How To Use Funds From a Special Needs Trust

Special Needs Trusts are in place to protect the benefits of an adult or child with special needs and are exempt from Medicaid and Supplemental Security Income (SSI). A properly drafted special needs trust gives (you) the trustee, or someone you appoint, the sole discretion to use the funds for the benefit of your family member. A question I get asked often is what can I use the funds for, and are there any limitations?

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Can a Student Get Suspended for a Snapchat Post?

Social media is something I did not have to worry about as a kid, but it’s a very different story today. Every silly, embarrassing or inappropriate thing that a kid posts on social media can be instantly shared with hundreds, sometimes thousands or millions, with the tap of a finger. It immediately becomes part of their permanent record that could come back to haunt them when they’re looking to get a job, get accepted into college, and it can get them into trouble at school.

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Advocating for your Child in the School System

Special Education Advocate Mary Jo O’Neill wrote a feature article in the April issue of Autism Advocate Parenting Magazine: Advocating for your Child in the School System, where she provides advice on how to create an effective Individualized Education Program (IEP), how to form positive working relationships with your child’s educators and how to advocate for a successful school year for your child.  “You know your children best.  You know their strengths, their weaknesses and their capabilities. Although the school system can be difficult to navigate, it’s imperative for parents to advocate for their children, because they deserve a program that can give them the opportunity to thrive in education.”

Link to the full article: Advocating for your child in the School System 


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Preparing for College for a Student with a Disability

Graduation season is nearly upon us as high school seniors across the state are making plans for their next adventure. If you have a disability and choose to go on to college, there are additional steps required, both in choosing the right university and in seeing that your needs are met.

I’m talking to you, the student, not your parent. You’re likely 18 now and a legal adult, so it’s your turn to take the lead and pave the way to the future you’ve dreamed of. The college will be communicating directly with you, not your parents, from now on. If you want your parents involved, you’ll need to forward them all the information along the way. That may be a big change for you because, up until now, your parents had the power to make decisions about your education and the school had a legal obligation to see that your needs were met (follow your IEP or 504, ensure that you made progress, etc.) College is different – you must ask for what you need, and provide proof, before they’re required to provide it.

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Parent-Teacher Conferences: GO!

Many of you are probably getting notices about parent-teacher conferences approaching.  We know it’s yet another thing to add to your already busy schedule, but we highly encourage you to participate! Even if the parent-teacher conference is a virtual planform it still can be productive.

Conferences are your opportunity to gather data and feedback in between progress reports, which typically come out every nine weeks. Nine weeks is a long stretch if things aren’t going well.  You’ll want to discover problems sooner rather than later so that changes can be made.  COVID has made school more difficult for sure, but the school is still obligated, under IDEA law, to meet your child’s needs and make sure that he or she is making adequate progress in light of his or her unique circumstances.  Keep your eye on your child’s progress!

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Good News for Families: Ohio Department of Medicaid Freezing Level of Care Waiver Disenrollments for Six Months

The Ohio Department of Medicaid has announced that, for six months, it will freeze disenrollments from three Ohio Medicaid Waiver programs regarding people it alleges no longer meet the “level of care” required to participate in the program. Why is this important?

In Ohio, Medicaid Waiver programs allow people with serious care needs to receive care outside of an institution. For instance, a person can stay in their home instead of a group home or nursing facility. This allows people to have her needs met in the community, usually at a cost savings to the state.

The three waiver programs with the freeze in disenrollments are: 1) the Ohio Home Care Waiver, 2) the Passport Waiver, and 3) the Assisted Living Waiver. The Ohio Home Care Waivers serves individuals with physical disabilities and unstable medical conditions who are under the age of 60.1 The Passport serves people 60 and older in a community setting such as their home or a loved one’s home.2 The Assisted Living Waiver provides funding to pay for an individual age 21 or over to live in an assisted living facility.3

Many families over the past year have received shocking news that a loved one who receives care in their home or in another setting, like an apartment, is being disenrolled from the Medicaid Waiver program.   Each year, to remain in the Waiver program, an individual has a new assessment. This year, across the state, families have received notices saying that their loved

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The ABLE Act: Current Developments

You have probably heard of the Achieving a Better Life Experience (ABLE) Act, enacted in December 2014. In the past year alone, plenty of developments have taken place to ensure successful implementation of the Act in Ohio. In writing this article, I want to explain just how extraordinary the ABLE Act is to people with special needs and focus on the current developments in implementation.

ABLE accounts are financial accounts that can be established by or for a person with special needs. The person must have a disability as determined by the Social Security Administration or some equivalent disability determination. The disability must have occurred before the person reaches age 26.

