Illinois General Assembly - Full Text of Public Act 095-0257
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Public Act 095-0257


 

Public Act 0257 95TH GENERAL ASSEMBLY



 


 
Public Act 095-0257
 
SB0079 Enrolled LRB095 04474 NHT 24521 b

    AN ACT concerning education.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The School Code is amended by changing Section
14-8.02 as follows:
 
    (105 ILCS 5/14-8.02)  (from Ch. 122, par. 14-8.02)
    Sec. 14-8.02. Identification, Evaluation and Placement of
Children.
    (a) The State Board of Education shall make rules under
which local school boards shall determine the eligibility of
children to receive special education. Such rules shall ensure
that a free appropriate public education be available to all
children with disabilities as defined in Section 14-1.02. The
State Board of Education shall require local school districts
to administer non-discriminatory procedures or tests to
limited English proficiency students coming from homes in which
a language other than English is used to determine their
eligibility to receive special education. The placement of low
English proficiency students in special education programs and
facilities shall be made in accordance with the test results
reflecting the student's linguistic, cultural and special
education needs. For purposes of determining the eligibility of
children the State Board of Education shall include in the
rules definitions of "case study", "staff conference",
"individualized educational program", and "qualified
specialist" appropriate to each category of children with
disabilities as defined in this Article. For purposes of
determining the eligibility of children from homes in which a
language other than English is used, the State Board of
Education, no later than September 1, 1993, shall include in
the rules definitions for "qualified bilingual specialists"
and "linguistically and culturally appropriate individualized
educational programs". In this Section, "parent" includes a
foster parent.
    (b) No child shall be eligible for special education
facilities except with a carefully completed case study fully
reviewed by professional personnel in a multidisciplinary
staff conference and only upon the recommendation of qualified
specialists or a qualified bilingual specialist, if available.
At the conclusion of the multidisciplinary staff conference,
the parent or guardian of the child shall be given a copy of
the multidisciplinary conference summary report and
recommendations, which includes options considered, and be
informed of their right to obtain an independent educational
evaluation if they disagree with the evaluation findings
conducted or obtained by the school district. If the school
district's evaluation is shown to be inappropriate, the school
district shall reimburse the parent for the cost of the
independent evaluation. The State Board of Education shall,
with advice from the State Advisory Council on Education of
Children with Disabilities on the inclusion of specific
independent educational evaluators, prepare a list of
suggested independent educational evaluators. The State Board
of Education shall include on the list clinical psychologists
licensed pursuant to the Clinical Psychologist Licensing Act.
Such psychologists shall not be paid fees in excess of the
amount that would be received by a school psychologist for
performing the same services. The State Board of Education
shall supply school districts with such list and make the list
available to parents at their request. School districts shall
make the list available to parents at the time they are
informed of their right to obtain an independent educational
evaluation. However, the school district may initiate an
impartial due process hearing under this Section within 5 days
of any written parent or guardian request for an independent
educational evaluation to show that its evaluation is
appropriate. If the final decision is that the evaluation is
appropriate, the parent still has a right to an independent
educational evaluation, but not at public expense. An
independent educational evaluation at public expense must be
completed within 30 days of a parent or guardian written
request unless the school district initiates an impartial due
process hearing or the parent or guardian or school district
offers reasonable grounds to show that such 30 day time period
should be extended. If the due process hearing decision
indicates that the parent or guardian is entitled to an
independent educational evaluation, it must be completed
within 30 days of the decision unless the parent or guardian or
the school district offers reasonable grounds to show that such
30 day period should be extended. If a parent disagrees with
the summary report or recommendations of the multidisciplinary
conference or the findings of any educational evaluation which
results therefrom, the school district shall not proceed with a
placement based upon such evaluation and the child shall remain
in his or her regular classroom setting. No child shall be
eligible for admission to a special class for the educable
mentally disabled or for the trainable mentally disabled except
with a psychological evaluation and recommendation by a school
psychologist. Consent shall be obtained from the parent or
guardian of a child before any evaluation is conducted. If
consent is not given by the parent or guardian or if the parent
or guardian disagrees with the findings of the evaluation, then
the school district may initiate an impartial due process
hearing under this Section. The school district may evaluate
the child if that is the decision resulting from the impartial
due process hearing and the decision is not appealed or if the
