The Legal Framework of Special Education

By Capt. Fox Whitworth, Fort Bliss Legal Assistance Office  

The Army’s Legal Assistance Program has been required to provide assistance in the area of special education law since the beginning of 2021. This is just one of the many ways the Army has expanded and implemented the “People First” ethos, ensuring that “People” encompasses not only service members but also their dependents.

This assistance is not meant to replace the assistance offered by the Fort Bliss Exceptional Family Member Program, but rather to complement and build upon it. The EFMP should still be the first point of contact for identification and enrollment issues and continues to be the program that screens service members and their dependents to ensure their needs can be met at their projected duty station. The EFMP’s trained case workers can then assist incoming families in terms of finding and getting them into the right programs. Where the Fort Bliss Legal Assistance Office comes into play is once the family has arrived and is enrolled, or in the process of enrolling, in local schools.

Special Education law is founded on a federal law called the Individuals with Disabilities Education Act, which preserves the rights of students with disabilities and their caretakers to receive services and support customized to the student’s unique individual needs. This can include services such as occupation and physical therapy, speech-language pathologists, dyslexia instruction, and many others. Additionally, changes to the school disciplinary process are often made to accommodate children with special educational needs.

The fact that special education law is federal law gives it a degree of standardization across the country, which is especially important for our military children as they move around the country. However, all States will also have their own individual special education laws that build upon and implement the requirements of the IDEA. The Department of Education has recognized that there is a category of children they refer to as “highly mobile children,” which includes military children, and has asked the individual States to pay special attention to children in this category of special educational needs to ensure that their frequent moves do not delay the provision of services.

If a child requires special education services, these services, along with information about the child and their unique needs, will be documented in an Individualized Education Program. These are sometimes also called Individualized Education Plans. IEPs are binding on the school and must be followed. If a child with an IEP already in place moves schools, the new school must follow the IEP in place until they either adopt that IEP as is or create a new one. This can become more complicated when the move is between States or takes place during the summer.

If a child does not have an IEP, but may be eligible for special education services, the process in Texas begins with a referral. A referral is legally required if a public school believes the child may have a disability that requires services. Alternatively, the process can begin if the parent makes a request. This should be done in writing to the school’s designated staff member representative, and the school must respond to a request in writing within 15 school days indicating whether they will seek an evaluation.

If the decision is made to go ahead with an evaluation, the child’s parent must consent. The evaluation will be performed by specially trained personnel, and the consent being granted is what starts the clock for the evaluation to be completed. Generally, evaluations must be completed within 45 school days of the consent being given.

The evaluation, formally called a Full Individual and Initial Evaluation, is a written report of both information and recommendations, and must include participation by professionals with training in the disability, or disabilities, the child is suspected to have. The evaluation is free and if the parent disagrees with it, they may ask for an Independent Educational Evaluation which must be done by someone not employed by the school.

After the evaluation is complete, an Admission, Review, and Dismissal Committee generally has 30 calendar days to determine whether the child is eligible based on the evaluation and, if they are eligible, create the IEP. The ARD committee is a team made up of the parents, teachers, school administrators, and special education professionals with training in any disabilities identified by the evaluation.

Once services are in place, the parent will receive regular progress updates on the IEP goals. The IEP should be reviewed at least annually by the ARD committee, and the ARD committee will consider whether an updated evaluation is necessary at least every three years. A parent can ask for a meeting of the ARD committee at any time and can also revoke consent for special education services in writing at any time.

The ARD committee is meant to be a cooperative group, all working together to figure out what is best for the child. Ideally, parents will be active participants, and everyone will be able to find common ground. Sometimes, however, this isn’t the case and that’s when the Fort Bliss Legal Assistance Office can help.

Should a parent disagree with the other members of the ARD committee, or believe the school is not complying with special education law, Texas has several procedural safeguards in place. These include mediation, due process hearings, and a special complaint resolution process through the Texas Education Agency. A Fort Bliss Legal Assistance Attorney can help the parent decide which route would be best for their situation and can help them communicate with the school and outside agencies to resolve their situation in the way that is the best for their child.

Even before anything goes wrong, though, a consultation with a Fort Bliss Legal Assistance Attorney can help a parent navigate the special education process, understand what will be coming, and prepare for the challenges inherent in a PCS when there is an IEP already in place.

To speak to an attorney on this subject, or any other topic, please schedule an appointment with the Fort Bliss Legal Assistance Office. Appointments may be made via email at usarmy.bliss.hqda-otjag.mesg.bliss-legal-assistance-office@army.mil, or via phone at (915) 568-7141 during business hours.