The money in ABLE accounts does not count against the person’s eligibility for Supplemental Security Income (SSI), Medicaid, Supplemental Nutrition Assistance Program (SNAP or “food stamps,”) Section 8 housing, and other means tested public assistance programs. ABLE accounts can be used to pay for “qualified disability expenses” and the expenditures from the accounts will not impact benefit eligibility.

A person can have only one ABLE account. Annual contributions to an ABLE account are limited to $14,000 (in 2015). If the able account balance exceeds $100,000, the person’s SSI benefits are suspended until the account goes below $100,000. No other benefits are suspended. The maximum amount that can be held in and able account is approximately $414,000.

Any money left in an ABLE account at the death of the owner of the account must be used to pay back the

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What is Due Process?

In the world of special education, DUE PROCESS is like a mini trial. One party “files due process” against the other, and then there is a hearing with witnesses and evidence presented. An Independent Hearing Officer (IHO) is appointed by the Ohio Department of Education to hear the case and decide who wins and what they get. Either party can appeal the decision to state court.

Due process is available to any student with a disability who has an Individual Education Program (IEP). It is also available where a school district refuses to evaluate a student to see if they qualify for special education and related services.

Typically, it’s the parents of a child with special needs who will initiate a due process proceeding against a school district, but there are some rare situations in which the district will file due process against the parents. The individuals filing due process–again, this is typically the parents–have the burden of proof. This means that they have to prove to the IHO that Individuals with Disabilities Education Act (IDEA) laws have been violated and that their child is entitled to something from the district. For this reason, and some others, the proceedings are stacked in favor of the district.

The trend we are seeing in due process matters is that the IHO will “split the baby,” meaning that they may find that the school district did not provide a free appropriate public education (FAPE), but instead of requiring the district to pay for

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The ABCs of ABA Funding: Part Four of Four

By Attorney Franklin J. Hickman

The Affordable Care Act, as implemented in Ohio, requires covered health plans to pay for up to 20 hours per week of Applied Behavior Analysis (ABA) or other comparable evidentiary based services for children up to 21 years of age diagnosed with Autism Spectrum Disorder. This is an extraordinary advance for families with children with autism. While the implications and implementation of this directive are not fully realized at this point; the following provides some guidance based on information available to date.


The Affordable Care Act requires States to ensure that covered plans include specified Essential Health Benefits (EHB). EHBs are listed at 45 CFR 156.110 and include rehabilitative and habilitative services and devices. “Habilitative Services” are not defined in the Federal rules; States have discretion to define services to be included in this category. 45 CFR 156.110(f).

On December 26, 2012, Governor Kasich confirmed that Ohio was exercising its authority to define habilitative services as follows:

Habilitative services benefits shall be determined by the individual plans and must include, but shall not be limited to, Habilitative Services to children (0 to 21) with a medical diagnosis of Autism Spectrum disorder which at a minimum shall include:

(1) Out-Patient Physical Rehabilitation Services including

(a) Speech and Language therapy and/or Occupational therapy, performed by a licensed therapists, 20 visits per year of each service; and

(b) Clinical Therapeutic Intervention defined as therapies supported by empirical evidence, which include but are not limited to Applied Behavioral Analysis,

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The ABCs of ABA Funding, Part Three of Four: Accessing ABA through Public Schools

By Attorney Franklin J. Hickman

This is the third in a series of articles on access funding for Applied Behavior Analysis – ABA. The Federal law governing school-aged children with disabilities is a valuable tool in obtaining such services.

The Basics
The Individuals with Disabilities Education Act (IDEA) is the Federal law requiring states that receive certain types of Federal funding to provide a Free, Appropriate Public Education (FAPE) to children aged 3 through 21 until graduation or GED. The Federal law can be found at 20 USC §§1401 et seq. and 34 CFR Part 300.

The educational program must meet the unique needs of the child and be offered at no cost to parents. A program is appropriate if it enables the child to be involved in and make progress in the general education curriculum. In Deal v. Hamilton County Board of Education, 392 F. 3d 840 (2004), the 6th Circuit Court of Appeals defined the scope of IDEA’s requirements as follows:

  • IDEA requires an IEP to “confer a ‘meaningful educational benefit’ gauged in relation to the potential of the child at issue.”
  • “[T]he intent of Congress: …to require a program providing a meaningful educational benefit toward the goal of self-sufficiency.”
  • “Some” benefit is not enough.

Services must include academic and related services which are necessary to allow the child to benefit educationally from instruction. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). Examples of related services include transportation, speech/language, PT, OT, counseling, and services

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