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Divorcing Parents of Special Needs Children – Part 2: What You Don’t Know Can Hurt You

Posted by Sunshine, Isaacson & Hecht LLP on May 4th, 2015

Divorcing Parents of Special Needs Children By Joshua B. Hecht{5:01 minutes to read} In our first article we discussed: 1) what divorcing parents of a child with special needs should know about structuring a settlement agreement; 2) how a Supplemental Needs Trust needs to be addressed in the Agreement to ensure that the child with special needs maintains eligibility for government benefits; and 3) how child support needs to be earmarked, allocated and ordered into the Supplemental Needs Trust to ensure continued government benefits.

In Part 2, we examine the effects of decision making within the agreement, maximizing medical benefits and planning for the transition from school into adulthood.

Even when working together, parents of children with special needs often have sleepless nights and terrible fights with their school district. Add a divorce to this equation, and the parents are confronted, not only with these common issues, but with who has the right to make Special Education decisions.

As prologue, The Individuals with Disabilities Education Act (IDEA) requires school districts to provide special education services to each child with disability according to their unique needs for the purposes of further education, independent living and future employment. Under IDEA, school districts are required to form a Committee on Special Education (CSE) and hold meetings to create an Individual Education Plan (IEP) for each child with a disability. The IEP sets forth the particular child’s needs, where the child is going to be placed and what types of services the child will receive. Whether the supports are speech therapy, occupational therapy or reading support, they must be described in the IEP.

Parents are an integral part of the CSE. In a divorce situation, which parent is the school district supposed to listen to, particularly when they have differing views? Parents can decide in a settlement agreement to share decision-making, or even that the non-custodial parent will be the Special Education decision maker. If the agreement is silent on this matter, New York State law holds that the custodial parent has the sole right to Special Education decisions. Often, parents do not know this; sometimes even lawyers aren’t aware of these aspects of the law.

Another little-known aspect of the law regards health and medical insurance. In New York State, a child with a permanent disability, with onset prior to age 22, is covered under their parent’s health insurance for as long as the parent has the insurance. For example, a 33-year old developmentally disabled child is covered under the parent’s health insurance at no additional cost (provided the parent has family coverage). This avoids the need for a parent to buy separate policies when their child reaches adulthood.

This means the decision about who will carry the health insurance is important, because whoever has the more inclusive policy or the better health insurance should provide coverage for the child, especially when the child is medically involved as part of their disability.

Finally, consideration needs to be given to a child with special needs reaching adulthood or emancipation. Under IDEA, school districts are required to provide Transition Planning to assist the child in transitioning to the adult world. In New York this planning should start when the child reaches age 15. Transition planning includes exploring guardianship, adult programs, further education and employment training.

Because New York State presumes anyone who is 18 or older to be a competent adult unless the court states otherwise, it is vitally important that parents of a child with special needs seek guardianship at age 18 in those instances where the child is not competent  or is unable to make financial or health decisions for themselves.  Parents should establish an estate plan so that the child does not inherit assets at the death of the parent which would cause the loss of government benefits.

Guardianship becomes particularly important because privacy laws may prevent doctors from speaking with the parent without your child’s consent. Doctors don’t have to disclose the medical condition of your child to the parent. Guardianship resolves these issues, both in terms of gaining medical information and in making medical decisions. The settlement agreement should stipulate who is the child’s guardian, who should be the standby guardian, and even who should be the alternate standby guardian.

In sum and substance, when it comes to drafting a settlement agreement to address the needs of a disabled child, the devil is in the details. A well-planned agreement will provide consistency and clarity as to which parent is able to make the crucial decisions and ensure that the parent has access to the necessary information to render those decisions.

This blog post was co-authored with Saundra Gumerove, Esq.  As the parent of a child with special needs, Sandy focuses her practice on working with individuals with special needs and their families to plan for the future.  She can be reached at 516-822-3397 or at smg@smgesq.com.

We look forward to answering your questions and reading your comments. If you would like to contact us directly, you can do so at 516-352-2100 or jhecht@sihllp.com.

Joshua B. HechtJoshua B. Hecht
Sunshine, Isaacson & Hecht, LLP
(516) 352-2100
(212) 376-5080

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