HB4365 102ND GENERAL ASSEMBLY

LRB102 23289 CMG 32455 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB4365

Introduced 1/5/2022, by Rep. Daniel Didech

SYNOPSIS AS INTRODUCED:

105 ILCS 5/14-7.02	from Ch. 122, par. 14-7.02
105 ILCS 5/14-7.05
105 ILCS 5/14-15.01	from Ch. 122, par. 14-15.01

Amends the Children with Disabilities Article of the School Code. Allows a child's individualized education program (IEP) team to determine whether the special education program of a school district is unable to meet the needs of a child with a disability. Provides that the financial responsibility and reimbursement of the resident district of a child with a disability applies to both nonpublic special education facilities that are approved by the State Board of Education and nonpublic special education facilities that are not approved by the State Board of Education. Requires that a nonpublic special education facility providing services to demonstrate proof to the State Board of Education of (i) appropriate certification of teachers for the student population, (ii) age-appropriate curriculum, (iii) enrollment and attendance data, and (iv) the ability to implement the child's IEP. Sets forth provisions concerning requests for approval by the State Board of Education of a nonpublic special education facility. Provides that the Community and Residential Service Authority has the power to make final determinations regarding the approval of nonpublic special education facilities. Effective immediately.

A BILL FOR

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 Sections 14-7.02, 14-7.05, and 14-15.01 as follows:

(105 ILCS 5/14-7.02) (from Ch. 122, par. 14-7.02)

Sec. 14-7.02. Children attending private schools, public out-of-state schools, public school residential facilities or private special education facilities. The General Assembly recognizes that non-public schools or special education facilities provide an important service in the educational system in Illinois.

If the child's individualized education program team determines that because of the child's his or her disability the special education program of a district is unable to meet the needs of a child and the child attends a non-public school or special education facility, a public out-of-state school or a special education facility owned and operated by a county government unit that provides special educational services required by the child and is in compliance with the appropriate rules and regulations of the State Superintendent of Education, the school district in which the child is a resident shall pay the actual cost of tuition for special education and related services provided during the regular school term and during the summer school term if the child's educational needs so require, excluding room, board and transportation costs charged the child by that non-public school or special education facility, public out-of-state school or county special education facility, or $4,500 per year, whichever is less, and shall provide him any necessary transportation. "Nonpublic special education facility" shall include a residential facility, within or without the State of Illinois, which provides special education and related services to meet the needs of the child by utilizing private schools or public schools, whether located on the site or off the site of the residential facility. Resident district financial responsibility and reimbursement applies to both nonpublic special education facilities that are approved by the State Board of Education pursuant to 23 Ill. Adm. Code 401 or other applicable laws or rules and nonpublic special education facilities that are not approved by the State Board of Education pursuant to 23 Ill. Adm. Code 401 or other applicable laws or rules, subject to the requirements of this Section.

Prior to the placement of a child in an out-of-state special education residential facility, the school district must refer to the child or the child's parent or guardian the option to place the child in a special education residential facility located within this State, if any, that provides treatment and services comparable to those provided by the out-of-state special education residential facility. The school district must review annually the placement of a child in an out-of-state special education residential facility. As a part of the review, the school district must refer to the child or the child's parent or guardian the option to place the child in a comparable special education residential facility located within this State, if any.

Payments shall be made by the resident district to the entity providing the educational services, whether the entity is the nonpublic special education facility or the school district wherein the facility is located, no less than once per quarter unless otherwise agreed to in writing by the parties.

A nonpublic special education facility providing educational services within the facility but not approved by the State Board of Education pursuant to 23 Ill. Adm. Code 401 or other applicable laws or rules is required to demonstrate proof to the State Board of Education of (i) appropriate certification of teachers for the student population, (ii) age-appropriate curriculum, (iii) enrollment and attendance data, and (iv) the ability to implement the child's IEP. A resident school district may also submit such proof to the State Board of Education as may be required for the student. A school district is under no obligation to pay such a residential facility unless and until such proof is provided to the satisfaction of the State Board. The State Board of Education shall not unreasonably withhold approval once satisfactory proof is provided to the State Board.

If the State Board of Education denies approval in writing or does not respond to a facility's or resident district's request for approval within 10 days after the request is submitted to the State Board of Education, the matter shall be referred to the Community and Residential Services Authority, which shall make the determination and notify the facility or resident district and the State Board of Education within 10 days after the Authority receives the referral. The approval determination by the Community and Residential Services Authority is final.

