The Individuals with Disabilities Education Act and Department of Defense Educational Programs: DDESS Case No. 97-001 (March 24, 1998)

AuthorWilliam S. Fields1 And Carol A. Marchant
Pages05

1998] CASE COMMENT 147

THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT AND DEPARTMENT OF DEFENSE EDUCATIONAL PROGRAMS : DDESS CASE NO. 97-001 (MARCH 24, 1998)

WILLIAM S. FIELDS1 AND CAROL A. MARCHANT2

  1. Introduction

    The passage in 1975 of the Education for All Handicapped Children Act3 (EAHCA) marked the beginning of special education as a rapidly growing and evolving area of the law. The EAHCA established a comprehensive system to provide a free appropriate public education to students with disabilities through individualized programs in the least restrictive educational environment. The EAHCA also mandated procedural rights provisions for parents of children with disabilities. These rights include: the right to written notice of the initiation or change or the refusal to initiate or change the identification, evaluation, or placement of their child; the right to examine their child's records; and the opportunity to ask for an impartial due process hearing to challenge the appropriateness of the educational program offered by the public school. In 1990, Congress amended the language of the EAHCA and renamed it the Individuals with Disabilities Education Act (IDEA).4

    The provisions of Parts B and C of the IDEA are applicable to all schools the Department of Defense (DOD) operates5-including the requirement that children with disabilities be provided with a "free appropriate public education" (FAPE).6 When due process hearings are requested under the IDEA, the DOD's regulations that implement the

    1. Deputy Chief Department Counsel, Defense Office of Hearings and Appeals. B.A., University of Virginia, 1976; J.D., College of William and Mary, 1979. Member of the bars of Virginia and the District of Columbia.

    2. Attorney Advisor, Defense Office of Hearings and Appeals. B.A., Marquette University, 1988; J.D., University of Wisconsin Law School, 1993. Member of the bars of Wisconsin and Minnesota.

    3. Pub. L. 94-142, 89 Stat. 773 (1975).

    4. Pub. L. 101-476, sec. 901, 104 Stat. 1103, 1142 (1990); 20 U.S.C. §§ 1400-1487 (1994).

    5. The DDESS serve approximately 35,000 students located in seven states, Puerto Rico, Guantanamo Bay, and Panama. The DODDS serve approximately 48,000 students in Europe and 24,000 students in Asia. The DOD is also responsible under IDEA for providing early intervention services to infants and toddlers with disabilities and their families.

      IDEA provide that the Defense Office of Hearings and Appeals (DOHA) counsel shall normally appear and represent the DOD dependent schools (DODDS) and Defense Domestic Elementary and Secondary Schools (DDESS) when the proceeding involves a child aged three to twenty-one.7 In proceedings that involve an infant or child under age three, the military department responsible for delivering early intervention services may provide its own counsel or request counsel from DOHA.8

      Civilian attorneys and judge advocates who represent the DOD's educational programs must be well informed of the case law that interprets the DOD's obligations to provide special education to children with disabilities. Special education litigation is on the rise across the nation. In the past two decades since the passage of the EAHCA, the number of special education lawsuits against public school systems has increased six-fold.9 This dramatic increase is evident in the number of published court decisions on special education in the public schools: 104 cases in the 1970s, 547 cases in the 1980s, and 623 cases between 1990 and October 1997.10

      Because the number of published cases does not include unreported decisions and disputes resolved through administrative proceedings, settlement, or mediation, the true volume of conflicts is conceivably greater.

      The number of requests for due process hearings within the DOD mirrors this nationwide trend. Before 1997, litigation involving the provision of special education and related services to children in DOD programs was rare. Between 1978 and 1996, parents of students enrolled in DOD educational programs filed only seven due process hearing requests. Since 1997, however, a dramatic change has occurred. Between 1997 and 1998,

    6. 20 U.S.C. § 927(c). With the exception of the funding and reporting requirements set forth in that section, the provisions of Part B and Part C of the IDEA apply to all educational programs the DOD operates. Part B of the IDEA sets out the state formula grant program that requires each state receiving federal financial assistance under the IDEA to develop a state plan to ensure provision of a FAPE to all disabled children residing within the state, aged 3 through 21, and contains a series of procedural safeguards designed to protect the interests of children with disabilities. See 20 U.S.C. §§ 1411-1419. Part C of the IDEA, known prior to the 1997 Amendments to the IDEA as Part H, is a discretionary program that authorizes federal formula grants to states for development and implementation of statewide systems to provide early intervention services for infants and toddlers with disabilities, under 3 years of age. See 20 U.S.C. §§ 1431-1445.

    7. 32 C.F.R. pt. 57, app. F, § C.3 (1998); 32 C.F.R. pt. 80, app. C, § B.3.

    8. Id.

    9. Perry Zirkel, Tipping the Scales, The American School Board Journal, at 36-37 October 1997.

    10. Id.

      DOHA received five due process hearing requests-a number nearly equal to the number of requests made in the preceding eighteen-year period.

      Because of these due process hearing requests, the DOHA Appeal Board announced important first impression rulings that will affect all future special education litigation in the DOD and all DOD programs that provide educational services to children. This case comment examines the factual background of the DOHA Appeal Board decision, its legal underpinnings, and its likely effect on the future operation of DOD educational programs.

      This case originated as a request for a due process hearing under the IDEA.11 Parents of a child attending a DOD operated school made the request. In accordance with the applicable regulations, the hearing occurred before an administrative judge of the DOHA who issued a decision favorable to the parents. The DDESS appealed to the DOHA Appeal Board.

  2. Factual Background

    Parents of a five-year-old child with autism, who is eligible for education and related services provided by the DDESS, made a due process hearing request.12 The child attended DDESS preschool programs in which he received special education and related services from September 1994 to May 1996. Without notice to the DDESS, the parents unilaterally began providing the child in-home Lovaas therapy in August 1996.13 The child was present in the DDESS school briefly in late August and early September 1996 and was absent thereafter.14 After making two unsuccessful attempts to get the child's parents to return the child to the school, the DDESS school administratively withdrew the child from its programs in October 1996.15

    1. 20 U.S.C. §§ 1400-1487.

    2. DOHA Appeal Board Decision, DDESS Case No. 97-001 (March 24, 1998) at 2. DOHA decisions are available on the DOHA internet web site located at .

    3. Id. The Lovaas therapy was based on a program of behavioral therapy for autistic children developed by Dr. O. Ivar Lovaas of the University of California, Los Angeles.

    4. DOHA Appeal Board Decision, DDESS Case No. 97-001 (March 24, 1998) at 2.

    5. Id.

      In November 1996, the child's parents contacted the DDESS and requested that it assume responsibility for providing the Lovaas program at home. They also requested an Individualized Education Program16

      (IEP) meeting. Beginning in January 1997, the case study committee17

      (CSC) met several times with the child's parents to draft new IEP goals and objectives, and to consider placement issues.18

      In April 1997, the parents rejected a CSC proposed an IEP for the child proposed by the CSC because it did not provide the child with a year-round program of...

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