May 2019

The MLO Minute, By Caitlin McAndrews, Esq. and Nancy Potter, Esq.

Military service is an enormous sacrifice, and can create many stressors upon a family unit. If the service member is the parent of a child with disabilities, an additional set of concerns must be addressed, and it is absolutely critical that the child receive a fully appropriate special education program. Unlike many other aspects of military service, where the military branch unilaterally decides major personal issues such as housing, rank, or place/base of service, the military family of a child with disabilities enjoys the full measure of rights of civilians to ensure that the child receives a free, appropriate, public education (FAPE). The entitlement to a fully appropriate special education program through the Department of Defense Education Activity (DoDEA) includes children ages three through 21, and it is the responsibility of the DoDEA to ensure that all children with disabilities are properly identified through the “child find process” and that every eligible child receive, as of the first day of school, a fully appropriate Individualized Education Program (IEP) developed through the Case Study Committee or “CSC” which will involve a group of qualified professionals and the military family, together with any outside professionals invited to participate by the family.

In conducting the evaluation process, the CSC will classify the child into one of five categories: Emotional Impairment, Physical Impairment, Communication Impairment, Learning Impairment, or Developmental Delay. Each of these categories have sub-classifications, but the most important consideration is that as with civilian special education programs, the classification of the student does not determine the child’s educational program or placement, rather the child’s individual needs determine both the program and the placement, which must be provided in the least restrictive environment in which the maximum integration with nondisabled children is accomplished. Moreover, if the DoDEA fails to conduct a fully comprehensive evaluation of the child’s entire educational needs, the military family has a right to obtain, at public expense, an Independent Educational Evaluation which the DoDEA must consider in determining the appropriate program of research-based specially designed instruction and related services. Examples of such related services include counseling, social work services, audiology, occupational therapy, physical therapy, speech/language therapy, transportation, psychotherapy, and assistive technology.

Finally, where disagreements exist regarding the program necessary for the student to make meaningful educational progress consistent with the child’s potential, military families enjoy virtually the same special education due process rights as civilian families. It is important to remember that as a student transfers between schools, both DoDEA and traditional public schools, all of these rights follow the student. As with civilian families, McAndrews Law Offices provides free consultations to military families, which can be accomplished by telephone where necessary. In many cases, our firm is able to handle the matter on a contingency basis without charging families hourly fees, since if we prevail in a due process hearing, the DoDEA is responsible for payment of counsel fees. If you are a military family and believe your child’s needs are not being met within the DoDEA special education system, we welcome the opportunity to speak with you in our free consultation.