decision is affirmed on appeal. The determination of
eligibility shall be made within 60 school days from the date
of referral by school authorities for evaluation by the
district or date of application for admittance by the parent or
guardian of the child. In those instances when students are
referred for evaluation with fewer than 60 pupil attendance
days left in the school year, the eligibility determination
shall be made prior to the first day of the following school
year. After a child has been determined to be eligible for a
special education class, such child must be placed in the
appropriate program pursuant to the individualized educational
program by or no later than the beginning of the next school
semester. The appropriate program pursuant to the
individualized educational program of students whose native
tongue is a language other than English shall reflect the
special education, cultural and linguistic needs. No later than
September 1, 1993, the State Board of Education shall establish
standards for the development, implementation and monitoring
of appropriate bilingual special individualized educational
programs. The State Board of Education shall further
incorporate appropriate monitoring procedures to verify
implementation of these standards. The district shall indicate
to the parent or guardian and the State Board of Education the
nature of the services the child will receive for the regular
school term while waiting placement in the appropriate special
education class.
    If the child is deaf, hard of hearing, blind, or visually
impaired and he or she might be eligible to receive services
from the Illinois School for the Deaf or the Illinois School
for the Visually Impaired, the school district shall notify the
parents or guardian, in writing, of the existence of these
schools and the services they provide and shall make a
reasonable effort to inform the parents or guardian of the
existence of other, local schools that provide similar services
and the services that these other schools provide. This
notification shall include without limitation information on
school services, school admissions criteria, and school
contact information.
    In the development of the individualized education program
for a student who has a disability on the autism spectrum
(which includes autistic disorder, Asperger's disorder,
pervasive developmental disorder not otherwise specified,
childhood disintegrative disorder, and Rett Syndrome, as
defined in the Diagnostic and Statistical Manual of Mental
Disorders, fourth edition (DSM-IV, 2000)), the IEP team shall
consider all of the following factors:
        (1) The verbal and nonverbal communication needs of the
    child.
        (2) The need to develop social interaction skills and
    proficiencies.
        (3) The needs resulting from the child's unusual
    responses to sensory experiences.
        (4) The needs resulting from resistance to
    environmental change or change in daily routines.
        (5) The needs resulting from engagement in repetitive
    activities and stereotyped movements.
        (6) The need for any positive behavioral
    interventions, strategies, and supports to address any
    behavioral difficulties resulting from autism spectrum
    disorder.
        (7) Other needs resulting from the child's disability
    that impact progress in the general curriculum, including
    social and emotional development.
This amendatory Act of the 95th General Assembly does not
create any new entitlement to a service, program, or benefit,
but must not affect any entitlement to a service, program, or
benefit created by any other law.
    If the student may be eligible to participate in the
Home-Based Support Services Program for Mentally Disabled
Adults authorized under the Developmental Disability and
Mental Disability Services Act upon becoming an adult, the
student's individualized education program shall include plans
for (i) determining the student's eligibility for those
home-based services, (ii) enrolling the student in the program
of home-based services, and (iii) developing a plan for the
student's most effective use of the home-based services after
the student becomes an adult and no longer receives special
educational services under this Article. The plans developed
under this paragraph shall include specific actions to be taken
by specified individuals, agencies, or officials.
    (c) In the development of the individualized education
program for a student who is functionally blind, it shall be
presumed that proficiency in Braille reading and writing is
essential for the student's satisfactory educational progress.
For purposes of this subsection, the State Board of Education
shall determine the criteria for a student to be classified as
functionally blind. Students who are not currently identified
as functionally blind who are also entitled to Braille
instruction include: (i) those whose vision loss is so severe
that they are unable to read and write at a level comparable to
their peers solely through the use of vision, and (ii) those
who show evidence of progressive vision loss that may result in
functional blindness. Each student who is functionally blind
shall be entitled to Braille reading and writing instruction
that is sufficient to enable the student to communicate with
the same level of proficiency as other students of comparable
ability. Instruction should be provided to the extent that the
student is physically and cognitively able to use Braille.
Braille instruction may be used in combination with other
special education services appropriate to the student's
educational needs. The assessment of each student who is
functionally blind for the purpose of developing the student's
