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SPECIAL NOTICE

October 23, 2006 UPDATE

Executive Director Tom Kendziorski raised over $14,000.00 for The Arc of Oakland County by running his sixth LaSalle Bank Chicago Marathon on October 22, 2006! He completed the grueling 26.2 mile course in 4 hours, 50 minute and 32 seconds … a “Personal Best” and he was finally able to beat his “5-Hour Demon.” Since beginning the summertime Membership Challenge for The Arc eight years ago (remember the “July Jog at Mackinac Island?”), he has raised over $86,000.00 for this organization!

Before the race and dressed for the cold … Tom is smiling, yet others are not …

Making sure everyone knows why … Tom, along with 40,000 of his closest friends crowd the streets of the Windy City.

Finished, medal in hand to prove it and awaiting a ride home. Brother-in-law, Matt Partyka (left), and son-in-law, Matt Klaver, also endured

everything the Chicago Marathon had to offer!

It was a glorious, albeit cold and windy, fall day for a marathon! Thanks to all those who contributed to the cause.

Wish me luck on my seventh Chicago Marathon run on October 7, 2007!!!!!!!!!!!!!!!

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“A New I.D.E.A.”

by Thomas F. Kendziorski, Esq.

Executive Director, The Arc of Oakland County, Inc.

March 23, 2005

After a long and oftentimes contentious legislative battle, Public Law 108-446, or the “Individuals with Disabilities Education Improvement Act of 2004” (IDEA 2004) was passed by Congress and then signed by President George W. Bush on December 3, 2004. The earlier version, IDEA 1997, remains substantially in place; however this particular re-authorization of the statute contains many new provisions that take effect July 1, 2005. The highlights are:

Highly Qualified Teachers – redefines the education levels and certifications necessary for special educators who teach core academic subjects.

Fixed Fiscal Authorization Levels – specifically sets spending authorizations for the next six fiscal years (e.g., $12.4 billion in FY2005, and increasing each year to $26.1 billion in FY2011), as opposed to annual line-item budget battles.

Performance Goals and Indicators – instead of performance goals and measures established by a State, the new law requires that these be the same as the State’s definition of adequate yearly progress (AYP) for all children under the No Child Left Behind Act (NCLB), which would include a State’s objectives for progress by children with disabilities. Short-term objectives are no longer mandatory, except for those students with significant cognitive impairments taking alternative assessments that measure achievement.

Participation in Assessments – IDEA 2004 makes mandatory that all children with disabilities be included in all State and district-wide assessments, including those under NCLB, with accommodations or alternative assessments if necessary and as included in the child’s individualized education plan (IEP).

Initial Evaluation and Reevaluations – local districts are required to conduct a full and individual initial evaluation of a child before providing special education and related services, and to conduct reevaluations as warranted. School districts must still obtain consent from the parent prior to an initial evaluation, and the evaluations must take place within 60 days. IDEA 2004 no longer requires a mandatory three-year reevaluation, and prohibits reevaluations more frequently than once a year unless the parent and the local district agree.

Transition Planning – the requirement that the IEP contain a statement of “transition service needs” (from school to employment or independent living) now must occur “not later that the first IEP to be in effect when the child is 16.”

The I.E.P. Team and Process

· Members of the IEP team can now be excused from the IEP meeting if the parent and the local school district agree in writing. This would be done if the team member has nothing to do with the topic under discussion. If an absent member’s expertise is needed, the requirement is that it be provided to the parent and other members of the team.

· After the IEP team meeting, parents and the school district may make changes to the IEP via a written document without holding a formal meeting.

· Fifteen States will be allowed to pilot the concept of an optional “three-year IEP” that coincides with the child’s “natural transition points” (e.g., elementary to middle school, middle to high school, etc.).

· Students transferring between school districts within a State must have their IEP’s continued with comparable services until the next IEP is developed and implemented – students transferring between States still must have their IEP’s honored by the receiving district until a new evaluation is completed (if necessary) and a new IEP is developed.

