March 26, 2013 12:52 pm Published by QSAC
by Andrew M. Cohen, Esq.
In previous articles, I have written about the importance of a Supplemental Needs Trust and, more specifically, how it enables a person with a disability to have money and assets accumulated for him/her (typically managed by a family member or friend) without affecting or jeopardizing eligibility for means based public benefits such as SSI and Medicaid.
An all too common scenario arises when a relative (typically a grandparent) – with the best of intentions to aid a family member with special needs – establishes an Irrevocable Trust which would be considered a resource for the disabled beneficiary and thus preclude that person from receiving public benefits. An Irrevocable Trust is, by its terms, typically unable to be altered, modified or changed.
In 2011, New York’s “decanting” statute was expanded and, as a result, provides a welcome relief for the scenario described. Decanting is defined as pouring or transferring from one vessel to another. This process is most commonly associated with wine, where the liquid is moved from its original bottle to another vessel, to allow it to aerate or breathe. Under New York’s decanting law, when the right facts and circumstances are presented, a Trustee of an Irrevocable Trust is permitted to take the assets from the original trust and move them to a new trust with new provisions to meet the needs of the beneficiary.
In the case scenario above, the “grandparent” trust would be invaded and the assets moved to the new or “appointed” trust which complies with New York’s Supplemental Needs Trust Law (EPTL 7-1.12). As a result of decanting the prior trust, a disabled individual who would have been barred from Medicaid and its wide range of services and programs due to financial constraints resulting from the terms of the original trust, would now qualify for the much needed benefits. Once decanting has been completed, the corpus of the new trust would be able to provide the disabled individual with goods and services not covered by the government – such as clothing, furniture, electronics, etc. – to further enhance the quality of his/her life while remaining eligible for public benefits.
Under the decanting law, certain procedural safeguards (notice provisions) must be met. Further, a Trustee who seeks to use this recently created power must be cautious of some unanticipated tax ramifications of modifying the original trust.
The New York decanting statute has become a model law for several states and provides a broad and flexible platform to remedy a circumstance that could otherwise have a significant and detrimental effect on a disabled individual.
March 25, 2013 7:57 pm Published by QSAC
Andrew M. Cohen, Esq. is the principal of the Law Offices of Andrew M. Cohen. The firm concentrates in the areas of Trusts & Estates, Guardianships, Elder Law and Estate Planning, with an emphasis on planning for special needs families and disabled persons. Mr. Cohen has a Juris Doctorate and an L.L.M. in Taxation. The firm’s offices are located in Garden City and mid-town Manhattan and can be reached at (516)-877-0595 or www.amcohenlaw.com.
In March 2013, the Centers for Disease Control and Prevention (CDC) announced that autism diagnosis rates were now one in fifty school-aged children based on a new study conducted by the CDC. The CDC’s full report is available online at http://go.qsac.com/cdc2013.
Commenting on the new statistics, Gary Maffei, QSAC’s Executive Director said, “These statistics demonstrate the importance of providing person-centered services for children and adults with autism. QSAC remains steadfast in its commitment to ensuring that all children have access to meaningful programs and services.”
March 18, 2013 12:15 pm Published by Francisco Monegro, Ph.D., M.D.
Behavioral intervention specialists have been using functional behavior assessment (FBA) to identify the consequences that maintaining challenging behaviors and modify them to encourage appropriate behaviors (“consequence-based intervention.”) The role of the consequences to increase appropriate behaviors and decrease maladaptive behaviors has been widely demonstrated in the literature (Iwata, et.al, 1994; Paclawskyj, et.al 2000).
New attention is being focused also on the influence of antecedent variables (“antecedent-based intervention”) on severe problematic behaviors (e.g. self-injurious behaviors, physical aggression, property destruction, and elopement) (Lennox, et, al, 1988). According to Iwata (1997), the antecedent variables may include processes as discrimination, deprivation and satiation, emotional state, and aversive stimulation. “Antecedent-based interventions,” in contrast to “consequence-based intervention,” use a series of techniques, which are implemented before the occurrence of challenging behaviors to reduce the probability of these behaviors. (Luiselli, 2006). These interventions have been associated with reductions in presentation of challenging behaviors and they have become a foundation of the positive behavior support approach (Carr et al., 2002).
