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What Is PL 94-142 and Why Is it Important in Special Education?

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Its bureaucratic name may be generic and mundane, but PL 94-142 completely changed the game for people with disabilities who wanted to receive an education that was equitable to the education provided for people without disabilities. Read on to learn what changed when PL 94-142 became law and why it’s crucial for students benefiting from special education programs.

What Was the Education for All Handicapped Children Act?

The Education for All Handicapped Children Act (EHA) was Public Law (PL) 94-142 when Congress first passed it in 1975. Its goal was to protect the rights of, meet the individual needs of, and improve results for children with disabilities and their families.

In 1990, PL 94-142 was reauthorized in Congress, and the act’s name was changed to the Individuals with Disabilities Education Act (IDEA) to use a more contemporary and respectful term.

What Happened to Students with Disabilities Before the EHA or IDEA?

Before the EHA’s passage, children with disabilities were largely refused access to education and educational opportunities. There were even states that had laws on the books allowing schools to refuse to provide education to certain types of students, including a variety of disabilities, whether physical, intellectual, or emotional. Only about 20% of those students had access to schooling.

But PL 94-142 made sweeping changes. In the 1970s, nearly 2 million children with disabilities couldn’t attend public schools. By 2021, more than 7.5 million children with disabilities attended school and had access to special education and other accommodations to help them learn along with their non-disabled peers. Many of those students spend most of their day in general education classrooms rather than separate special education rooms. Moreover, more of these children attend neighborhood schools rather than schools focused primarily on their disability (a school for the blind or deaf, for example).

What Changed Once PL 94-142 Was Enacted?

The act began to level the playing field for children with disabilities. It mandated that public schools across the U.S. provide free education, special education for students between the ages of 3-21, and any supplemental services or resources needed to provide those forms of education.

It also guaranteed three other crucial items.

  • Zero reject. Public schools could not refuse to enroll students because of their disabilities, no matter how severe. The only exception is if the child has an easily transmissible disease. But otherwise, accommodations must be made.
  • Least restrictive environment (LRE). This clause guarantees a child’s right to attend as many regular education classes as possible. This is important because it keeps the child with the disability from being permanently segregated from the rest of their classmates. Besides providing education, it also provides social experiences they would otherwise miss out on.
  • Individualized education program (IEP). The development of the IEP was a critical part of PL 94-142. Depending on the type of disability each student has, they may need different kinds of accommodations for their education. Working with education professionals and parents, a detailed plan is created for each student with a disability that spells out how the child performs academically, what the ongoing goals are, what the performance markers are, and what services and resources are needed to potentially achieve those goals. This has become a vital document for millions of students across the U.S.

Did Anything Change when PL 94-142 Was Reauthorized in 1990 as IDEA?

Yes. First of all, traumatic brain injury (TBI), which includes concussions, and autism were added to the list of disabilities. It also mandated that transition plans be created by the time the student turned 16 to address what the student could do after high school in terms of independent living and potential employment. This plan is created by education professionals and in coordination with various social and community services.

More changes were made via amendments to IDEA in 1997, including lowering the age of transition planning to 14, the inclusion of assistive technology devices as well as orientation and mobility devices, and teachers becoming part of the IEP team.

What Are the Six Pillars of IDEA?

Today, IDEA is a complex, multifaceted education act focusing on six pillars for students with disabilities.

  • Free appropriate public education (FAPE). This is the guiding principle of IDEA: that students with disabilities receive the same general education as students without.
  • IEP. As discussed above, this is a detailed action plan to help the child with disabilities receive an equitable education via public schools.
  • LRE. As discussed above, this encourages the child’s participation in the general education classroom, not entirely relegated to special education classrooms.
  • Appropriate evaluation. Each school must have adequate evaluation standards and mechanisms to determine whether those standards are being met and, if not, why not, and what could be changed.
  • Parent and teacher participation. Whereas previously, special education was handled by special education teachers or school administration, general education teachers and parents are now part of the process.
  • Procedural safeguards. This involves parents being made aware of their rights and responsibilities, as well as how they can review their child’s progress, be involved in the process, and how disputes will be handled (usually mediation).

What Should I Do if I Need Legal Help with My Child’s Special Education Needs or IEP?

Call us at 832-422-7333 for a free, in-depth, no-obligation discovery call. Our team of special education law attorneys is experienced and knowledgeable in what schools must provide for students with disabilities. We understand how important your child’s education is to you, and we’ll work with you to ensure the schools provide the services and resources to help your child learn.

