Special Needs Students – Over 18

Thinking ahead and creating a plan is key for parents of special needs children. As the age of majority approaches, parents should take a real assessment of which areas their child might need assistance with or simply the oversight of after turning 18. Piper Paul Law can guide you through this process by helping you ask and answer the questions that will guide you towards the most appropriate path for your child. Whether you need a special needs trust, a conservatorship, or another instrument that provides you the ability to maintain oversight and/or decision-making for your child, we have over 18 years of experience guiding families.

Section 504 and the ADAAA

Section 504 of the Rehabilitation Act of 1973, in conjunction with the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), provides protection for persons with disabilities for any program or activity that receives federal funds. Any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment is protected under the law. The ADAAA makes clear the definition of disability, “shall be construed in favor of a broad range of individuals.” The ADAAA greatly expanded the list of major life activities to include major bodily functions, such as functions of the immune system, as well as sleeping, eating, thinking, manual tasks, walking, and working. Students with individualized education programs (IEPs) or Section 504 plans are entitled to 504 Plans after they complete high school.

College/Trade Schools/Life

If your child had a 504 plan or an IEP, he or she is entitled to a 504 plan for the next chapter in life. At the college/vocational/trade school level if their program receives federal funding, they have a right to a 504 plan and they must speak with the school’s Office of Disabilities to find out what information is needed to put the plan in place. A letter from your child’s provider noting the disability, impact of the disability, and required accommodations and modifications will be needed. Oftentimes, a recent psychological evaluation, depending on the disability, will be required. Students or their guardian must advocate for accommodations and modifications and let their instructors know about their 504 plans to ensure the playing field is level with their non-disabled peers.

In the workplace, whether or not accommodations and/ or modifications are granted turns on several factors; such as the size of the company, you or your son/ daughter should contact an employment attorney with any questions to find out if the employer must provide accommodations and/ or modifications under either Section 504 or the ADA.

Transition Planning and the Availability of Special Education and Related Services to Age 21

Both the Individuals with Disabilities Education Act (IDEA) and Section 504 address transition services and requirements. A seamless transition requires transition assessments, input from the student and the family, IEP goals and objectives that equip the student with skills and knowledge needed to engage in the 21st-century workforce, and planning. The overall purpose of the IDEA is to ensure all children with disabilities have available a free appropriate public education that “emphasizes special education and related services designed to meet their unique needs and prepares them for further education, employment, and independent living,” 20 USC §1400(d)(1(A)(2); 34 CFR 300.1(a). Transition services are a coordinated set of activities that are results-oriented, as well as focused on improving academic and functional achievement to help the child move from school to post-school activities. Such services are also based on the person’s needs and include instruction, related services, community experiences, the development of employment and post-secondary adult living objectives and daily living skills, if appropriate. See CFR §300.43.

Transition services must be in effect when the student turns 16 (or younger, if determined by the IEP team) and must be updated annually. Students may be eligible for special education and related services through their 21^st year. It is important for you to speak with an experienced and seasoned education attorney to discuss your child’s transition rights and ensure you do not waive any transition rights your child may have.

Durable Power of Attorney/Conservatorship/Guardianship

When your child turns 18, the district may tell you that they can only communicate with your child and can no longer communicate with you. You and your child have several options. If your child does not have cognitive challenges and wants you to be the main person to communicate with the district, a Durable Power of Attorney assigning you as the Agent and signed by your child (who is technically an adult at 18), is a great option. You will need to complete a legal form and the form will need to be notarized and a copy provided to the district. Your child can assign rights to you and can withdraw consent at any time in writing.

If your child has more challenging disabilities and/or is more compromised cognitively, you may want to go to probate court for a Conservatorship, also known as a Guardianship. There is a voluntary conservatorship and an involuntary conservatorship. Our firm can help you with this process.

Making sure your son/ daughter has the appropriate support after turning 18 requires advance planning. Striking a proper balance between protection and allowing your child the ability to grow and mature within their ability is key. Piper Paul Law is experienced in working with families for transition planning, transition programming with the district through the 21^st year, as well as continuing the process in probate court. We welcome the opportunity to be part of your team to advocate on behalf of your family.