individualized education program shall include documentation
of the student's strengths and weaknesses in Braille skills.
Each person assisting in the development of the individualized
education program for a student who is functionally blind shall
receive information describing the benefits of Braille
instruction. The individualized education program for each
student who is functionally blind shall specify the appropriate
learning medium or media based on the assessment report.
    (d) To the maximum extent appropriate, the placement shall
provide the child with the opportunity to be educated with
children who are not disabled; provided that children with
disabilities who are recommended to be placed into regular
education classrooms are provided with supplementary services
to assist the children with disabilities to benefit from the
regular classroom instruction and are included on the teacher's
regular education class register. Subject to the limitation of
the preceding sentence, placement in special classes, separate
schools or other removal of the disabled child from the regular
educational environment shall occur only when the nature of the
severity of the disability is such that education in the
regular classes with the use of supplementary aids and services
cannot be achieved satisfactorily. The placement of limited
English proficiency students with disabilities shall be in
non-restrictive environments which provide for integration
with non-disabled peers in bilingual classrooms. By January
1993 and annually thereafter, school districts shall report
data on students from non-English speaking backgrounds
receiving special education and related services in public and
private facilities as prescribed in Section 2-3.30. If there is
a disagreement between parties involved regarding the special
education placement of any child, either in-state or
out-of-state, the placement is subject to impartial due process
procedures described in Article 10 of the Rules and Regulations
to Govern the Administration and Operation of Special
Education.
    (e) No child who comes from a home in which a language
other than English is the principal language used may be
assigned to any class or program under this Article until he
has been given, in the principal language used by the child and
used in his home, tests reasonably related to his cultural
environment. All testing and evaluation materials and
procedures utilized for evaluation and placement shall not be
linguistically, racially or culturally discriminatory.
    (f) Nothing in this Article shall be construed to require
any child to undergo any physical examination or medical
treatment whose parents or guardian object thereto on the
grounds that such examination or treatment conflicts with his
religious beliefs.
    (g) School boards or their designee shall provide to the
parents or guardian of a child prior written notice of any
decision (a) proposing to initiate or change, or (b) refusing
to initiate or change, the identification, evaluation, or
educational placement of the child or the provision of a free
appropriate public education to their child, and the reasons
therefor. Such written notification shall also inform the
parent or guardian of the opportunity to present complaints
with respect to any matter relating to the educational
placement of the student, or the provision of a free
appropriate public education and to have an impartial due
process hearing on the complaint. The notice shall inform the
parents or guardian in the parents' or guardian's native
language, unless it is clearly not feasible to do so, of their
rights and all procedures available pursuant to this Act and
federal law 94-142; it shall be the responsibility of the State
Superintendent to develop uniform notices setting forth the
procedures available under this Act and federal law 94-142 to
be used by all school boards. The notice shall also inform the
parents or guardian of the availability upon request of a list
of free or low-cost legal and other relevant services available
locally to assist parents or guardians in initiating an
impartial due process hearing. Any parent or guardian who is
deaf, or does not normally communicate using spoken English,
who participates in a meeting with a representative of a local
educational agency for the purposes of developing an
individualized educational program shall be entitled to the
services of an interpreter.
    (h) A Level I due process hearing, hereinafter referred as
the hearing, shall be conducted upon the request of the parents
or guardian or local school board by an impartial hearing
officer appointed as follows: If the request is made through
the local school district, within 5 school days of receipt of
the request, the local school district shall forward the
request to the State Superintendent. Within 5 days after
receiving this request of hearing, the State Board of Education
shall provide a list of 5 prospective, impartial hearing
officers. The State Board of Education, by rule or regulation,
shall establish criteria for determining which persons can be
included on such a list of prospective hearing officers. No one
on the list may be a resident of the school district. No more
than 2 of the 5 prospective hearing officers shall be gainfully
employed by or administratively connected with any school
district, or any joint agreement or cooperative program in
which school districts participate. In addition, no more than 2
of the 5 prospective hearing officers shall be gainfully
employed by or administratively connected with private
providers of special education services. The State Board of
Education shall actively recruit applicants for hearing
officer positions. The board and the parents or guardian or
their legal representatives within 5 days shall alternately