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When your child has an Individualized Education Program (IEP) set up with your school, you may have many questions in terms of how it works, how it’s monitored, how progress is tracked, what happens if enough progress isn’t being made, and should changes be made to the IEP. Sometimes it can feel intimidating to request a meeting with school professionals. But in Texas, parents have the right to request an IEP team meeting at any time, and there are many good times to do so.

What is an IEP?

IEPs are programs mandated by the U.S. Department of Education’s Individuals with Disabilities Education Act (IDEA) that says children with disabilities must be provided an appropriate education. These programs are meant to ensure that no matter the disability, every child will receive the services needed to provide them with the best education possible.

It does so by assessing the child and determining the best approach to providing education and what resources will be required to achieve that.

What Disabilities Are Eligible for IEP Services?

It’s not uncommon for people to think about physical conditions when they see the word “disabilities” and think that the types of resources needed amount to things like having Braille books for the blind or American Sign Language interpreters for the deaf. While these are disabilities that need to be accommodated, there are many more conditions covered by IDEA. In Texas, the following can be considered eligible for IEPs:

  • Auditory impairment
  • Autism
  • Emotional disturbance
  • Intellectual disability
  • Orthopedic impairment
  • Learning disability
  • Speech impairment
  • Traumatic brain injury
  • Visual impairment
  • Other health impairments or non-categorical early childhood conditions

What Is the Parent’s Role with the IEP Team?

The parent has a vital role on the admission, review, and dismissal (ARD) committee with the education professionals. The ARD committee is the group that will evaluate the child and determines the best course of action in the future. As part of the ARD, parents should feel welcome and actively encouraged to participate. You know your child well and see aspects of them at home and in private life. These aspects may not be seen at school and can help educational professionals have a well-rounded view of your child that will enable them to make the best recommendations possible.

Along with the parent, other members of the ARD must include at least one regular education teacher, at least one special education teacher or provider, a school representative, someone with the expertise to interpret the implications of the evaluation in terms of how they’ll affect the child’s ability to learn, and at times, the child. There are times when one or more people can be excused from an IEP meeting, such as when that person’s particular expertise is not relevant to the discussion. If the expertise is relevant, they can only be excused if the parent agrees in writing, the school consents to the absence, and the person being excused provides a written account of what they would have presented at the meeting. This must be available for the rest of the ARD and the parents in advance of the meeting.

In general, the ARD will consider parental input and history, recent evaluations of the child, the child’s various needs that affect their academic performance (whether academic, developmental, or functional), and the strengths of the child.

When Do IEP Teams Usually Meet with Parents?

The parents usually meet the IEP team for the first time after evaluating the child. At that time, the team will go over the results of the evaluation and explain if the child is eligible for IEP services, or if not, why not, and what the next steps may be.

Once an IEP is put into place, the ARD committee must meet at least once a year to review the child’s progress and develop a new IEP for the following year. At that annual meeting, the discussion will focus on the child’s progress toward the IEP’s goals, if new goals should be implemented (whether more or less challenging, depending on the progress made), whether any changes to the services and special education are needed, and any other information related to the child.

Can I Request an IEP Team Meeting at Some Point Other than the Annual Review?

Yes. This usually occurs when new, unexpected challenges arise, or any member of the ARD sees problems happening that need to be addressed sooner than the annual meeting. The meeting has to be scheduled at a mutually agreeable time for all relevant committee members who need to attend.

Typically, parents may request a meeting if they feel needed services aren’t being provided, if the academic progress appears not to be happening in the expected time frame, if the parent feels the child could handle more challenging work, if there are issues with any of the special education providers, or other issues.

What Should I Do if I Feel My Child’s School Isn’t Responsive About the IEP?

Call us at 832-422-7333 for a free, in-depth, no-obligation discovery call. Your child’s education is vitally important, to them and you, and making sure they’re receiving what they’re legally entitled to is a top priority, for you and for us. We have years of experience working with Texas schools and IEPs, so we have knowledge and insight into how IEPs should and shouldn’t work. We understand that we represent not just you, but your child–and we will take their IEP as seriously as we’d take our own children’s.

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It’s hard enough to consider the fact that someday we will no longer be part of our loved ones’ lives. Planning for that future can be emotionally difficult. But no matter what, it’s important to plan ahead. It’s even more important when there is an adult child with special needs who will need security and protection after your passing, especially if lifetime supervision or guardianship is required. Here are some of the considerations that need to be addressed. It’s in your best interests to work with not just an estate planning attorney, but one that has experience with special needs planning. That’s because a poorly planned estate could cause the child to become ineligible for benefits that could aid them throughout their life.