Procedural Safeguards

· Complaints may only be presented for a violation going back two years from the date the parent or school district “knew or should have known” about the alleged action, unless the State has other explicit time limitations or the parent received specific misrepresentations from the school district.

· Notice of the procedural safeguards are now required to be given to parents annually, except where there is an initial evaluation, upon the filing of a written complaint, or when the parent requests a copy.

· Mediation has been around since IDEA 1997, but now those who chose not to participate have another alternative – meeting with a disinterested party who could explain and encourage the use of mediation. Also new is where mediation is used and resolution is obtained, then a legally binding document must be written, signed, and is enforceable in a court of law.

· “Resolution Session” is totally new. This is a requirement prior to a due process hearing. The IEP team must get together within 15 days of a parent providing written notice asking for a due process hearing. The school district cannot have its attorney present unless the parents bring their attorney. This requirement may be waived if the school district and the parents agree to do so in writing, or they agree to use mediation. If the school district has not resolved the problem within 30 days, then the due process hearing can occur with the usual timelines in place. Should the “resolution session” result in agreement between the parties, then a written, legally enforceable document must be executed.

· The qualifications of a hearing officer are now specified and included within the statute.

· The party requesting the due process hearing is not allowed to raise new issues at the hearing that were not raised in the due process complaint notice.

· There is now a 2-year statute of limitations for requesting a due process hearing. Again, two years from the date the parent or the school district “knew or should have known” about the alleged action.

· The party desiring to appeal a local due process hearing to a court of law has 90 days to do so, unless the State has explicit time limits already in place.

· IDEA 2004 will allow for attorney’s fees against a parent for a local/county/state school district where the school district is the prevailing party and the complaint is found to be “frivolous, unreasonable, or without foundation” or where parents’ attorney continues to litigate such a case, or to harass, cause unnecessary delay or increase the cost of litigation; there is also a new provision that prohibits attorney’s fees for the new “resolution session.”

· The revised statute essentially maintains the “stay put” provision, that is, where a student with a disability remains in his or her current educational placement during the pendency of due process proceedings. However, the “stay put” rule may be eliminated when it comes to a student who violates the school code of conduct --- unique circumstances on a case-by-case basis will be the test used by school personnel. An interim alternative placement with educational programming and ancillary-related services must be established by the school district, and that is where the student remains pending due process and any further appeals.

· The manifestation determination rules will experience a major change, that is, the parent will now have the “burden of proof” (preponderance of the evidence) instead of the school district. Prior to this, the school district had to demonstrate that the student’s behavior had no direct and substantial relationship to the disability, and that the student had the ability to control or to understand the impact and consequences of the behavior in order to order a long-term suspension/expulsion.

A lot of technical stuff in this new law to be sure. These are but the highlights. As always, know your rights PRIOR to going to an IEP team meeting.

The Transition of Dual Eligibles

The Risk of Losing Access to Needed Medications

In Transition to Medicare Drug Coverage in 2006

(Information dated June 2005)

Dual eligibles are people who receive both Medicare and Medicaid. There are 6.4 million people who fall into this category. Nearly half a million of them are people with developmental disabilities. Most are receiving both SSI and Social Security benefits. The Medicare Prescription and Modernization Act of 2003 (MMA) will give Medicare beneficiaries (senior citizens and people with disabilities under the age of 65) the opportunity to voluntarily enroll in a private prescription drug plan beginning in January, 2006.

For dual eligibles, the prescription drug coverage that they currently have through Medicaid will end on January 1, 2006. Because dual eligibles already have comprehensive drug coverage through Medicaid, the transition to Medicare drug coverage, and the anticipated differences in the Medicare drug benefit, raises a unique set of challenges. Some dual eligibles could find that drug coverage under the Medicare program is less comprehensive, more costly, or less secure than the coverage they have had under Medicaid.

Many people with cognitive, intellectual and developmental disabilities have complex needs. Switching medications can be risky – new drugs may not be as effective as the medications that they are now taking, or may cause additional side effects. Therefore, it will be important to closely monitor the transition to Medicare prescription drug coverage to ensure that people with cognitive, intellectual, developmental disabilities and other conditions are protected.

