U.S. Supreme Court to Define What an “Appropriate” Education Is for Children with Disabilities

Under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., public schools must provide children with disabilities a “free appropriate public education.” When a school district cannot provide a student with an appropriate education, the IDEA mandates the school district must reimburse the family for the costs of sending their child to a private institution that can provide an appropriate education. However, parents, educators, and courts across the country have disagreed on exactly what constitutes an “appropriate” education for special needs students.

The key mechanism by which schools attempt to meet the IDEA requirement to provide an appropriate education is the individualized education program, or IEP. Each IEP must be reasonably calculated to confer an educational benefit on the child. Some federal courts have said that an appropriate education is provided by an IEP which provides a child with a just above-trivial educational benefit, while other courts have required that IEPs provide a substantial or “meaningful educational benefit.” This divide over the level of educational benefit the IDEA demands has resulted in widely different educational experiences for special needs students across the country.

U.S. Supreme Court has agreed to hear a case in which the Court will define what an “appropriate” education is for children with disabilities.  In Endrew F. v. Douglas County School District, petitioner, Endrew F. (Drew), was diagnosed at age 2 with autism which impaired Drew's “cognitive functioning, language and reading skills, and his social and adaptive abilities.”

Drew attended public school from preschool through 4th grade and received an IEP from the school district each year. In 2nd and 3rd grade, Drew began experiencing behavioral problems in school, such as yelling, crying, and dropping to the floor. These problems became more frequent and severe in 4th grade. Following Drew's behavioral deterioration and lack of academic progress, his parents rejected the IEP proposed for his 5th grade year because it was mostly unchanged from the ineffective 4th grade IEP. Given the school's failure to address Drew's needs, his parents notified the school district that they were withdrawing Drew from the public school and would be seeking tuition reimbursement. They then placed Drew in a private school that specializes in educating children with autism. Drew's placement at his new school was appropriate under the IDEA, and he made “academic, social and behavioral progress” there.

Drew's parent's application for tuition reimbursement from the school district was denied, and they appealed.  Ultimately, the Tenth Circuit Court of Appeals affirmed the denial of the parent's claim, holding that an IEP must be reasonably calculated to guarantee “some” educational benefit, which it interpreted to be any educational benefit that is “more than de minimis,” and held that the IEP prepared by the school district provided the educational benefit required by the law.

In their Petition for a Writ of Certiorari to the U.S. Supreme Court, Drew's parents argued that an IEP must be designed to confer a substantial educational benefit to a child with disabilities, a higher standard than that applied by the federal appeals court.  The school district disagreed, arguing that it need only provide a minimal educational benefit. In its forthcoming decision, the Supreme Court is expected to define the level of educational benefit that public schools must provide under the IDEA.

To read the petition asking the U.S. Supreme Court to hear Drew's case, click here.

For additional information concerning special needs trusts and disability planning, visit: http://vanarellilaw.com/special-needs-disability-planning/

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Donald D. Vanarelli, Esq. to Present at the 2016 Elder Law College

Donald D. Vanarelli, Esq. (http://VanarelliLaw.com/) will present at the 2016 Elder Law College given by the New Jersey Institute for Continuing Legal Education on December 14, 2016 at the Crowne Plaza, located at 690 Route 46 East, Fairfield, New Jersey.

Mr. Vanarelli will provide an overview of New Jersey law concerning guardianships and conservatorships. For additional information regarding this event, attorneys may contact the New Jersey Institute for Continuing Legal Education (NJICLE) at 732-214-8500 or visit their website at http://www.njicle.com/.

Don't miss out on this unique opportunity to learn from some of New Jersey's most experienced Elder Law practitioners!

For additional information regarding guardianships, conservatorships and fiduciary services, as well as elder law and estate planning issues, contact the Law Office of Donald D. Vanarelli at 908-232-7400, or visit them online at http://VanarelliLaw.com/.