When Should I Begin Planning My Estate Regarding My Adult Child with Special Needs?

It’s never too soon. Much as we all plan to live as long as possible, that doesn’t always happen. Even if the person with special needs is still a minor, planning ahead to their adult years is advised, so you’ll have the peace of mind that comes with knowing you’ve taken care of them.

Letting it go until later can lead to a situation where the courts will be in charge of determining the best for the child, not you.

What Are Some Tools Available to Protect My Adult Child with Special Needs?

There are many, and the value of each one depends on the specific needs of your child, the size of your estate, and whether or not there are younger family members who may be willing to step in to care for the child when you’re no longer able.

Trusts

Trusts need to be approached with caution, because beneficiaries of certain types of trusts are generally not eligible to receive Social Security Income (SSI) or Medicaid. But they’re valuable tools in terms of protecting the beneficiary from creditors or scammers while making sure they have the income and guardianship they need. 

Specific special needs trusts can be structured to allow the beneficiary to receive SSI or Medicaid.

  • Self-settled special needs trust. This type of trust is established by a parent, grandparent, legal guardian, or the court to allow the special needs person to directly use the assets of the trust (often an inheritance or settlement from a lawsuit) throughout their lifetime. The trust must be established before they turn 65. On their death, any remaining funds go first to reimburse any Medicaid earned by the special needs person. 
  • Third-party special needs trust. This type of trust is often used in estate planning that involves special needs beneficiaries as it’s the clearest way to avoid losing access to SSI or Medicaid. In this trust, people (often family members or other loved ones) set up a trust that can’t be accessed directly by the beneficiary, but is overseen by a trustee who is responsible for disbursing funds to the beneficiary. The people setting up the trust can specify how disbursements should be handled. 

Other tactics

Trusts are among the most common ways to protect an adult with special needs, but there are other options.

  • Disinheritance. This involves leaving the special needs adult out of the will and giving the estate’s assets to another sibling or relative who is appointed to care for the special needs person. However, this is risky in that after your death, the relative may choose not to care for the special needs person (which is legal), or they may run into financial or legal troubles that cause them to need the assets themselves, such as in a contentious divorce.
  • A trust that doesn’t directly benefit the special needs adult. A trust known as a supplemental needs trust can be used to pay for things other than medical care, food, clothing, or shelter–items covered by SSI and Medicaid. They can be used for nearly anything not covered by SSI or Medicaid. 

What Do I Need to Know about Planning My Estate to Protect My Adult Child with Special Needs?

The first step is having a full understanding of your child’s needs and health going forward. Talk to the child’s doctor, specialist, or therapist about what the long-term prognosis is. That should include a frank discussion of whether or not the child will be able to support themself and live alone in the future, what their quality of life is likely to be, if they’ll be capable of handling their own finances or need support for that, and what, if any, types of medical support they’ll need.

Identifying these key concerns can help determine if your estate can provide for the child going forward or if they’ll need help from various social services or government agencies. The tactics reviewed above are commonly used ways to protect your special needs offspring. Understanding the nuances of their needs and your wishes guides our recommendations.

What Should I Do if I Need to Plan for My Special Needs Adult Child’s Future?

Call us at 832-422-7333 for a free, no-obligation discovery call. We have years of experience in estate planning with an emphasis on making sure your adult child with special needs is provided for. We know that you want the best for your child, and you want to be sure they’ll be cared for and safe in your absence. We understand the various options that you can use to make sure that happens, and we’ll help you determine which options are best for you and your child.

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No one wants to realize that a loved adult can no longer safely care for themselves. It’s a heartbreaking, stressful situation that can cause grief and anxiety. There can also be denial: Maybe we’re just imagining things, or maybe this is just the normal aging process, nothing to worry about.

While some things are part of that aging process, such as an increased inability to remember specific words or names, other symptoms are more problematic. They should be investigated by a medical professional who can determine if these are just part of routine aging or indicate that more assistance is needed. Here’s what to watch for broken out into three different categories:

Financial Issues

One sign is something often missed by others, especially if they’re not involved in the day-to-day life of the adult in question, and that’s financial issues. It may take the form of their inability to manage their finances, which can lead to missed rent or mortgage payments, or they’re beginning to bounce checks.

But there are other signs, including a decline in the physical quality of life. Suppose they seem unable to afford things they’ve previously afforded (vacations, new or newer vehicles, medical care). In that case, it might be time to look for a financial care guardian to help them before they lose their home or other significant crisis.