strike one name from the list until only one name remains. The
parents or guardian shall have the right to proceed first with
the striking. The per diem allowance for the hearing officer
shall be established and paid by the State Board of Education.
The hearing shall be closed to the public except that the
parents or guardian may require that the hearing be public. The
hearing officer shall not be an employee of the school
district, an employee in any joint agreement or cooperative
program in which the district participates, or any other agency
or organization that is directly involved in the diagnosis,
education or care of the student or the State Board of
Education. All impartial hearing officers shall be adequately
trained in federal and state law, rules and regulations and
case law regarding special education. The State Board of
Education shall use resources from within and outside the
agency for the purposes of conducting this training. The
impartial hearing officer shall have the authority to require
additional information or evidence where he or she deems it
necessary to make a complete record and may order an
independent evaluation of the child, the cost of said
evaluation to be paid by the local school district. Such
hearing shall not be considered adversary in nature, but shall
be directed toward bringing out all facts necessary for the
impartial hearing officer to render an informed decision. The
State Board of Education shall, with the advice and approval of
the Advisory Council on Education of Children with
Disabilities, promulgate rules and regulations to establish
the qualifications of the hearing officers and the rules and
procedure for such hearings. The school district shall present
evidence that the special education needs of the child have
been appropriately identified and that the special education
program and related services proposed to meet the needs of the
child are adequate, appropriate and available. Any party to the
hearing shall have the right to: (a) be represented by counsel
and be accompanied and advised by individuals with special
knowledge or training with respect to the problems of children
with disabilities at the party's own expense; (b) present
evidence and confront and cross-examine witnesses; (c)
prohibit the introduction of any evidence at the hearing that
has not been disclosed to that party at least 5 days before the
hearing; (d) obtain a written or electronic verbatim record of
the hearing; (e) obtain written findings of fact and a written
decision. The student shall be allowed to attend the hearing
unless the hearing officer finds that attendance is not in the
child's best interest or detrimental to the child. The hearing
officer shall specify in the findings the reasons for denying
attendance by the student. The hearing officer, or the State
Superintendent in connection with State level hearings, may
subpoena and compel the attendance of witnesses and the
production of evidence reasonably necessary to the resolution
of the hearing. The subpoena may be issued upon request of any
party. The State Board of Education and the school board shall
share equally the costs of providing a written or electronic
record of the proceedings. Such record shall be transcribed and
transmitted to the State Superintendent no later than 10 days
after receipt of notice of appeal. The hearing officer shall
render a decision and shall submit a copy of the findings of
fact and decision to the parent or guardian and to the local
school board within 10 school days after the conclusion of the
hearing. The hearing officer may continue the hearing in order
to obtain additional information, and, at the conclusion of the
hearing, shall issue a decision based on the record which
specifies the special education and related services which
shall be provided to the child in accordance with the child's
needs. The hearing officer's decision shall be binding upon the
local school board and the parent unless such decision is
appealed pursuant to the provisions of this Section.
    (i) Any party aggrieved by the decision may appeal the
hearing officer's decision to the State Board of Education and
shall serve copies of the notice of such appeal on the State
Superintendent and on all other parties. The review referred to
in this Section shall be known as the Level II review. The
State Board of Education shall provide a list of 5 prospective,
impartial reviewing officers. No reviewing officer shall be an
employee of the State Board of Education or gainfully employed
by or administratively connected with the school district,
joint agreement or cooperative program which is a party to this
review. Each person on the list shall be accredited by a
national arbitration organization. The per diem allowance for
the review officers shall be paid by the State Board of
Education and may not exceed $250. All reviewing officers on
the list provided by the State Board of Education shall be
trained in federal and state law, rules and regulations and
case law regarding special education. The State Board of
Education shall use resources from within and outside the
agency for the purposes of conducting this training. No one on
the list may be a resident of the school district. The board
and the parents or guardian or other legal representatives
within 5 days shall alternately strike one name from the list
until only one name remains. The parents or guardian shall have
the right to proceed first with the striking. The reviewing
officer so selected shall conduct an impartial review of the
Level I hearing and may issue subpoenas requiring the
attendance of witnesses at such review. The parties to the
appeal shall be afforded the opportunity to present oral
