds held in the ABLE account are not included as the individual’s assets for the purpose of qualifying for means-tested benefits such as Medicaid
and Social Security. Individuals can save up to $100,000 in an ABLE account without affecting their benefit eligibility. The money
in the account can be used for any “qualified disability expense.” A qualified disability expense is any expense that is a result of living with a disability. Additionally, distributions from the ABLE account, including income earned by the account, are tax free if used for qualified disability expenses. For most people, the use of an ABLE account will not obviate the need for a Supplemental Needs Trust, but it can provide a good additional financial planning option.
By Jennifer Tomac, Attorney at Law
Tomac &Tomac “Strong Families. Strong Communities.”