Mental and Emotional Issues

Most people experience some mild forgetfulness as they age. But if someone you know is showing more pronounced forgetfulness, especially if it’s interfering with their quality of life or ability to live safely, that’s a sign that shouldn’t be ignored. Examples include forgetting to take medications or missing doctor appointments, getting lost in places they previously knew well, or failing to eat and not dressing appropriately when going out (for example, wearing heavy clothing on a dangerously hot day).

Even if their memory doesn’t seem to be a problem, signs of depression, anxiety, and confusion are warning signs that should be attended to as well.

Physical Issues

Some physical issues can be related to mental and emotional problems. You might not notice the adult not eating enough, but you see them lose weight. Or they may not care for themselves as they once did, which might be tied to depression or memory loss. Examples include not keeping themselves or their home clean, or food rotting in the refrigerator.

Other physical symptoms include a declining ability to handle movement in their daily life, whether it’s getting from one room to another or up and down stairs. They may run into things or stumble more often, showing signs of bruising more frequently.

How Do the Courts Define Someone as Needing Guardianship?

In Texas, an adult who cannot provide for their own food, clothing, or shelter, and/or cannot care for their physical health or manage their finances could be considered a candidate for guardianship.

There are two types of guardians. A “guardian of the person” handles personal matters, whether housing or medical. A “guardian of the estate” handles finances. One person can do both.

Does Finding a Guardian for an Adult Involve Going Through the Courts?

Yes. This is not something to undertake lightly, as the courts take it very seriously. That’s because when someone is appointed a guardian, the person needing the guardianship will lose some of their human rights, something not done without care. It’s also why having an attorney who understands and is experienced in this field is recommended.

The process begins with filing an application with the court. Then a judge will have a hearing and, if the judge deems it necessary, they’ll appoint a guardian. However, this is usually the last resort people take when helping adults who are no longer fully competent to help themselves. Before a judge is willing to take away the person’s rights, they’re likely going to want to identify might what other remedies exist.

Some of those options include having family members or other trusted people help the adult manage the situations that have become difficult for them, whether that’s keeping their home clean, making sure they eat properly, or taking them to doctor appointments and ensuring medication schedules are followed. If there isn’t a close family member available, there may be services through county programs or Medicaid.

Once those options are off the table, the judge is more likely to consider appointing a guardian.

What is Required to Become a Guardian?

In Texas, guardians must be either a family member or a non-relative appointed by the court. In order to officially become a guardian, that person must complete an online certification course, take and file a required oath, provide a required bond, and have that bond filed with the clerk and approved by the judge.

What if I Think a Loved Adult Might Need a Guardian?

Call us at 832-422-7333 for a free, in-depth, no-obligation discovery call. Our focus is on special needs and guardianship law, so we have experience and knowledge that could benefit you. We understand how stressful this situation can be, and we want to help guide you through it to identify the best outcomes for you and the adult in question, so you both can move forward with your lives with a sense of safety and protection.

Guardianship for adults is a complicated process that benefits from having professional assistance. We want the best for you and the adult who may need a guardian. Let us help you learn what’s possible and what’s needed to make this process a success.

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No parent wants to consider the idea that something might happen to them that would prevent their ability to see their child through to self-supporting adulthood. But sometimes that happens. Having a plan in place is strongly recommended so that the child is immediately taken care of by someone you trust and can rely on. Here are some things to consider when thinking of setting up a guardianship to go into effect if something happens to you. The more carefully you plan for guardianship, the likelier it is you’ll have a guardian who will care for your child as you want them to. Leaving it to chance could mean that the courts step in and appoint a guardian for the child–and they may not have the same approach or values.

What Are Your Priorities for a Guardian for Your Child?

Obviously, ensuring the child has a safe and supportive home environment with access to necessities such as education and medical care is critical. But there are several other considerations that need to be addressed to find the right person.

  • Your values. Many people have specific moral, ethical, or religious values they want to be taught to their children. Finding a guardian who is aligned with your beliefs or is someone you can trust to share those beliefs is vital. Values can also include how you’d like the child to be educated.
  • Geography. Is the person(s) you might want to be a guardian nearby or far away? That’s a two-pronged question in that it could be even more traumatic if the child has to move far away if something happens to you. But it’s also more likely that the child won’t know the guardian well (and vice versa) if they don’t live in the vicinity.
  • Age and health. A potential guardian should be someone of an age and state of health in which they’re more likely to live longer than someone older and in poorer health.
  • Parenting style. This is one you need to grapple with first. If your parenting style is somewhat strict with orderly routines, would you accept a guardian who has a more relaxed parenting style? This doesn’t mean accepting a potentially abusive guardian but one who is less concerned with structure and rules.
  • Financial situation. Are they employed or independently wealthy? Do they have a track record of spending wildly or changing jobs frequently? They may not be the right candidate to provide a stable, safe home.