Download (PDF, 258KB)

Moderator:

Donald M. McHugh, Esq.,CELA, CAP,  McHugh & Macri (East Hanover)

Speakers:

Cathyanne Pisciotta, Esq. Pisciotta & Menasha, LLC (North Brunswick)

Jonathan Bressman, Esq. Law Office of Jonathan Bressman, LLC (Fairfield)

John W. Callinan, Esq., CELA Past Chair of the NJSBA Elder and Disability Law Section Law Office of John W. Callinan (Wall)

Rachel Frett Senior Home Care Services (Morristown)

Linda Ershow-Levenberg, Esq., CELA Fink Rosner Ershow-Levenberg, LLC (Clark)

Lauren Marinaro, Esq. Past Chair of the NJSBA Elder and Disability Law Section Fink Rosner Ershow-Levenberg, LLC (Clark)

Donald D. Vanarelli, Esq. Recipient, Lifetime Achievement Award, NJ State Bar, Elder and Disability Law Section Certified Elder Law Attorney by the ABA-accredited National Elder Law Foundation Past Chair, NJSBA Elder and Disability Law Section Law Offices of Donald D. Vanarelli (Westfield)

Shirley B. Whitenack, Esq. Immediate Past President, National Association of Elder Law Attorneys Past Chair, NJSBA Elder and Disability Law Section Schenck, Price, Smith & King, LLP (Florham Park)

 

About the Program:

Elder Law Practice is one of the top growing areas of the law nationwide. If you are looking for an opportunity to earn CLE credit while brushing up on the latest in Estate Planning and other senior law matters this seminar is for you. America is graying, and more attorneys are being asked to handle issues involving aging clients. This is a growing segment of the population and their issues are unique. In just one day, this novice level seminar will address these issues and provide you with the solid foundation and practical strategies that you need when handling elder law matters. Don't miss out on this extraordinary opportunity to learn from some of New Jersey's most experience Elder Law practitioners!

 

This comprehensive one-day college will provide you with everything you need to confidently handle Elder Law matters in your practice, including:
•	Tax and estate planning strategies
•	Medicaid planning
•	Probate and guardianship mediation and litigation
•	Social security issues
•	Guardianships and conservatorships
•	Special needs trusts
•	The new waiver process under Managed Long Terms Services and Supports (MISTS)
•	Nursing home admissions, discharges and the protected rights of clients
•	Home care options
..and more!

 

CLE Credits:
NJ CLE information: This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 6.7 hours of total CLE credit.
NJ CLE:	This program has been approved for 6.7 credits (50 minute hour)
PA CLE:	5.5 substantive credits pending ($24 fee – separate check payable to NJICLE must be submitted at the end of the program)
NY CLE:	6.5 professional practice credits
CPE:	6.5 taxation credits

Door Registration: $225

Would you like to fax your registration to NJICLE? Click here for PDF registration form.

Group Registrations: Interested in registering a group for this program? Click here for a PDF order form.

About Donald D. Vanarelli 

Recipient of the Marilyn Askin Lifetime Achievement Award from the New Jersey State Bar Association's Elder and Disability Law Section, Donald D. Vanarelli is a Certified Elder Law Attorney, and a member of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys. Mr. Vanarelli is also an Accredited Veterans Attorney and an Accredited Professional Mediator. He has successfully litigated cases in New Jersey's Supreme Court and in federal court. Mr. Vanarelli represents seniors, the disabled and their families in estate planning, financing long-term medical care, nursing home issues, qualifying for Supplemental Security Income, Medicaid and other public benefits, special needs planning, and litigation, including probate, elder abuse and guardianship lawsuits.

About The Law Office of Donald D. Vanarelli 

Located in Westfield, New Jersey, the firm provides a broad range of legal services for seniors, the disabled and their families. The law firm guides clients through complex legal areas including public benefits planning, trial advocacy and court procedures, the administrative process, as well as estate and gift tax laws.

Contact: Ginny Morrissey, The Law Office of Donald D. Vanarelli, Tel: 908-232-7400, Email: gmorrissey@VanarellilLaw.com

For additional information concerning guardianships and fiduciary services, visit: http://vanarellilaw.com/guardianship-fiduciary-services/

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Medicare's Annual Open Enrollment Period Runs From October 15 to December 7. It's Now Time to Reassess Medicare Choices

Medicare's annual open enrollment period runs from October 15 to December 7–the period when enrollees can shop for new coverage. Now is the time to review your options to determine if you should switch plans.

During Medicare's annual open enrollment period, you may (1) enroll in a Medicare Part D (prescription drug) plan; (2) change your Part D prescription drug plan if you currently have a plan; (3)  return to traditional Medicare (Parts A and B) from a Medicare Advantage (Part C, managed care) plan (A Medicare Advantage plan is the managed care alternative to traditional fee-for-service Medicare); (4) enroll in a Medicare Advantage plan; or, (5) change Medicare Advantage plans.

