Special Education
1.
Most young people with developmental disabilities (autism, CP, intellectual impairments) will get ancillary services, (OT, PT, Speech) through their IEP.
Many young people with mental illness and emotional disabilities will have to fight harder with the special ed. system to get educational accommodations, and will often need advocacy in the context of school disciplinary measures (suspensions and expulsions). Do not forget that school discipline often is a symptom of severe disabilities, for which the student should be eligible for reasonable accommodation. Make appropriate referrals to special ed. attorneys when necessary. Recognize that, increasingly, schools seem to be pushing to graduate students who would benefit from extra years of special education, (some up to age 26), mostly for financial reasons, or graduation rate pressures.
Transition to Adult Services
2.
Sometimes parents are lulled into a false sense of security while their child is in special ed., not realizing that they will have to learn the ins and outs of the adult service system sooner than they think. Many schools are not doing what they should be doing, through transition planning, to connect the student to future adult services. You have the right to ask for assistance from Michigan Rehab Services or the Community Mental Health system in your transition plan, to help smooth the transition from school services to adult services.
Turning Age 18
3.
At age 18, students (even those who are living with parents) can qualify for disability benefits through the Social Security Administration. (SSA).
Remember that SSA should determine if you are eligible for SSI Disability
(SSI) and/or Social Security Disability Insurance (SSDI). It is frustrating for many families that SSA does not explain the difference between these two programs, and often sends a denial of SSDI to an 18 year old. This sends many families into a panic. Remember, however, that an initial denial of
Daniel L. Blauw, PLC, Rev. July 2015

SSDI is often based upon not having paid enough FICA taxes into their system. Someone who is denied SSDI will often still get an approval letter from the SSI program shortly after the initial SSDI denial. What adds to the confusion is the fact that there are two separate sets of workers under one roof at SSA, and the SSI workers often do not coordinate very well with the
SSDI workers in the same building.
Medicaid Is Needed
4.
A common mistake by some families and their attorneys is to assume that if they have relatively high family resources, or if they are on SSDI (not needs based), they do not have to worry about keeping the assets of the person with disabilities below the $2000 asset limit. Never forget that the CMH system is funded almost entirely by Medicaid, so you still must learn and comply with Medicaid financial rules. Even people who are getting SSDI based upon the work record of a retired or deceased parent (DAC status) must keep countable assets below $2000 in order to get the CMH services they need. Very few families are rich enough to pay privately for work services, housing services and specialized therapies. And, even if they could afford it, there are often no private providers of these services. They need
CMH.
Do Not Delay on Applying for SSI
5.
Sometimes families unknowingly hurt their child’s chances of receiving full
Medicaid in the future by failing to apply for SSI at age 18, or while their parent is still working. This is due to the fact that, if they are not on
SSI/Medicaid early, and then get SSDI later, they may not qualify for DAC status (Disabled Adult Child status) later. If they do not preserve that DAC status, they will have to meet a monthly income spend-down each month before their Medicaid-funded benefits (including Home Help benefits) will be available each month. Attorneys should warn families that a failure to apply for SSI at age 18 could cost them tens of thousands of dollars later in life, possibly at a time when they are trying to move toward greater independence from their parents’ resources.
Daniel L. Blauw, PLC, Rev. July 2015

