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Do you need a lawyer?

Lawyers provide advice to families with children who have special needs

Parents of children with special needs often wonder if their children are receiving the services that will most benefit their children. They also want to know how to determine what they are entitled to and how to prepare for the transitions in life. At times, no matter how much information they have, they may need professionals to help guide them.

Navigating the waters
Parents often begin by comparing notes with other parents in similar situations. "A parent who is going through the special education process can be an ally to parents throughout their own process," says Lorraine McGrane, a special education attorney at Poughkeepsie's Stenger, Roberts, Davis & Diamond, LLP. "There are many reasons parents seek out a special education attorney. Parents notice that their child is losing time and needs help. Parents come into the office with an explicit request, say for tuition reimbursement or with a feeling that the last Committee on Special Education (CSE) meeting went poorly, and they are not sure what to do about it. An attorney can help the parent understand and claim their child's educational rights."

Never too early to seek assistance
Help is often needed from the early stages of life. Early Intervention Services are available for those with developmental delays from 0-3 years old. According to New York State's Early Intervention website, services include: family education and counseling; home visits and parent support groups; special instruction; speech pathology and audiology occupational therapy; physical therapy; psychological services; service coordination;
nursing services; nutrition services; social work services; vision services and assistive technology devices.

As parents transition from Early Intervention to their local school district, they have to advocate for their child's right to services within the district. Gina L. Carminucci, director of family support & advocacy at Abilities First, Inc. in Poughkeepsie, points to organizations like Abilities First as a way to learn more before bringing in a lawyer.  She suggests the best time for a lawyer in these situations, is after the service is contested and parents have been through an appeal process.

ABCs of the school years
McGrane says attorneys are able to help with many steps in the education process. She lists assistance with CSE meetings, advice and assistance throughout the individualized education program (IEP) process, and 504 meetings, as a few of the more regular services handled by attorneys. She also reminds parents that attorneys can handle all the steps of the process, or just the tasks parents think they need help with. That enables parents to work within their budget.

"I am always looking for a way to work cooperatively with the school district," McGrane says. "Litigation is not always the best way to proceed. I leave litigation for when everything else fails to produce results."

"Going to an attorney does not require hiring the attorney," adds Patricia S. Phelan, a special education lawyer in Rockland County. "While not all attorneys offer this service, much information can be gained from me in the initial consultation I offer parents for a fixed fee. Working with a special education attorney does not require the district to know you hired an attorney. Many times, parents are initially hesitant to let a district know they hired an attorney. Frequently, I work under the radar of districts, assisting parents with drafting correspondence, obtaining private evaluations, preparing for meetings, monitoring their child's performance and documenting evidence to support their case."

Growing up means new needs
Transition from school to adult life is another complicated time for families with children with special needs. Guardianship, trusts, housing, and more become the next set of hurdles to address.

Jessica B. Baumann, director of educational advocacy services at Westchester Independent Living Center and Putnam Independent
Living Services, points to several online sites to learn about Guardianship in New York.

The New York Courts site defines guardianship as "a legal arrangement where a court gives a person the legal right to make decisions for another person who is unable to make decisions for themselves."

For children with disabilities, it is recommended that the process, which can take some time, begin around a child's 17th birthday. The New York Court website explains, "In New York State, when a person becomes 18 years old they are assumed to be legally competent to make decisions for themselves. This means no other person is allowed to make a personal, medical or financial decision for that individual. If a person is 'intellectually disabled or developmentally disabled,' has difficulty making decisions for themselves and over 18 years old, you can ask the Surrogate's Court to appoint a guardian for him or her."

READ MORE: 7 things every parent of a child with special needs must do

Carminucci says that although there are websites to aid parents
to get through the guardianship process, a lawyer can also be quite helpful, especially when the details are more complicated, involving assets for example. "If you have property, that is another situation that parents really need legal guidance on. When that adult child starts to have assets, that could affect their benefits. The parents think they are doing something good by leaving life insurance policies and/or property, and that may not be the case because it may affect their Medicaid. A lawyer can be really beneficial to help protect that."

Throughout all these processes, documentation is always beneficial. Be prepared with doctor and therapist reports, school records, testing,
birth certificates, and observations from teachers.  When creating guardianship, information is also needed about those who will be the guardians. Some of the details needed are name, maiden name and aliases, address, date of birth, and education level.

When it is time to choose a lawyer, parents should talk to those who have already worked with lawyers within the specialized field. Finding a lawyer that fits the family's needs and budget is  key. Is the law firm experienced in special education, guardianship, trusts? Does the lawyer take the time to get to know the special needs child and family? Does the firm grow with the family as needs change, or is the specialization worth changing lawyers later?

"The answer for a parent as to whether there is a need for a special education attorney is much like the answer to, "How does a parent know when they need to put up a nanny-cam in their home?," says Phelan. "My recommendation is, if you have thought you might need it, you probably do!  By the same token, if you are wondering whether you need a special education lawyer, you probably do! Always follow your inner gut!"

Patrice Athanasidy, who lives with her family in Westchester, has written for numerous publications in the tri-state area. She is an adjunct instructor at Manhattan College in the communications department.