In August I first brought up the growing trend of insurance companies using ERISA laws to recover from the proceeds of personal injury suits pursued by their own customers against those responsible for the injury. You can read that article here.

I had hoped this would not become a snowballing trend because in many ways it is truly horrible. Unfortunately here I am writing about it again because Wal-Mart recently won an appeal to recover an entire settlement from one of their health insurance customers.

The customer suffered the injury and went through the process and expense to get the settlement, then Wal-Mart comes in after the customer did all the work and makes a claim for reimbursement of medical costs they paid. And to make it worse, they made the claim and were successful against the funds that went into a special needs trust.

Wal-Mart was paid, the attorneys were paid, and the injured person received nothing. If you ever pursue an injury lawsuit be sure your attorney has a plan for how to handle an ERISA reimbursement claim from your health insurer or you could end up with nothing to show for your time and effort at the end of the day.

You can read the full story here.

I came across this story right before I left for vacation and I wanted to highlight it for everyone. Providing for a Special Needs Child describes an interesting conversation between two parents about the unique estate planning issues families with special needs children face.

I am afraid the discussion of providing a secure future in case things do not go according to everyone’s own life plan happens all too infrequently based on the number of conversations I have had myself recently with families unaware of how critical it is to implement a plan to provide quality of life to a special needs child if the unexpected should happen.

What is the plan for educational needs?

Who will pay the medical bills if your child is no longer on your health insurance?

Will your child only survive with the bare minimum from government benefits programs or will you put in place a plan for the same quality of life you would provide?

Update: The original article “Providing for a Special Needs Child” is no longer available from the original site.

The U.S. Supreme Court has affirmed a federal appellate decision allowing the father of a learning-disabled child to seek private school tuition reimbursement from New York City without first giving the city’s public school program a chance to meet the boy’s needs.

Families with special needs children often face difficult decisions about education. In many cases, public schools are either not equipped or trained to provide a satisfactory educational experience for special needs children. Where can you go to get the best for your child?

The Individuals with Disabilities Education Act (IDEA) was originally enacted in Congress in 1975. Significant amendments were added to the law in 1997, including tuition reimbursement provisions for special needs families that can not find a suitable educational experience in their public school system. Over the years there have been numerous cases across the country that have attempted to clarify the parameters of when a family is entitled to reimbursement under the 1997 amendments. As you can imagine, different courts came to different conclusions and interpretations.

Just last week the U.S. Supreme Court jumped into the fray showing an interest in establishing some uniform guidelines. The specific case was an appeal from the federal 2nd Circuit, which includes Connecticut, so the decision is binding for Connecticut cases.

The case (Board of Education v. Tom Freston, 06-637) centers on a 1997 amendment to the Individuals with Disabilities Education Act (IDEA), which requires states provide “free appropriate” public education for students with disabilities. The specific issue is whether that law requires children to first receive “special education and related services” from a public agency before their families pursue reimbursement.

An independent hearing officer ruled in favor of the Frestons, but Southern District of New York Judge George Daniels sided with the city. In a summary order in August 2006, the 2nd Circuit reversed Daniels’ decision, saying it would lead to absurd results.

In the 2nd Circuit opinion, Judge Edward R. Korman, the chief judge of the Eastern District of New York, said the city’s view of the statute would “place the parents of children with disabilities in the untenable position of acquiescing to an inappropriate placement in order to preserve their right to seek reimbursement from the public agency that devised the inappropriate placement.”

Nine days after hearing oral arguments in Board of Education v. Tom F., 06-637, the Court split 4-4, thereby affirming the 2nd U.S. Circuit Court of Appeals’ finding in favor of Mr. Freston — the boy’s father.

In its two-sentence opinion, the Court did not reveal the judges’ individual votes, stating only, “The judgment is affirmed by an equally divided Court. Justice Kennedy took no part in the decision of this case.”

It is a split decision and not a loud endorsement, but if you are a family with a special needs child in Connecticut your case for tuition reimbursement just got stronger.

This issue may be considered again by the U.S. Supreme Court as the split decision did nothing to resolve a split in authority with the 1st Circuit, where an appellate panel ruled that students must first avail themselves of the public school system before their parents seek reimbursement.

The Autism Society of Connecticut is a tremendous resource for families. I recently discovered they maintain a blog with an extensive calendar of events. You can find upcoming support groups, activity events, educational events, training events, research programs, and advocacy projects. They cover the entire state. Check out their site today and get involved.