What Can I Do to Help a Potential Guardian Prepare for My Child?

These are hard conversations to have, but far better to have them before anything happens than when it’s too late. Sometimes people think they would like the guardian to raise the child as if they were the guardian’s own child, but they may not understand what that actually means.

Instead, open a dialogue with the person(s) you’d like to be guardians. They need to know what’s involved and decide whether or not to accept the responsibility. Some may say no, and while it may seem like an insult, it’s better to know that up front, so you can move on and find someone appropriate who will say yes. All of the topics listed above should be open for discussion. If they feel uncomfortable, an attorney can help guide the meeting and conversation.

What Are Other Considerations for Choosing a Guardian for My Child?

Often people think they should just only one person to be guardian. But that can be short-sighted. Having a few guardians that you’ve vetted who have all agreed to take on that responsibility if need be is ideal. It’s fine to list them in order of preference. As time goes on, people’s situations may change. You may have a falling-out with someone on the list, or someone may experience a negative life-changing event (for example, a terminal cancer diagnosis) that makes them unable to take on a child. Having more than one guardian lined up means you can focus on taking care of your friend rather than scrambling for a replacement.

Who you don’t choose is important too. If there are specific people you absolutely don’t want raising your child, as awkward as it sounds, make them part of the legal guardianship documents by stating they are not eligible. This is especially important if you’re divorced and have full custody of the child and for various reasons, don’t want your former spouse involved. Leaving it to the courts after your death could lead to an undesirable outcome.

Finally, don’t choose someone just because they think they should be guardian. That could be a grandparent, aunt, or close family friend who may love the child and think they’d be perfect. But if the age of the grandparent is of concern, or the financials or lifestyle of the close family friend worry you, don’t name them as guardian just to be kind to them. The future of your child is at stake.

How Should I Begin the Process of Choosing the Right Guardian for My Child?

Call us at 832-422-7333 for a free, in-depth, no-obligation discovery call. We understand how important it is to choose the right guardian for your child. With our experience and knowledge, we can help guide you through the selection process and consider aspects you might not be aware of. Then we can advise you in how to draw up the legal documents to make that selection binding.

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A spend down is a situation in which someone applied for Medicaid coverage and was denied because they had too much money, known as excess income. However, in some cases, people may be able to reduce their excess income through the spend-down process and become eligible for Medicaid.

Think of a spend down as akin to a health insurance deductible. When you have that type of deductible, you must pay your medical costs until you meet the deductible. At this time, the health insurance pays most or all of your medical expenses for the rest of the year as defined by your health insurance policy (usually a calendar year).

The spend down works in a similar way. When the cost of your medical bills becomes greater than your excess income, you become eligible for Medicaid for that month. Keep in mind that you have to pay out of pocket for the amount up to the threshold of the excess income, while Medicaid will pay the bills over the amount of the excess income.

However, if your medical bills are because you were hospitalized within six months of applying for eligibility, Medicaid may agree to cover you for up to six months. This is something a long-term planning and Medicaid attorney could help you with. If you have been hospitalized recently, you may qualify for Medicaid for up to 6 months.

What medical bills and expenses can be counted toward a spend down?

There are several medical bills and expenses that can be counted, depending on the makeup of your household. 

  • Your and/or your spouse’s/ medical bills. 
  • Bills parents receive for their child’s spend down. 
  • Bills either for a child living with you or for a child who does not live with you but whose medical bills you pay either in full or part, depending on the terms of child support and/or custody. 
  • Unpaid medical bills of up to six years old for yourself or any of the people named above. 
  • Parts of medical bills not covered by Medicare or any private insurance you may have. 
  • Medical expenses paid on your behalf by public programs, including the Child Health Insurance Program (CHIP) or the Elderly Pharmaceutical Insurance Program (EPIC), including insurance premiums. 
  • Both paid and unpaid medical bills which have recently accrued. 
  • Costs owed to therapists, drug and/or alcohol programs, nurses, and personal care attendants and/or home health aides if required by a doctor. 
  • Out-of-pocket prescription drug costs. 
  • When required by a doctor, costs involving medical and surgical supplies and equipment, prosthetic devices, and assistive devices such as hearing aids and eyeglasses. 
  • Sometimes, but not always, any transportation expenses to get medical services. 

Are there expenses that Medicaid will not pay, but which apply toward a spend down?

Yes, there are some expenses for things not paid by Medicaid, but which they allow to be applied toward a spend down. 

