LAMP Feature

Legal Issues Facing Military Families with
Special Needs Children

As in the population at large, some military families have a child with a disability—a "special needs child." But unlike other families, military families face circumstances that exacerbate the challenges of raising a special needs child. Moving once every three years, military families experience unique financial, medical and legal issues, particularly during deployment or a permanent change of station (PCS). While family support services are available at the installation level, lawyers can play an important role in helping families prepare for the changing legal landscape as they move from state to state.  Lawyers can help parents to understand their legal rights under the Individuals with Disabilities Education Improvement Act (20 U.S.C. 1400), Section 504 of the Rehabilitation Act of 1973, and the Interstate Compact on Educational Opportunity for Military Children; providing advice on estate planning, wills, powers of attorney and other legal assistance top­ics; and by coaching parents on advocacy skills. This article gives an overview of some of the topics about which lawyers should be aware when helping a military family with special needs related legal issues.

First, all children with a disability are legally entitled to special education or accommodation as needed to help them progress toward educational goals. Under the Individuals with Disabilities Education Improvement Act of 2004 (referred to as IDEA), children with a disability who need specially designed instruction to meet their needs have the right to a free appropriate public education (FAPE) between the ages of 3 and 21. These children are, to the maximum extent appropriate, to be educated with children who are not disabled, i.e. the least restrictive environment (LRE). Qualifying children also must receive an individually tailored educational program based on peer-reviewed research, called an Individual Education Program (IEP), setting forth a program and services needed for the child to progress. In determining the IEP goals, placement of the child in school, and related services, parents have the right to "meaningful participation" in the decision-making process.

A disabled child not qualifying under the IDEA may still be covered by Section 504 of the Rehabilitation Act of 1973, which provides rights to children with a disability who do not need specially designed instruction or special education, but do need accommodations to progress or attend public schools. Section 504 plans usually outline accommodations like extra time between classes, to get from class to class, or additional time on tests. Children with a disability covered under this act are still entitled to FAPE in the LRE.

One area where military families may be particularly affected involves children under the age of three. Under federal law, children of any age who are suspected of having a disability are entitled to be evaluated at no expense. Often, this state-run program is called "Child Find." Further, under IDEA, a child determined to have a qualifying disability can be provided services as part of an early intervention program before the age of three. However, this same part of IDEA, called Part C, allows states great flexibility in how each offers services. Consequently, programs differ from state to state in the degree of developmental delay that qualifies for coverage, as well as the degree to which a parent must share in the cost of services provided. Thus, a military parent moving from one state to another should be aware of how the new state defines eligibility and how it charges for services.

For a military family with a child covered by an IEP, additional legal issues may arise when moving to another school district. Military parents changing public schools should be aware that they are entitled to receive "comparable services" at the child’s new school. According to IDEA, a child who transfers school districts and has an IEP in effect shall be provided with FAPE "including services comparable to those described in the previously held IEP." Similar language is also found in the Interstate Compact on Educational Opportunities for Military Children.  However, while the IEP from the old school will get parents in the door, the new school will likely immediately re-define what is "appropriate" for the child.  Many military parents find that school districts reduce or alter IEP services shortly after their arrival. It is within the rights of the receiving school district to re-evaluate an incoming child, draft a new IEP and propose its own placement and services solution. Parents have the right to challenge these recommen­dations and decisions.

One strategy to help parents moving with an IEP is to recommend they request a new IEP be created and enforced months before the end of the old school year.  It is better to transfer with an IEP in effect rather than only an agreed-to IEP (written but never used). By moving with a working IEP, the parents have a better argument against reduction in services at the new school. 