argument and additional evidence at the review. Upon completion
of the review the reviewing officer shall render a decision and
shall provide a copy of the decision to all parties.
    (j) No later than 30 days after receipt of notice of
appeal, a final decision shall be reached and a copy mailed to
each of the parties. A reviewing officer may grant specific
extensions of time beyond the 30-day deadline at the request of
either party. If a Level II hearing is convened the final
decision of a Level II hearing officer shall occur no more than
30 days following receipt of a notice of appeal, unless an
extension of time is granted by the hearing officer at the
request of either party. The State Board of Education shall
establish rules and regulations delineating the standards to be
used in determining whether the reviewing officer shall grant
such extensions. Each hearing and each review involving oral
argument must be conducted at a time and place which are
reasonably convenient to the parents and the child involved.
    (k) Any party aggrieved by the decision of the reviewing
officer, including the parent or guardian, shall have the right
to bring a civil action with respect to the complaint presented
pursuant to this Section, which action may be brought in any
circuit court of competent jurisdiction within 120 days after a
copy of the decision is mailed to the party as provided in
subsection (j). The civil action provided above shall not be
exclusive of any rights or causes of action otherwise
available. The commencement of a civil action under subsection
(k) of this Section shall operate as a supersedeas. In any
action brought under this Section the court shall receive the
records of the administrative proceedings, shall hear
additional evidence at the request of a party, and basing its
decision on the preponderance of the evidence shall grant such
relief as the court determines is appropriate. In any instance
where a school district willfully disregards applicable
regulations or statutes regarding a child covered by this
Article, and which disregard has been detrimental to the child,
the school district shall be liable for any reasonable
attorney's fees incurred by the parent or guardian in
connection with proceedings under this Section.
    (l) During the pendency of any proceedings conducted
pursuant to this Section, unless the State Superintendent of
Education, or the school district and the parents or guardian
otherwise agree, the student shall remain in the then current
educational placement of such student, or if applying for
initial admission to the school district, shall, with the
consent of the parents or guardian, be placed in the school
district program until all such proceedings have been
completed. The costs for any special education and related
services or placement incurred following 60 school days after
the initial request for evaluation shall be borne by the school
district if such services or placement are in accordance with
the final determination as to the special education and related
services or placement which must be provided to the child,
provided however that in said 60 day period there have been no
delays caused by the child's parent or guardian.
    (m) Whenever (i) the parents or guardian of a child of the
type described in Section 14-1.02 are not known or are
unavailable or (ii) the child is a ward of the State residing
in a residential facility, a person shall be assigned to serve
as surrogate parent for the child in matters relating to the
identification, evaluation, and educational placement of the
child and the provision of a free appropriate public education
to the child. Surrogate parents shall be assigned by the State
Superintendent of Education. The State Board of Education shall
promulgate rules and regulations establishing qualifications
of such persons and their responsibilities and the procedures
to be followed in making such assignments. Such surrogate
parents shall not be employees of the school district, an
agency created by joint agreement under Section 10-22.31, an
agency involved in the education or care of the student, or the
State Board of Education. For a child who is a ward of the
State residing in a residential facility, the surrogate parent
may be an employee of a nonpublic agency that provides only
non-educational care. Services of any person assigned as
surrogate parent shall terminate if the parent or guardian
becomes available unless otherwise requested by the parents or
guardian. The assignment of a person as surrogate parent at no
time supersedes, terminates, or suspends the parents' or
guardian's legal authority relative to the child. Any person
participating in good faith as surrogate parent on behalf of
the child before school officials or a hearing officer shall
have immunity from civil or criminal liability that otherwise
might result by reason of such participation, except in cases
of willful and wanton misconduct.
    (n) At all stages of the hearing the hearing officer shall
require that interpreters be made available by the local school
district for persons who are deaf or for persons whose normally
spoken language is other than English.
    (o) Whenever a person refuses to comply with any subpoena
issued under this Section, the circuit court of the county in
which such hearing is pending, on application of the State
Superintendent of Education or the party who requested issuance
of the subpoena may compel obedience by attachment proceedings
as for contempt, as in a case of disobedience of the
requirements of a subpoena from such court for refusal to
testify therein.
(Source: P.A. 93-282, eff. 7-22-03; 94-376, eff. 7-29-05.)
 
    Section 99. Effective date. This Act takes effect January
1, 2008.

Effective Date: 1/1/2008