  • Medical services either not covered by Medicaid or from health care providers who aren’t part of Medicaid. 
  • Some over-the-counter drugs and medical supplies if they’re determined to be medically necessary or ordered by a doctor. 

Note that bills for cosmetics (surgery or office procedures and other nonmedical items are not eligible for a spend down. 

What Are Medicaid’s Income Restrictions?

The answer to that is complicated by the fact that it varies by state and the number of people in a household. In 2022, the majority of states capped the income at $2,523 for a single person and $5,046 for a married couple. In many cases, these limits apply to people who are nursing home-type residences or receive community-based services. Currently only Idaho has a slightly higher income limit, while some states have lower income caps or have restrictions that effectively lower the cap.

Some states theoretically have no income caps, but in some cases, they have other restrictions that act as caps. In other states, the income caps are set depending on the cost of the medical care received. That means that someone’s income must not exceed the cost of the care they receive, or they’re not eligible for Medicaid. One state (Missouri) has rules requiring people who live in nursing homes to have all of their income going to the costs of the nursing home. 

Because there is so much variation, it’s worth working with an attorney experienced in this area. 

Who Is Eligible for a Medicaid Spend Down?

Medicaid has restrictions on who can use a spend down to qualify for a spend down. Here are the groups that qualify:

  • Adults aged over 65 years  
  • Children aged under 21 
  • People who are disabled or blind 
  • Families with one or both parents absent or dead, disabled, or out of work 

If Medicaid denies your application for full coverage, the notice must include the reason(s) you’ve been denied. If it’s because of excess income, that notification will explain if you qualify for a spend down. If you are, it will also detail how much the spend down must be to qualify for Medicaid coverage. 

What Should I Do if I Want to Apply for Medicaid but Worry My Income is Too High?

Call us at 832-422-7333 for a free, in-depth, no-obligation discovery call. Our firm focuses on special needs, disability-related law, and long-term planning and Medicaid needs. Medicaid is an essential part of many people’s long-term planning, but it’s a complicated, confusing process to go through. We’re here to help you learn how to maximize your Medicaid benefits and clear potential obstacles in the process.

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Entering the world of special needs and individualized education programs (IEPs) can be overwhelming at first, not least because it’s an area with a specialized vocabulary and numerous acronyms that can be hard to sort out. Bottom line: You have many rights under Texas law. Some of those rights include:

  • If your child has or may have a disability and could need services, you have the right to have your child evaluated at no cost or commitment from you.
  • The school must have your written permission before performing an evaluation. Agreeing to the evaluation does not mean you’ve also agreed to special education services.
  • You must be allowed to be part of the group that reviews the evaluation and its recommendations. If your child is eligible, you can choose whether or not to accept any services, including an IEP. If your child is deemed ineligible, you have the right to request an independent education evaluation (IEE) at the school’s expense.
  • If you agree to use the school’s special services, you have the right to be part of the admission review and dismissal (ARD) committee. You’re also required to participate in creating the IEP.
  • A child with a disability has special rules regarding disciplinary actions taken against them. Some situations require the ARD committee to meet and discuss what’s happening and how it could be handled.

What is an IEP?

IEPs were put into place with the federal Individuals with Disabilities Act (IDEA), which requires an IEP for any student that has been diagnosed with a disability and would benefit from special education services. Each IEP is developed by the parents and other members of the IEP (or ARD) Committee.

Because each child’s needs are evaluated individually, the IEP will vary from student to student. The plan is re-evaluated at least annually to ensure it’s still beneficial; if not, it’s modified to work with the current situation.

What is Included in an IEP?

In Texas, IEPs must include several things:

  • A statement of the student’s present levels of academic achievement and functional performance (PLAAFP). This starts with the special needs evaluation that’s conducted and considers academic skills, daily living skills (eating, using the bathroom, etc.), social skills, overall behavior, sensory skills (hearing and seeing), communication skills, and physical mobility. There will also be a statement of how the student will participate in state and district assessments.
  • A statement naming the goals that are set for the coming year and how progress toward those goals will be measured. 
  • A listing of the accommodations that will be made for the student. That can include adaptations to the way the curriculum is taught to work with the child’s disabilities. It can also include help with eating or bathroom visits, providing quiet space, an educational aide, or other resources and services.
  • Descriptions of the instructional setting and length of the student’s school day, opportunities for extracurricular and nonacademic activities (or justification for not participating), and how often parents will be updated regarding the progress of their child. 
  • The written IEP will document the decisions of the admission, review, and dismissal (ARD) committee and include information on discussions held on IEP topics at each meeting.
  • Supplements that detail additional accommodations for children with certain disabilities or needs, including students who are blind or visually impaired, autistic, placed in a residential educational facility or at the Texas schools for the blind or deaf, or a behavior intervention plan.

