Seattle Disability Law

A PUBLICATION OF THE LAW OFFICES OF LARRY A. JONES
MARCH 2009

Tax Time!!!

Here are some brief hints about the special IRS tax questions that we get from our clients. Check out the details with your tax preparer or online at www.irs.gov.

Filing. Make sure you file! If a person with disabilities works, but has low income, they may be eligible for an earned income tax credit and get money back. (For more details on the earned income tax credit, see the January 2008 Newsletter in the Archives section of our website.) Furthermore, there could be another government stimulus payment to taxpayers, but only if you file!

Dependency status. Whether you can claim an exemption for a person is a 5 part test applied by the IRS. In the simplest situation, of a son or daughter living at home with a parent, that person can be deducted on the parent’s 1040 even if the child is an adult, as long as the parent provides over half of their total support during the year

Trusts. Remember that an irrevocable trust is a separate taxpayer from the person who is its beneficiary and the trustee needs to file a separate tax form called Form1041. Almost all trusts drafted at our law firm are irrevocable trusts.

Qualified disability trusts. If a person with disabilities has a trust to qualify for Medicaid that has a “payback” provision at his or her death, such a trust (also called an OBRA or d4A trust) is a qualified disability trust which has a much larger exclusion from income than other trusts.

IS YOUR TRUST ACCOUNT FDIC INSURED?

During the current financial crisis, clients have asked about government guarantees on the money in trust accounts. An individual’s own account at most banks is FDIC insured for $250,000. The same is trust for the irrevocable trust accounts created through our law firm. It is not $500,000 as some local bank employees have stated. (The reason for the confusion is among the most common trusts, especially in other states, are revocable trusts in which there is separate insurance for each individual spouse-trustee.)

Does your child's IEP seem lacking?

The Individuals with Disabilities Education Act (IDEA) is a powerful federal law for students who need special education. The law requires that a school district provide each child with a disability with a free and appropriate education (FAPE). In order to provide FAPE, a school district must develop an individualized educational program (IEP) that is "reasonably calculated to confer educational benefit" for the child. The IEP should contain information about current levels of functioning as well as measurable goals for the future.

Is your child's IEP not being implemented?

Sometimes the IEP looks good on paper but is not being implemented properly. For example, the IEP may say that the student should receive a certain therapy twice per week, but in reality the child is receiving it once per week.

Is your child getting enough benefits from mainstreaming?

The law contains important requirements about educating students in the least restrictive environment (LRE) appropriate for the student. This means educating students with their non-disabled peers to the maximum extent appropriate. The 9th Circuit court (the appellate federal court covering Washington state) has stated that four factors should be considered when deciding what the LRE is for a student: 1) the academic benefits to the child; 2) the non-academic benefits to the child; 3) the impact on the other students and the teacher; and 4) cost.

The IDEA also contains safeguards for children with behavioral problems. If a child's behavior is caused by his or her disability, he or she cannot be excluded from school for more than 10 school days total over the entire school year (unless a child has brought a weapon or drugs to school or caused another person "serious bodily injury"). On the 11th day of exclusion, special education services must be resumed, a team meeting called to determine whether the disability is related to the behavior, and a functional behavioral analysis or behavior intervention plan designed or modified.

Is the district following proper procedures?

The law contains detailed requirements about the evaluation process, as well as specific requirements about notice, parental consent, and parental participation.

Where can I find good IDEA resources?

If you would like to view a brief Power Point about the highlights of this law, you can see it on our website, www.seattledisabilitylaw.com. In addition, the Office of the Education Ombudsman has many helpful publications on its website, www.waparentslearn.org. The attorneys at our firm can also consult with you about educational issues. We can review your child's IEP, discuss possible solutions to problems, or explain the parameters of the law.

TECHNOLOGY: OPPORTUNITIES & DANGERS

You already know that new technologies are all around us, linking us to other people and to our jobs, banks and physicians as never before. What you may not know are the special opportunities and dangers these hold for persons with intellectual and other developmental disabilities.

CELL PHONES

Cell phones are a very helpful device for some users with disabilities who have learned to operate them to keep in touch with family. If you get lost on the bus in a strange neighborhood, it’s a great thing to easily call for help. And other people can find you, too, if you have forgotten something.

But clients have bad experiences, too. For example, one young man loaned his cell phone to his friends, who abused the privilege. Other persons endlessly re-dialed the same number, again and again, to hear the recorded message. That really drove the monthly charges up.

T-Mobile, Verizon, ATT and other plans allow you to sign up for a pre-paid “pay as you go” plan that can limit risk. You can often work with a provider to block calls during late night hours, if those are a problem, or to block text-messaging, if that is desirable. Under your plan you may be able to block text-messaging to avoid charges on in-coming calls by spammers. You may also be able to limit calls to only certain telephone numbers. Not having to worry about overage charges is a great relief to the bill-payer, however, it does mean that you may run out of minutes at an inopportune time. Rest assured that when you run out of paid minutes, “go phones” will still dial 911 in an emergency.

ATMs, DEBIT CARDS, etc.

For simplicity, there is nothing like carrying a small amount of cash around. But when a person has learned how to deal with somewhat larger amounts, a credit card may seem tempting, too. Unfortunately, credit cards have often have limits that are too high and are hard to understand for a person just learning the value of money. In that situation, debit cards or ATMs can work better, because they can limit the amount spent to the amount available. If that is what you want, be sure to check to see that there are no overdrafts allowed. Some cards essentially turn into credit cards when an overdraft is made. And, of course, don’t rely on the oral or online sales pitch, until you see it in writing that no overdrafts are allowed.

LIABILITY

A child under 18 or an older person under a full guardianship will not be able to validly sign a contract for a cell phone or a credit or debit card. The parent or guardian will have no liability for those charges – unless they got the phone themselves, thereby facilitating the misuse. In that case, there may be liability.

A person who has no money, except Supplemental Security Income or Social Security disability income, is usually judgment-proof. That means the company cannot collect against that person. However, judgments can be enforced years later, so if the person with disabilities might start working and drawing wages, then, for example, a previous judgment for unpaid credit card debt could come back to haunt him or her.

EMAIL US

Send us your experience – good or bad -- with cell phones, ATMs, debit or credit cards. We will share what we learn with our other clients. You can email Larry at lawjones@oz.net.

our firm from left to right: christine thompson ibrahim, shawna julia, larry jones, elizabeth brownhill, and jeanette stengel.