Development of Good Supportive Housing Takes Advance Planning
6.
The number one question on the minds of most families doing special needs planning is: What will happen to my child when I can no longer be at the center of their daily life? They often just assume their child will be a
‘ward of the state’ and he or she will be cared for in a ‘group home’. There is no such thing as an automatic ‘ward of the state’, (which is good), but when they learn this, they often get very worried about the future for their child. Fortunately, they are somewhat reassured to learn that CMH must assist with Individual Plans of Service (IPSs) under the mental health code.
But, later they find it disconcerting when they see that the housing expertise on the part of CMH “supports coordinators” (social workers) is spotty, and sometimes nonexistent. It is important for attorneys and advocates to call for Individual Plans of Service that will help the persons make meaningful choices (i.e., self-determination). Every CMH system should run a housing support clearinghouse of information so families and advocates can explore housing options and make meaningful choices.
Unfortunately, many CMHs do not have an organized clearinghouse function, and they need to be pushed to create this type of information clearinghouse service in their respective localities.
Explore Supportive Housing Options
7.
Do not forget that there are at least four ways to hold real estate for the benefit of a person with disabilities. The person with disabilities can own a
‘homestead’ (their primary residence) without jeopardizing their public benefits; or the family can own it; a trust can own it; or a nonprofit corporation can own it and rent it to the person with disabilities. There are
Pros and Cons for each option. Seek out expert advice from an experienced housing advocate or a housing clearinghouse in your area.
Learn the SSA Work Rules
8.
Many families mistakenly assume that in order to stay on benefits their adult child with disabilities is not allowed to earn wages. They are often confused about the work rules for persons getting SSI benefits and SSDI benefits. Remember that a young person with no significant past work,
Daniel L. Blauw, PLC, Rev. July 2015

(and parents who are not yet retired, disabled or deceased), will probably get SSI Disability benefits first from SSA, and that they can work in supported employment and still get these benefits. Generally speaking, the
SSI recipient receives a dollar less in SSI for every two dollars earned from a job. However, the work rules for someone on SSDI are quite different – generally an ‘all or nothing’ determination – so that you need to know the earnings limit called the Substantial Gainful Activity (SGA) limit. ($1090 in
2015). If a person’s earnings from a job stay above SGA after the Trial Work
Period runs out, they can lose all SSDI benefits.
Special Needs Trusts – Whose money will fund the trust?
9.
One of the key tools for keeping a person’s countable assets below the
$2000 asset limit is a Special Needs Trust (SNT), sometimes called a
Supplemental Care Trust. The most important question a trust attorney should ask the family is: Whose money needs to be sheltered? If it is family money they can use a ‘third party’ SNT which is not required to give any remainder to the state when the person dies. If it is money that already belongs to the person with disabilities (retro SSA benefits, savings in the name of the person with disabilities, proceeds from the settlement of a lawsuit, money won in the lottery, etc.) you must use a ‘first party’ SNT.
Also, remember that there are two types of first party SNTs: an Individual
Trust that includes a Medicaid payback provision and a Pooled Trust that has been set up by a nonprofit corporation. Generally, the planning attorney will lean toward an individualized trust when the corpus is larger
(over $100,000); and will lean toward joining a Pooled Trust when the corpus is smaller, (or no suitable individual trustee can be found).
CMH Service Rationing is Here
10.
Watch out for a changing Community Mental Health (CMH) system! There is a troubling trend starting to spread through the CMH system, whereby they are reducing services to those most in need. Notwithstanding the provision in the Mental Health Code giving priority to the neediest first, just in the past year or so, CMHs have begun to attempt to ration services in new ways. For example, they are determining that work services are no longer available to the high need consumer under their new interpretation
Daniel L. Blauw, PLC, Rev. July 2015

of Medicaid rules. For many people with severe impairments day programing is being reduced from 5 to 3 days per week. CMHs are also creating ‘tiers of funding’ supposedly based upon medical need. The problem is that the CMH system has social workers scoring the need based upon the money they have available, not the actual need of the person.
They claim they have an objective numerical scoring system, but it seems to the outside observer that the social workers or behavior therapists are being directed by supervisors to make the score lower so they will drop to a lower tier of funding. It is very difficult to win these cases in a Medicaid
Fair Hearing because the Administrative Law Judges seem to give deference to the administrators who do the subjective scoring. Evidence of medical necessity from doctors and therapists outside the CMH system seems to be discounted or ignored. See the Key Mental Health Code provisions in
Appendix A for legal authority to fight illegal rationing.
Feel free to contact us!
Daniel L. Blauw, PLC
Attorneys and Counselors at Law
2020 Raybrook SE, #204A
Grand Rapids, MI 49546 www.blauwkirkpatricklaw.com
Daniel L. Blauw
(616) 336-5098; (616) 459-6792 (fax) danblauw@iserv.net
Sarah L. Kirkpatrick
(616) 719-0465; (616) 459-6792 (fax) sarah_kirkpatrick@comcast.net
Daniel L. Blauw, PLC, Rev. July 2015