If an impartial due process hearing officer who is contracted by the State Board of Education pursuant to this Article orders the placement of a student with a disability in a residential facility that is not approved by the State Board of Education, then for purposes of this Section the facility shall be deemed approved and school district payments and State reimbursements shall be made as though the facility received approval by the State Board of Education.

The State Board of Education shall promulgate rules and regulations for determining when placement in a private special education facility is appropriate. Such rules and regulations shall take into account the various types of services needed by a child and the availability of such services to the particular child in the public school. In developing these rules and regulations the State Board of Education shall consult with the Advisory Council on Education of Children with Disabilities and hold public hearings to secure recommendations from parents, school personnel, and others concerned about this matter.

The State Board of Education shall also promulgate rules and regulations for transportation to and from a residential school. Transportation to and from home to a residential school more than once each school term shall be subject to prior approval by the State Superintendent in accordance with the rules and regulations of the State Board.

A school district making tuition payments pursuant to this Section is eligible for reimbursement from the State for the amount of such payments actually made in excess of the district per capita tuition charge for students not receiving special education services. Such reimbursement shall be approved in accordance with Section 14-12.01 and each district shall file its claims, computed in accordance with rules prescribed by the State Board of Education, on forms prescribed by the State Superintendent of Education. Data used as a basis of reimbursement claims shall be for the preceding regular school term and summer school term. Each school district shall transmit its claims to the State Board of Education on or before August 15. The State Board of Education, before approving any such claims, shall determine their accuracy and whether they are based upon services and facilities provided under approved programs. Upon approval the State Board shall cause vouchers to be prepared showing the amount due for payment of reimbursement claims to school districts, for transmittal to the State Comptroller on the 30th day of September, December, and March, respectively, and the final voucher, no later than June 20. If the money appropriated by the General Assembly for such purpose for any year is insufficient, it shall be apportioned on the basis of the claims approved.

No child shall be placed in a special education program pursuant to this Section if the tuition cost for special education and related services increases more than 10 percent over the tuition cost for the previous school year or exceeds $4,500 per year unless such costs have been approved by the Illinois Purchased Care Review Board. The Illinois Purchased Care Review Board shall consist of the following persons, or their designees: the Directors of Children and Family Services, Public Health, Public Aid, and the Governor's Office of Management and Budget; the Secretary of Human Services; the State Superintendent of Education; and such other persons as the Governor may designate. The Review Board shall also consist of one non-voting member who is an administrator of a private, nonpublic, special education school. The Review Board shall establish rules and regulations for its determination of allowable costs and payments made by local school districts for special education, room and board, and other related services provided by non-public schools or special education facilities and shall establish uniform standards and criteria which it shall follow. The Review Board shall approve the usual and customary rate or rates of a special education program that (i) is offered by an out-of-state, non-public provider of integrated autism specific educational and autism specific residential services, (ii) offers 2 or more levels of residential care, including at least one locked facility, and (iii) serves 12 or fewer Illinois students.

In determining rates based on allowable costs, the Review Board shall consider any wage increases awarded by the General Assembly to front line personnel defined as direct support persons, aides, front-line supervisors, qualified intellectual disabilities professionals, nurses, and non-administrative support staff working in service settings in community-based settings within the State and adjust customary rates or rates of a special education program to be equitable to the wage increase awarded to similar staff positions in a community residential setting. Any wage increase awarded by the General Assembly to front line personnel defined as direct support persons, aides, front-line supervisors, qualified intellectual disabilities professionals, nurses, and non-administrative support staff working in community-based settings within the State, including the $0.75 per hour increase contained in Public Act 100-23 and the $0.50 per hour increase included in Public Act 100-23, shall also be a basis for any facility covered by this Section to appeal its rate before the Review Board under the process defined in Title 89, Part 900, Section 340 of the Illinois Administrative Code. Illinois Administrative Code Title 89, Part 900, Section 342 shall be updated to recognize wage increases awarded to community-based settings to be a basis for appeal. However, any wage increase that is captured upon appeal from a previous year shall not be counted by the Review Board as revenue for the purpose of calculating a facility's future rate.