What Are Some of the Benefits of Setting up an IEP for My Child?

There are several: 

  • An IEP requires the school to provide the necessary services, support, and instruction using methods and, where applicable, technology that best suits their needs, along with the most suitable learning environment. The key acronyms of this provision are FAPE (free appropriate public education) and LRE (least restrictive environment), the latter of which refers to the rights of the child to be in a classroom with nondisabled children as much of the time as possible.
  • SDI (specially designed instruction). This is the part that tailors the education your child receives to their needs and abilities.
  • Annual goals, accommodations, and modifications. Every year the ARD committee, of which the parent is required to be a member, will develop goals with specific steps, and then review them at the end of each grading period to see if they’re working and if not, why not, and what can be changed. Accommodations refer to the changes made in how your child learns or demonstrates learning, and modifications change what your child is expected to learn. 

What if I Have Problems with My Child’s School and the IEP?

Call us as soon as possible to start the conversation. Special needs law is the only type of law we practice. Before we became attorneys, we were teachers, so we understand both the educational side and the legal side. We’re here to help you through what can be confusing, daunting, and frustrating.

While there are legal protections and rights in all of this, there are times when things slip through the cracks, and that’s a good time to bring in special needs attorneys. If you’re concerned in any way regarding how your child’s IEP is being implemented and how your child is (or isn’t) making progress, having a legal team that’s experienced both with education and with the law can help you. If you don’t think your child’s IEP is appropriate; is not being followed properly; or you disagree with the IEP team at the school on what progress your child is or isn’t making, give us a call.

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If you are raising a child with a disability in Texas, you may have heard about the ARD process in regards to their education. ARD stands for “Admission, Review, and Dismissal.” The ARD committee, sometimes referred to as the Individualized Education Program (IEP) team, is formed for your child to help make decisions about their eligibility for special education and related services, and how their special education programs will be structured. This committee will include the child’s parent(s), a regular education teacher and a special education teacher for the child, at least one school representative, and anyone else you or the school district invites. If they are old enough, the child may also be present. Other specialists may join the meeting as well, depending on your child’s needs. While the exact details of the meeting vary by school district, in general, the committee will utilize metrics such as tests and evaluations to set goals for the child’s education and how their needs will be met, so an individualized IEP plan can be drawn up for that school year. 

 When Is an ARD Meeting Needed?

The ARD process helps ensure that your child is receiving all services they need to get the best possible education experience. It allows parents to voice their expectations and opinions about the educational program and can take into account the child’s wants and needs as well, with guidance from educators and specialists. For the education plan to be effective, it needs to be updated frequently to account for changes in the child’s situation. Times when an ARD meeting may be scheduled include:

  • When the child has started school or has changed schools
  • When it is time for the yearly ARD review
  • If the child receives a new diagnosis or performs new assessments
  • When you or a teacher request a change to the IEP
  • If the child is making a transition from public school to life skills training, home or private schooling, or a job
  • The child is having a hard time meeting current IEP goals 

 How Can You Prepare for an ARD Meeting?

As a parent, you know your child better than anyone. When you are properly prepared for your child’s ARD meeting, you can share insights and information with the other members of the committee so they can take this into account while designing the IEP. Some documents which may be useful are:

  • Copies of any recent evaluation reports
  • Medical documentation of your child’s diagnoses and behaviors
  • Any new additions you are requesting to your child’s school records or IEP
  • A list of any new behaviors (good or bad) your child has been exhibiting and any concerns stemming from this
  • A written copy of any comments or observations you have about your child’s academics or functionality 

 What if I Am Dissatisfied With the ARD Process?  

The goal of the ARD process is to provide your child with a free appropriate public education (FAPE) which meets their individual needs. Sometimes parents disagree with the education plan laid out for their child. In these cases, there are formal options for resolving these disagreements such as mediation or state IEP facilitation. If you are still dissatisfied with the treatment of your child after these resolution attempts, you may choose to place your child into a private school setting. If you find yourself in this situation, you may wish to consult a special needs attorney to see if you can recover some or all of the costs of this private schooling if the district failed to provide your child with a FAPE.