When dealing with school issues, it is important for military families to understand that schools run by the Department of Defense Educational Activity (DoDEA) play by their own rules. Of the children attending the 194 DoDEA schools, 11% of children are receiving special education services. While DoDEA schools are like their civilian counterparts in many ways, they follow different guidelines and timelines for providing special education services. First, while public schools in the United States are required to comply with IDEA, DoDEA schools comply with Department of Defense Instruction (DoDI) 1342.12, Provision of Early Intervention and Special Education Services to Eligible DoD Dependants. This instruction does incorporate by reference the substantive and procedural due process requirements found in IDEA part B and C.  Both IDEA and DoDI 1342.12 guarantee a FAPE in the LRE, but DoDI 1342.12 makes no guarantees that timelines and rules it sets for itself will be followed. Instead, it states "[this instruction]…does not create any rights or remedies and many not be relied upon by any person, organi­zation or other entity to allege a denial of such rights or remedies." This section of the DoDI will likely make a case regarding a procedural violation of rights more difficult in a DoDEA school.

A military family’s location may also affect eligibility for Supplemental Security Income (SSI). Junior enlisted parents of a child with a disability can receive financial aid to provide needed support for their child through SSI payments. Entitlement to these payments is often the gateway to enter other federal programs like Medicaid that can provide greater support for the disabled, but parents of a disabled child will have to meet a "means test" to qualify for SSI. Part of their income and property will be tallied in a process called "deeming." Per the Heroes Earning Assistance and Relief Tax Act of 2008(called the HEART Act), military base pay and allowances for housing and subsistence (BAH and BAS) are counted by the Social Security Administration as "earned" income while housing on base (where the military member does not receive BAH) is considered in-kind support and mainte­nance. This is important because, in qualifying, parents are able to have more "earned" income than "unearned" income, helping junior enlisted families qualify for this benefit. However, qualifying for this benefit in one state does not guarantee that a military family will qualify in another state. BAH payments can vary greatly from state to state. So, if a family qualifies at Moody AFB then moves to a high-BAH area like Los Angeles or Washington DC, their eligibility for SSI payments and any other related assistance may cease. If a military family receiving SSI is moving, they should consider the impact on SSI benefits and remember to notify their local Social Security Office before leaving (or risk repayment and penalties). On a positive note, military families can receive SSI while overseas and can apply for SSI while serving overseas.

When dealing with benefits like SSI, estate planning is important—and not all military benefits will work for military parents. If the child with a disability will need assistance through programs like SSI and Medicaid into the future, parents should start planning now. Many benefit programs require the recipients to not exceed specific income limits. These income limits can be easily exceeded if the child inherits money or property through a will or becomes the beneficiary of military benefits like Servicemembers Group Life Insurance (SGLI) or Survivor Benefits Plans (SBP) payments. The military child’s inheritance may dis­qualify him or her from federal and state assistance programs while not providing sufficient income to replace the loss of these benefits. To protect the child with a disability from losing needed eligibility, parents should consider creating a supplemental needs trust to receive assets for the child with a disability. Funds placed in a supplemental needs trusts do not count as assets or income for receipt of federal benefits.

Parents can have assets pour into the trust, protecting the child’s eligibility; knowing that trust funds can be used to provide comfort items for the child. Unfortunately, SBP and another benefit called Dependency and Indemnification Compensation (DIC) payments cannot be routed directly into a trust. While a statutory solution is being devised, parent may chose to redirect SBP benefits away from the child with a disability and direct a future caregiver of a child/adult with a disability to consider impact of DIC payments before applying for them.

In the above, as well as in other legal areas, lawyers can help to make a significant differ­ence in the lives of military families with special-needs children by providing education on the specific challenges they will face as they navigate the often unique medical, financial and legal issues. By being attuned to these families’ unique legal issues will support the provision of the best legal advice and guidance possible. In the end, educating military parents about these issues will help them as they continue to advocate for their children in assignment after assignment. For some, this role of advocate will be a lifelong occupation.

Lieutenant Colonel Elizabeth L. Schuchs-Gopaul is the Staff Judge Advocate for Davis-Monthan Air Force Base in Tucson, Arizona.

Editor’s Note: This article was adapted with permission from a longer article available at http://www.wrightslaw.com/info/mil.parents.12things.pdf.