Any definition used by the Review Board in administrative rule or policy to define "related organizations" shall include any and all exceptions contained in federal law or regulation as it pertains to the federal definition of "related organizations".

The Review Board shall establish uniform definitions and criteria for accounting separately by special education, room and board and other related services costs. The Board shall also establish guidelines for the coordination of services and financial assistance provided by all State agencies to assure that no otherwise qualified child with a disability receiving services under Article 14 shall be excluded from participation in, be denied the benefits of or be subjected to discrimination under any program or activity provided by any State agency.

The Review Board shall review the costs for special education and related services provided by non-public schools or special education facilities and shall approve or disapprove such facilities in accordance with the rules and regulations established by it with respect to allowable costs.

The State Board of Education shall provide administrative and staff support for the Review Board as deemed reasonable by the State Superintendent of Education. This support shall not include travel expenses or other compensation for any Review Board member other than the State Superintendent of Education.

The Review Board shall seek the advice of the Advisory Council on Education of Children with Disabilities on the rules and regulations to be promulgated by it relative to providing special education services.

If a child has been placed in a program in which the actual per pupil costs of tuition for special education and related services based on program enrollment, excluding room, board and transportation costs, exceed $4,500 and such costs have been approved by the Review Board, the district shall pay such total costs which exceed $4,500. A district making such tuition payments in excess of $4,500 pursuant to this Section shall be responsible for an amount in excess of $4,500 equal to the district per capita tuition charge and shall be eligible for reimbursement from the State for the amount of such payments actually made in excess of the districts per capita tuition charge for students not receiving special education services.

If a child has been placed in an approved individual program and the tuition costs including room and board costs have been approved by the Review Board, then such room and board costs shall be paid by the appropriate State agency subject to the provisions of Section 14-8.01 of this Act. Room and board costs not provided by a State agency other than the State Board of Education shall be provided by the State Board of Education on a current basis. In no event, however, shall the State's liability for funding of these tuition costs begin until after the legal obligations of third party payors have been subtracted from such costs. If the money appropriated by the General Assembly for such purpose for any year is insufficient, it shall be apportioned on the basis of the claims approved. Each district shall submit estimated claims to the State Superintendent of Education. Upon approval of such claims, the State Superintendent of Education shall direct the State Comptroller to make payments on a monthly basis. The frequency for submitting estimated claims and the method of determining payment shall be prescribed in rules and regulations adopted by the State Board of Education. Such current state reimbursement shall be reduced by an amount equal to the proceeds which the child or child's parents are eligible to receive under any public or private insurance or assistance program. Nothing in this Section shall be construed as relieving an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to a child with a disability.

If it otherwise qualifies, a school district is eligible for the transportation reimbursement under Section 14-13.01 and for the reimbursement of tuition payments under this Section whether the non-public school or special education facility, public out-of-state school or county special education facility, attended by a child who resides in that district and requires special educational services, is within or outside of the State of Illinois. However, a district is not eligible to claim transportation reimbursement under this Section unless the district certifies to the State Superintendent of Education that the district is unable to provide special educational services required by the child for the current school year.

Nothing in this Section authorizes the reimbursement of a school district for the amount paid for tuition of a child attending a non-public school or special education facility, public out-of-state school or county special education facility unless the school district certifies to the State Superintendent of Education that the special education program of that district is unable to meet the needs of that child because of his disability and the State Superintendent of Education finds that the school district is in substantial compliance with Section 14-4.01. However, if a child is unilaterally placed by a State agency or any court in a non-public school or special education facility, public out-of-state school, or county special education facility, a school district shall not be required to certify to the State Superintendent of Education, for the purpose of tuition reimbursement, that the special education program of that district is unable to meet the needs of a child because of his or her disability.

Any educational or related services provided, pursuant to this Section in a non-public school or special education facility or a special education facility owned and operated by a county government unit shall be at no cost to the parent or guardian of the child. However, current law and practices relative to contributions by parents or guardians for costs other than educational or related services are not affected by this amendatory Act of 1978.

Reimbursement for children attending public school residential facilities shall be made in accordance with the provisions of this Section.