If you're happy with what you have, there's no need to do anything during the annual open enrollment period. However, if you have Part D prescription drug coverage, or are enrolled in Medicare Advantage, there are at least two reasons to shop for new coverage. First, savings. Medicare enrollees who changed coverage between 2013 and 2014 saved $190 annually on their monthly premiums on average, and lowered their annual out-of-pocket limit by $401. Second, changes in formularies. Part D plans routinely change their formularies–the list of medications that are covered–and the rules under which they are covered. The plan also could drop coverage of a medication altogether. Shopping for new coverage during open enrollment period can reveal all formulary changes in Part D plans.

The best online tool for shopping plans is the Medicare Plan Finder at the Medicare website. It eliminates much of the guesswork in navigating plan choices; it allows you to plug in your Medicare number and drugs (you'll need each drug's name and dosage). The tool then displays a list of possible plans likely to meet your needs; their estimated cost, premiums, and deductibles; which drugs are covered; and customer-satisfaction ratings. The finder also will give you advice about drug utilization and restrictions.

Beneficiaries can go to www.medicare.gov or call 1-800-MEDICARE (1-800-633-4227) to make changes in their Medicare prescription drug and health plan coverage.

Here are more resources for navigating Medicare's open enrollment period:

• The 2017 Medicare & You handbook, which all Medicare beneficiaries should have received. The handbook can also be downloaded online at: https://www.medicare.gov/medicare-and-you/medicare-and-you.html or https://www.medicare.gov/pubs/pdf/10050-Medicare-and-You.pdf

• The Medicare Rights Center: www.medicareinteractive.org

• Your State Health Insurance Assistance Program, which offers independent counseling: https://www.shiptacenter.org

• Kiplinger's “How to Compare Medicare Advantage Plans“

• Medicare Plan Finder: www.medicare.gov/find-a-plan

(Based on an article on the ElderLaw Answers website. Donald D. Vanarelli, Esq. is a member of ElderLaw Answers.)  

For additional information concerning NJ elder law and special needs planning visit: http://vanarellilaw.com/legal-services/

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Preliminary Injunction Denied in Lawsuit to Prevent Medicaid Agency from Counting Dead Husband's Assets

A U.S. district court denied a preliminary injunction to a Medicaid applicant who sued New Jersey to prevent the state from denying benefits based on her dead husband's assets. Flade v. Connolly (U.S. Dist. Ct, D. N.J., No. 16-4407, Sept. 23, 2016).

Plaintiff, Eileen Flade, was a nursing home resident. On April 12, 2016, plaintiff applied for Medicaid benefits through the Bergen County Board of Social Services. Soon thereafter, plaintiff's husband passed away. At the time of his death, plaintiff's husband owned assets totaling approximately $70,000. Plaintiff owned less than $1,000. In his will, plaintiff's husband left plaintiff the smallest share of his estate permitted by law, called the “elective share.” The elective share is equal to approximately one-third of the estate. However, plaintiff did not claim the one-third elective share she was legally permitted to pursue in court.

On June 9, 2016, plaintiff's application for Medicaid benefits was denied. The Board of Social Services found that all of her late husband's assets were available to plaintiff, thereby putting her over the resource limit of $2,000 for Medicaid eligibility. After being denied for Medicaid benefits, plaintiff feared being discharged from her nursing facility due to non-payment.

In the following month, July 2016, plaintiff filed a complaint in federal court under 42 U.S.C. § 1983 for violations of the federal Medicaid Act. In August 2016, Plaintiff filed a motion for a preliminary injunction, enjoining defendants from (1) treating the assets of her late husband's estate as a resource that she has access to for her own care, and (2) denying Medicaid during the pendency of the litigation. Defendants opposed the motion, and cross-moved to dismiss plaintiff's complaint. Defendants argued that even if it were true that she did not have access to her husband's assets, plaintiff made gifts during Medicaid's “lookback period.” The lookback period is the 60-month, or 5 year, period during which the Medicaid agency scrutinizes the applicant's assets  to ensure that the applicant did not dispose of or transfer assets for less than fair market value in order to qualify for Medicaid. Gifts made during the lookback period would disqualify plaintiff from receiving Medicaid benefits for a period of time.