How do dual eligibles receive prescription medications now?

Currently, full benefit dual eligibles, who receive Medicare and full Medicaid coverage, receive their prescription coverage through Medicaid. Additionally, some low income Medicare beneficiaries (often a person with an income near or slightly lower than the poverty level of $776/month for a single individual in 2004) do not qualify for full Medicaid benefits but receive Medicaid assistance to pay for Medicare premiums and cost-sharing. These are called partial benefit dual eligibles and, generally, do not get prescription drug coverage under Medicaid.

How will dual eligibles receive prescription drug coverage under the MMA?

On January 1, 2006, federal support for prescription drug coverage for dual eligibles through Medicaid will end; and, dual eligibles will be required to enroll in a Medicare prescription drug plan in order to continue to receive prescription drug coverage. Those who desire prescription drug coverage and do not enroll in a Medicare prescription drug plan on their own will be “auto enrolled.” The Center for Medicare and Medicaid Services (CMS) will begin automatic enrollment of dual eligibles in the fall. Dual eligibles will be enrolled in the plan with lowest premium cost in their area. If the individual finds that the plan does not meet their needs (i.e., their medications are not on the plan formulary or list of approved drugs), CMS will allow them to switch plans. However, the federal assistance with cost-sharing that will be provided to the dual eligibles will only cover the premium for the lowest cost plan. The regulations also require prescription drug plans to have transition processes to help dual eligibles and other enrollees to transfer from existing coverage. CMS will be offering guidance on this requirement in the near future. Individuals will be allowed to request exceptions to the formulary and appeal plan decisions.

Will dual eligibles continue to receive other services through Medicaid?

Yes, after January 1, 2006, dual eligibles will still have Medicaid benefits for other health care expenses, such as coverage for long care services and supports and assistance in paying Medicare premiums and cost sharing.

How will the new Medicare prescription drug benefit differ from the current Medicaid prescription drug benefit?

The Medicare prescription drug law creates a new program called the Part D Program. Currently, the Part A Program provides hospital coverage, Part B provides coverage for physician and primary care services, and Part C (called Medicare Advantage formerly Medicare + Choice) allows individuals to voluntarily enroll in a managed care plan. Under the MMA, Medicare beneficiaries will be given the opportunity to enroll in a private prescription drug plan (called PDP). They will be guaranteed a choice of at least two plans. If there are not two plans available in each region or community, the federal government will step in and set up a “fallback plan” to ensure that Medicare beneficiaries are able to purchase prescription drug coverage.

In deciding what drugs to cover, PDPs will be permitted to have a formulary. Unlike Medicaid, however, Medicare permits formularies to be more restrictive. Under Medicaid, a person can get virtually all FDA approved drugs when they are medically necessary. For some drugs, often high cost drugs or drugs subject to misuse, Medicaid can require preauthorization to insure that the drug is medically necessary. However, beneficiaries have a legal right to access all medically necessary drugs. By contrast, under Medicare, a plan could limit access to those drugs that are on the formulary, and a beneficiary could be denied drugs that are not on the formulary without regard to medical needs.

Will dual eligibles be required to pay more than they do now for prescription drugs?

Under the MMA, persons residing in institutions will continue to be exempt from paying cost-sharing. Dual eligibles living in the community, however, will be required to pay a co-payment for every prescription medication that is provided on the plan’s formulary. For dual eligibles with incomes below the federal poverty level, the co-payment will be $1 for each preferred drug and $3 for each non-preferred drug. For dual eligibles with incomes above the poverty level, the co-payment for preferred drugs will be $2, and non-preferred drugs, $5. The amounts will increase every year as medical costs increase. Additionally, beneficiary costs could increase greatly if they have to purchase drugs on their own because the drugs that they need are not on the formulary of the Medicare PDP. People may also have to pay the differences in the premium costs if they chose a more expensive plan that offers better coverage for their medication(s).

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