Notwithstanding any other provision of law, any school district receiving a payment under this Section or under Section 14-7.02b, 14-13.01, or 29-5 of this Code may classify all or a portion of the funds that it receives in a particular fiscal year or from general State aid pursuant to Section 18-8.05 of this Code as funds received in connection with any funding program for which it is entitled to receive funds from the State in that fiscal year (including, without limitation, any funding program referenced in this Section), regardless of the source or timing of the receipt. The district may not classify more funds as funds received in connection with the funding program than the district is entitled to receive in that fiscal year for that program. Any classification by a district must be made by a resolution of its board of education. The resolution must identify the amount of any payments or general State aid to be classified under this paragraph and must specify the funding program to which the funds are to be treated as received in connection therewith. This resolution is controlling as to the classification of funds referenced therein. A certified copy of the resolution must be sent to the State Superintendent of Education. The resolution shall still take effect even though a copy of the resolution has not been sent to the State Superintendent of Education in a timely manner. No classification under this paragraph by a district shall affect the total amount or timing of money the district is entitled to receive under this Code. No classification under this paragraph by a district shall in any way relieve the district from or affect any requirements that otherwise would apply with respect to that funding program, including any accounting of funds by source, reporting expenditures by original source and purpose, reporting requirements, or requirements of providing services.

(Source: P.A. 101-10, eff. 6-5-19; 102-254, eff. 8-6-21.)

(105 ILCS 5/14-7.05)

Sec. 14-7.05. Placement in residential facility; payment of educational costs. For any student with a disability in a residential facility placement made or paid for by an Illinois public State agency or made by any court in this State, the school district of residence as determined pursuant to this Article is responsible for the costs of educating the child and shall be reimbursed for those costs in accordance with this Code. Subject to this Section and relevant State appropriation, the resident district's financial responsibility and reimbursement must be calculated in accordance with the provisions of Section 14-7.02 of this Code. In those instances in which a district receives a block grant pursuant to Article 1D of this Code, the district's financial responsibility is limited to the actual educational costs of the placement, which must be paid by the district from its block grant appropriation. Resident district financial responsibility and reimbursement applies for both residential facilities that are approved by the State Board of Education and non-approved facilities, subject to the requirements of this Section. The Illinois placing agency or court remains responsible for funding the residential portion of the placement and for notifying the resident district prior to the placement, except in emergency situations. The residential facility in which the student is placed shall notify the resident district of the student's enrollment as soon as practicable after the placement. Failure of the placing agency or court to notify the resident district prior to the placement does not absolve the resident district of financial responsibility for the educational costs of the placement; however, the resident district shall not become financially responsible unless and until it receives written notice of the placement by either the placing agency, court, or residential facility. The placing agency or parent shall request an individualized education program (IEP) meeting from the resident district if the placement would entail additional educational services beyond the student's current IEP. The district of residence shall retain control of the IEP process, and any changes to the IEP must be done in compliance with the federal Individuals with Disabilities Education Act.

Prior to the placement of a child in an out-of-state special education residential facility, the placing agency or court must refer to the child or the child's parent or guardian the option to place the child in a special education residential facility located within this State, if any, that provides treatment and services comparable to those provided by the out-of-state special education residential facility. The placing agency or court must review annually the placement of a child in an out-of-state special education residential facility. As a part of the review, the placing agency or court must refer to the child or the child's parent or guardian the option to place the child in a comparable special education residential facility located within this State, if any.

Payments shall be made by the resident district to the entity providing the educational services, whether the entity is the residential facility or the school district wherein the facility is located, no less than once per quarter unless otherwise agreed to in writing by the parties.

A residential facility providing educational services within the facility, but not approved by the State Board of Education, is required to demonstrate proof to the State Board of (i) appropriate certification of teachers for the student population, (ii) age-appropriate curriculum, (iii) enrollment and attendance data, and (iv) the ability to implement the child's IEP. A school district is under no obligation to pay such a residential facility unless and until such proof is provided to the State Board's satisfaction. The State Board of Education shall not unreasonably withhold approval once satisfactory proof is provided to the State Board. If the State Board of Education denies approval in writing or does not respond to a facility's or resident district's request for approval within 10 days after the request is submitted to the State Board of Education, the matter shall be referred to the Community and Residential Services Authority, which shall make the determination and notify the facility or resident district and the State Board of Education within 10 days after the Authority receives the referral. The approval determination by the Community and Residential Services Authority is final.

If an impartial due process hearing officer who is under contract with the State Board of Education pursuant to this Article orders the placement of a student with a disability in a residential facility that is not approved by the State Board of Education, then for purposes of this Section the facility shall be deemed approved and school district payments and State reimbursements shall be made as though the facility received approval by the State Board of Education.