The United States District Court for the District of New Jersey denied the motions. The court held that plaintiff did not have access to her late husband's assets and, as a result, plaintiff was reasonably likely to succeed on the merits of her claim supporting an injunction. However, the court refused to enter an injunction directing the state to provide Medicaid during the pendency of the lawsuit. According to the Court, plaintiff failed to 1) demonstrate she would suffer irreparable harm, because she had made lifetime gifts during the 5 year look back period that would result in a penalty period; 2) forcing the state to provide Medicaid during the pendency of litigation but prior to a eligibility determination would harm the State; and 3) it would not be in the public's interest to compel the state to pay Medicaid prematurely .

The case is annexed here – Flade v. Connolly, 2016 WL 5339725 (D.N.J. Sept. 23, 2016) (unpublished)

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“Graduates Timeline” Helps Students with Intellectual and Developmental Disabilities Transition from School to Adulthood

“Graduates Timeline” Helps Students with Intellectual and Developmental Disabilities Transition from School to Adulthood

New Jersey's Division of Developmental Disabilities, an agency within the Department of Human Resources, provides public funding for services and supports that assist New Jersey adults with intellectual and developmental disabilities who are aged 21 and older to live as independently as possible.

The New Jersey Division of Developmental Disabilities recently issued the 2017 Timeline for Graduates Aging Out of the School System, also known as the “Graduates Timeline.” This annual timeline is issued to help students with intellectual and developmental disabilities, and their families in planning for the transition from school to adulthood.

Download (PDF, 359KB)

The Graduates Timeline is annexed here – 2017 Timeline for Graduates Aging Out of the School System

For additional information concerning special needs trusts and disability planning, visit: http://vanarellilaw.com/special-needs-disability-planning/

The post “Graduates Timeline” Helps Students with Intellectual and Developmental Disabilities Transition from School to Adulthood appeared first on Elder Law Attorney NJ | 07090 | 908-232-7400 | NJ Estate Planning Lawyer | The Law Office of Donald D. Vanarelli.

Court Directs Son and His Family to Vacate Mother's Home, Allowing Home to be Sold to Pay for Mother's Care Needs

The plaintiff, Marjorie Fister, is the mother of defendant Kevin Edward Fister. In 2010, the defendant, along with his wife and four adult children, moved into plaintiff's home with her. Mrs. Fister's health declined and, in 2012, she moved into her daughter's New York home. However, the defendant and his family remained in Mrs. Fister's home. Defendant refused a request from his mother, through her attorney, to leave her home so that it could be sold to provide funds for her care at an assisted living facility. He and his family remained in Mrs. Fister's home, residing rent-free.

Therefore, Mrs. Fister filed a complaint for a writ of possession against the defendant and his family. In response, the defendant filed a Chancery Division action claiming that his mother was incapacitated and unable to manage her affairs. In April 2013, the Chancery Division determined that Mrs. Fister was competent, and the defendant's complaint was dismissed. Mrs. Fister filed a motion for summary judgment in February 2014, seeking to eject the defendant and his family from her home.

In the meantime, the defendant also filed a New York complaint for guardianship. That action was successful and, in December 2014, the New York court declared Mrs. Fister incapacitated and appointed Paul Mederos, Esq. as her guardian.

In March 2015, the New Jersey trial court held oral argument on the plaintiff's pending summary judgment motion. During oral argument, the defendant's attorney acknowledged that the defendant had no evidence to document that he had an ownership interest in his mother's home. Mrs. Fister's guardian was present at oral argument, and he advised the court that he had already applied to the New York court for permission to sell Mrs. Fister's home to pay for her care. The New Jersey trial court granted summary judgment to the plaintiff and signed a writ of possession, concluding that the defendant had no ownership interest and no right to continue to live there rent-free. The defendant appealed that decision.

In April 2015, the New York court granted the guardian's request to sell Mrs. Fister's home.

Oral argument on the writ of possession order was held before the New Jersey Superior Court, Appellate Division. At oral argument, the defendant's counsel advised the court that the defendant and his family had vacated Mrs. Fister's home in response to the writ of possession, and conceded to the court that the defendant's appeal was now moot.

The appellate court agreed, and dismissed the appeal.