Machalicek and colleague (2007) reviewed 10 research studies using “antecedent-based interventions” and each of these studies reported positive results. By using antecedent intervention strategies prior the exhibition of the challenging behaviors, we can influence the challenging behavior and prevent its occurrence.
The following are antecedent interventions techniques that can be used to control or prevent challenging behaviors:
1. Providing choices: Providing choices allows the individual with autism spectrum disorder to feel empowered and in control of their environment and gives the sense of self-determination.
2. Changing the physical environment: This intervention stems from the understanding that extreme temperature, loud noise, rigid schedules, lack of privacy, hunger, limited accessibility, positioning, boredom, may influence challenging behaviors.
3. Modifying activities/routines
4. Non-contingent reinforcement (NCR). There is a notion that individuals act out behaviors to attain a reinforcing factor. Take for example of an individual who is constantly engaging in challenging behavior for attention. Through this technique, we can “flip” the situation by giving the individual attention throughout the day at scheduled intervals.
5. Scheduling: Many individuals with autism spectrum disorder become anxious when they do not know what to expect. Implementing a predictable daily schedule often, helps calm the individual. There are several forms of activity schedules, the most famous consisting of line drawings or photographs with Velcro on the back.
6. Functional Communication Training (FCT). Many individuals with autism spectrum disorder (ASD) are easily frustrated because they cannot communicate their needs and feelings appropriately. Language deficits are common within the ASD population as the development of language and communication may be slow to mature, idiosyncratic, or odd. Using augmentative or assistive technology, Picture Exchange Communication System (PECS), teaching relaxation, alternative replacement behaviors may influence the behavioral presentation (O’Reilly, et. al 2012).
1. Antecedent Exercise: Some research studies have demonstrated the efficacy of antecedent exercise for reducing severe challenging behaviors such as stereotypical behaviors, self-injurious behaviors and aggression ((Bachman & Sluyter, 1988; Bachman & Fuqua, 1983; Baumeister & MacLean, 1984; McGimsey & Favell, 1988).
2. Social Stories: A social story is a short simple story written from the perspective of the individual that provides instruction on positive, appropriate social behaviors (Gray & Garand, 1993). According to Kern (2010), social stories are more effective when addressing inappropriate behaviors than when teaching social skills.
3. Video Modeling: Video modeling is an antecedent-based intervention in which a behavior intervention specialist shows a video of desired behaviors or interactions to an individual or small group of individuals. Video modeling and video self-modeling are both effective means of providing a visual representation of a desired behavior or skill (Sherer et al., 2001).
4. Self-management: It refers to actions purposefully taken by individuals to change or maintain their behavior (Shapiro & Cole, 1994). It represents some skills or behaviors that individuals can engage in to become more self-contained. Self-management has proved effective in development alternative replacement behaviors (Peacock, et.al 2010).
March 12, 2013 8:55 pm Published by Kristen DuMoulin, Ph.D.
A recent study in the journal, Pediatrics, examined the prevalence and predictors of language development in children with autism spectrum disorder (ASD) and severe language delay. Researchers examined information from 535 children with ASD who were between 8-17 years old and who did not develop phrase speech before 4 years old. At age 4, language delays ranged from not speaking at all to using single words or phrases without verbs. They found that more than half of these children acquired language skills. A total of 372 children (70%) eventually attained phrase speech and 253 children (47%) attained fluent speech. Additionally, higher nonverbal IQ and less social impairment were both independently associated with the acquisition of phrase and fluent speech. Interestingly, stereotyped behavior/repetitive interests and sensory interests were not associated with delayed speech acquisition. This suggests that core abilities, such as nonverbal intelligence and social engagement, have a greater influence on the development of communication than other behaviors associated with ASD, such as repetitive and sensory behaviors. These findings may offer hope to families who are concerned about their child’s language delay. It also highlights the importance of evaluating and considering nonverbal skills, both cognitive and social, when developing interventions and setting goals for language development.