Appendix A
Key Mental Health Code Provisions for the Attorney Seeking to Help Families Obtain Better Services
330.1100a Definitions; A to E.
(25) "Developmental disability " means either of the following:
(a) If applied to an individual older than 5 years of age, a severe, chronic condition that meets all of the following requirements:
(i) Is attributable to a mental or physical impairment or a combination of mental and physical impairments.
(ii) Is manifested before the individual is 22 years old.
(iii) Is likely to continue indefinitely.
(iv) Results in substantial functional limitations in 3 or more of the following areas of major life activity:
(A) Self-care.
(B) Receptive and expressive language.
(C) Learning.
(D) Mobility.
(E) Self-direction.
(F) Capacity for independent living.
(G) Economic self-sufficiency.
(v) Reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are of lifelong or extended duration and are individually planned and coordinated.
(b) If applied to a minor from birth to 5 years of age, a substantial developmental delay or a specific congenital or acquired condition with a high probability of resulting in developmental disability as defined in subdivision (a) if services are not provided.
330.1116 Powers and duties of department .
Sec. 116. (1) Consistent with section 51 of article IV of the state constitution of 1963, which declares that the health of the people of the state is a matter of primary public concern, and as required by section 8 of article VIII of the state constitution of 1963, which declares that services for the care, treatment, education, or rehabilitation of those who are seriously mentally disabled shall always be fostered and supported, the department shall continually and diligently endeavor to ensure that adequate and appropriate mental health services are available to all citizens throughout the state. To this end, the department shall have the general powers and duties described in this section.
(2) The department shall do all of the following:
(a) Direct services to individuals who have a serious mental illness, developmental disability, or serious emotional disturbance. The department shall give priority to the following services:
( i ) Services for individuals with the most severe forms of serious mental illness, serious emotional disturbance, or developmental disability.
Daniel L. Blauw, PLC, Rev. July 2015

330.1708 Suitable services; treatment environment; setting; rights .
Sec. 708. (1) A recipient shall receive mental health services suited to his or her condition.
(2) Mental health services shall be provided in a safe, sanitary, and humane treatment environment.
(3) Mental health services shall be offered in the least restrictive setting that is appropriate and available.
330.1711 Rights of family members .
Sec. 711. Family members of recipients shall be treated with dignity and respect. They shall be given an opportunity to provide information to the treating professionals. They shall also be provided an opportunity to request and receive educational information about the nature of disorders, medications and their side effects, available support services, advocacy and support groups, financial assistance and coping strategies.
330.1712 Individualized written plan of services.
Sec. 712. (1) The responsible mental health agency for each recipient shall ensure that a person-centered planning process is used to develop a written individual plan of services in partnership with the recipient . A preliminary plan shall be developed within 7 days of the commencement of services or, if an individual is hospitalized for less than 7 days, before discharge or release. The individual plan of services shall consist of a treatment plan, a support plan, or both. A treatment plan shall establish meaningful and measurable goals with the recipient. The individual plan of services shall address, as either desired or required by the recipient, the recipient's need for food, shelter, clothing, health care, employment opportunities, educational opportunities, legal services, transportation, and recreation. The plan shall be kept current and shall be modified when indicated. The individual in charge of implementing the plan of services shall be designated in the plan.
(2) If a recipient is not satisfied with his or her individual plan of services, the recipient, the person authorized by the recipient to make decisions regarding the individual plan of services, the guardian of the recipient, or the parent of a minor recipient may make a request for review to the designated individual in charge of implementing the plan. The review shall be completed within 30 days and shall be carried out in a manner approved by the appropriate governing body.
(3) An individual chosen or required by the recipient may be excluded from participation in the planning process only if inclusion of that individual would constitute a substantial risk of physical or emotional harm to the recipient or substantial disruption of the planning process. Justification for an individual's exclusion shall be documented in the case record.
Daniel L. Blauw, PLC, Rev. July 2015