A copy of Fister v. Fister  can be found here – Fister v. Fister

For additional information concerning nursing home law and litigation, visit: http://vanarellilaw.com/nursing-home-law-litigation/

For additional information concerning probate litigation and will contests, visit: http://vanarellilaw.com/will-contests-probate-litigation-elder-abuse-actions/#iplwc

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Donald D. Vanarelli, Esq. to Present at the Elder & Disability Law Section Roundtable Discussion on Medicaid Appeals

Westfield, NJ – October 6, 2016 - Donald D. Vanarelli, Esq. (http://VanarelliLaw.com/) will participate in the New Jersey State Bar Association's Elder & Disability Law Section Roundtable Discussion on Medicaid Appeals to be held on October 13, 2016 at the New Jersey Law Center in New Brunswick, NJ.

Mr. Vanarelli will present on “Appealing a Final Agency Decision to the Superior Court, Appellate Division,” an overview of the current laws governing the Medicaid appeals process in the administrative forum and state court.

For additional information regarding elder law issues, including Medicaid applications and appeals, contact the Law Office of Donald D. Vanarelli at 908-232-7400, or visit them online at http://VanarelliLaw.com/.

Information about the New Jersey State Bar Association's Elder & Disability Law Section Roundtable Discussion on Medicaid Appeals can be found below:  

New Jersey State Bar Association Elder & Disability Law Section Roundtable Discussion

Medicaid Appeals Thursday, October 13 ∙ 9-11 a.m. New Jersey Law Center, New Brunswick 2.4 CLE credits $29 per person (with CLE credits); $6 per person (without CLE credits)

About the Program

Learn where to file a Medicaid appeal, in state or federal court, when a Medicaid application is denied. Roundtable Coordinator Benjamin J. Menasha Pisciotta & Menasha, LLC Speakers John W. Callinan Law Office of John W. Callinan Daniel J. Jurkovic Law Office of Daniel J. Jurkovic Donald D. Vanarelli Law Office of Donald D. Vanarelli Jane Fearn-Zimmer The Rothkoff Law Group Download the registration form and fax to 732-249-2414, or login to register online. To register by phone, call Member Services 732-249-5000.

For additional information concerning Medicaid applications and appeals, visit: http://vanarellilaw.com/medicaid-applications-medicaid-appeals/

For additional information concerning Medicaid and public benefits planning, visit: http://vanarellilaw.com/medicaid-public-benefits-planning/

The post Donald D. Vanarelli, Esq. to Present at the Elder & Disability Law Section Roundtable Discussion on Medicaid Appeals appeared first on Elder Law Attorney NJ | 07090 | 908-232-7400 | NJ Estate Planning Lawyer | The Law Office of Donald D. Vanarelli.

New Jersey's State Estate Tax To Be Eliminated

New Jersey lawmakers reached an agreement on Friday, September 30^th which, among other things, will phase out New Jersey's state estate tax. The New Jersey estate tax exemption, presently $675,000, will increase to $2 million after January 1, 2017. The estate tax will then be eliminated after January 1, 2018. An official vote on an estate tax phase-out bill is scheduled in the New Jersey legislature for Wednesday, October 5, 2016, and the bill is expected to pass.

In New Jersey, the state's estate tax is levied on any estate valued at more than $675,000.  The $675,000 exempt amount is the lowest estate tax threshold in the nation. The state's estate tax is a tax assessed against the gross value of the estate, and it takes into consideration the value of real estate, businesses, stocks and bonds, savings and checking accounts, motor vehicles, boats - all assets owned by a New Jersey resident at time of death. The federal government also imposes an estate tax that is distinct from New Jersey's estate tax.  However, the threshold for the federal estate tax is much higher than New Jersey's threshold. The 2016 exemption for the federal estate tax is $5.45 million.

New Jersey has two, distinct death taxes-a state estate tax and an inheritance tax. The inheritance tax is imposed on estates worth more than $25,000, but affects only certain heirs. Close relatives, such as the surviving spouse, parents, children and grandchildren, are entirely exempt from the inheritance tax. Thus, close relatives do not pay any state inheritance tax, regardless of the size of the inheritance. Other relatives (such as siblings and their spouses or nieces and nephews) are taxed on inheritances over $25,000. The tax rate starts at 11% and rises to 16%, depending upon the amount inherited. Charities are taxed at a rate of 15% for the first $700,000 and 16% for amounts over that. The New Jersey inheritance tax remains, and has not been eliminated under the recent agreement.

The phase out of the NJ estate tax is part of a larger bill to replenish the state's Transportation Trust Fund. The bill will increase the tax on gasoline to 23 cents per gallon while lowering the sales tax from 7% to 6.875% in 2017 and to 6.625% in 2018. Other items in the bill provide assistance to retirees, veterans and the working poor.

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