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When a child or an incapacitated person is deemed unable to care for their own well being due to age, mental illness, disability, or other circumstances, a guardian may be granted the legal authority to make choices for the protected person and safeguard their interests. This can include making decisions about their finances, as well as their physical care. A guardianship can be full or partial depending on the needs of the child or incapacitated person, who is known as a ward. In Texas, the court is supposed to consider each situation and design the least restrictive guardianship necessary to protect the ward while still granting them as much autonomy as possible. Unfortunately, at times disabled individuals end up with full guardianships that strip them of their ability to make important decisions about their lives.

 What Steps Need to Be Taken Before a Guardianship Is Granted?

A medical report must be obtained which states that the proposed ward would benefit from a guardianship, and whether the availability of certain supports and services would allow them to live under a less restrictive guardianship. The report may recommend which powers and duties of the guardian could be limited if the proposed ward received additional help from other services. Once this report has been presented to the court along with an application for guardianship, a court investigator will research whether there are less restrictive options to guardianship which may be more appropriate. If the investigator determines that guardianship is the best option, then the application will proceed. 

 What Are Some Alternatives to Guardianship?  

While there are times when full guardianship is the best option for the individual involved, it is important to explore less restrictive alternatives when possible. Some options provide financial safeguards for the ward without restricting their personal choices, while others provide them with systems of support and guidance for making important decisions. These alternatives may include placing assets into a trust for management purposes or granting a trusted individual power of attorney over the estate. Texas was also the first state to recognize supported decision-making documents as an alternative to guardianship in 2015. Supported decision-making allows an individual to retain more control over their lives, such as deciding where to live, whether to marry, where to work, and other usual adult choices, while providing them with the formal and informal resources and support they require to meet their needs and help them make beneficial decisions.

How Can a Lawyer Assist You With Guardianship Issues?

When you are trying to protect the best interests of your loved ones, it can feel overwhelming to consider all the options involved with guardianship and its alternatives. A skilled guardianship lawyer can evaluate your situation and help you devise a unique plan to protect your loved one while considering their individual needs and wants. A lawyer will draw up the necessary papers and can assist you if the plan needs to be adjusted in the future. Guardianship lawyers also have experience fighting for the rights of those who have been unfairly forced into guardianship, or have been taken advantage of by their guardians.

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In general, a trust is a legal agreement which allows a third party, known as the trustee, to hold and manage assets on behalf of a beneficiary. There are several types of trusts which can be used for specific purposes and a special needs trust is one of these. It is used by families or guardians of those with disabilities as a means of protecting and managing their loved one’s financial security. The disabled person is always the beneficiary of a special needs trust and the funds are meant to be managed carefully by the trustee and used solely for their benefit. A special needs trust is one tool families can use when planning for the future financial well being of a loved one with disabilities. 

 Why Set Up a Special Needs Trust?  

At a basic level, a special needs trust helps manage and supplement a disabled person’s finances while maintaining their eligibility for their government benefits. In order to qualify for public assistance funds that they often need, people with disabilities must have very minimal assets to their names. Sadly, this can leave them living at poverty levels, which can greatly impact their quality of life. Family members and friends often want to financially help the disabled individual, but are unable to do so directly without endangering their government benefits. A special needs trust can solve this issue, because the funds within the trust can be used for the benefit of the disabled individual without being counted as an asset. 

What Are the Different Types of Special Needs Trusts? 

A first-party or “self-settled” special needs trust is funded by the beneficiary. Often the money for this type of trust comes from an injury settlement or an inheritance. For this type of trust to not count as an asset that may affect the beneficiary’s eligibility for government benefits such as Medical Assistance or SSI, it must meet some guidelines. It has to be irrevocable trust, which means it cannot be changed or canceled once it is created. It also must be created for the sole benefit of a disabled individual who is under the age of 65 when it is funded. It also must state that Medicaid will be reimbursed for any benefits that were paid to the beneficiary on the death of the beneficiary or whenever the trust is terminated. If any excess is left over after this reimbursement, an individual or non-profit may be designated as a beneficiary.

The second type of special needs trust is known as a third-party or supplemental needs trust. This is funded by someone other than the beneficiary, often through gifts, inheritances directed to the trust, or life insurance policy disbursements. This can be created for the benefit of any disabled person to help augment their income for any needs they may have, which can improve their quality of life. 

How Can a Lawyer Assist You With a Special Needs Trust? 

As with any trust, it is best to engage the services of a trusted lawyer who can guide you through the proper steps to create, fund, and administer the special needs trust. There can be several documents involved, and if you are a conservator or guardian for the diabled individual, you will often need the permission of the court before you can set up a special needs trust on their behalf. Often, this trust is just one aspect of building a life plan for the continued care and enrichment of your loved one, and a lawyer can help you ensure that their needs will always be met.