When a dispute arises over the determination of the district of residence under this Section, any person or entity, including without limitation a school district or residential facility, may make a written request for a residency decision to the State Superintendent of Education, who, upon review of materials submitted and any other items of information he or she may request for submission, shall issue his or her decision in writing. The decision of the State Superintendent of Education is final.

(Source: P.A. 102-254, eff. 8-6-21.)

(105 ILCS 5/14-15.01) (from Ch. 122, par. 14-15.01)

Sec. 14-15.01. Community and Residential Services Authority.

(a) (1) The Community and Residential Services Authority is hereby created and shall consist of the following members:

A representative of the State Board of Education;

Four representatives of the Department of Human Services appointed by the Secretary of Human Services, with one member from the Division of Community Health and Prevention, one member from the Division of Developmental Disabilities, one member from the Division of Mental Health, and one member from the Division of Rehabilitation Services;

A representative of the Department of Children and Family Services;

A representative of the Department of Juvenile Justice;

A representative of the Department of Healthcare and Family Services;

A representative of the Attorney General's Disability Rights Advocacy Division;

The Chairperson and Minority Spokesperson of the House and Senate Committees on Elementary and Secondary Education or their designees; and

Six persons appointed by the Governor. Five of such appointees shall be experienced or knowledgeable relative to provision of services for individuals with a behavior disorder or a severe emotional disturbance and shall include representatives of both the private and public sectors, except that no more than 2 of those 5 appointees may be from the public sector and at least 2 must be or have been directly involved in provision of services to such individuals. The remaining member appointed by the Governor shall be or shall have been a parent of an individual with a behavior disorder or a severe emotional disturbance, and that appointee may be from either the private or the public sector.

(2) Members appointed by the Governor shall be appointed for terms of 4 years and shall continue to serve until their respective successors are appointed; provided that the terms of the original appointees shall expire on August 1, 1990. Any vacancy in the office of a member appointed by the Governor shall be filled by appointment of the Governor for the remainder of the term.

A vacancy in the office of a member appointed by the Governor exists when one or more of the following events occur:

(i) An appointee dies;

(ii) An appointee files a written resignation with the Governor;

(iii) An appointee ceases to be a legal resident of the State of Illinois; or

(iv) An appointee fails to attend a majority of regularly scheduled Authority meetings in a fiscal year.

Members who are representatives of an agency shall serve at the will of the agency head. Membership on the Authority shall cease immediately upon cessation of their affiliation with the agency. If such a vacancy occurs, the appropriate agency head shall appoint another person to represent the agency.

If a legislative member of the Authority ceases to be Chairperson or Minority Spokesperson of the designated Committees, they shall automatically be replaced on the Authority by the person who assumes the position of Chairperson or Minority Spokesperson.

(b) The Community and Residential Services Authority shall have the following powers and duties:

(1) To conduct surveys to determine the extent of need, the degree to which documented need is currently being met and feasible alternatives for matching need with resources.

(2) To develop policy statements for interagency cooperation to cover all aspects of service delivery, including laws, regulations and procedures, and clear guidelines for determining responsibility at all times.

(3) To recommend policy statements and provide information regarding effective programs for delivery of services to all individuals under 22 years of age with a behavior disorder or a severe emotional disturbance in public or private situations.

(4) To review the criteria for service eligibility, provision and availability established by the governmental agencies represented on this Authority, and to recommend changes, additions or deletions to such criteria.

(5) To develop and submit to the Governor, the General Assembly, the Directors of the agencies represented on the Authority, and the State Board of Education a master plan for individuals under 22 years of age with a behavior disorder or a severe emotional disturbance, including detailed plans of service ranging from the least to the most restrictive options; and to assist local communities, upon request, in developing or strengthening collaborative interagency networks.

(6) To develop a process for making determinations in situations where there is a dispute relative to a plan of service for individuals or funding for a plan of service.

(7) To provide technical assistance to parents, service consumers, providers, and member agency personnel regarding statutory responsibilities of human service and educational agencies, and to provide such assistance as deemed necessary to appropriately access needed services.

(8) To establish a pilot program to act as a residential research hub to research and identify appropriate residential settings for youth who are being housed in an emergency room for more than 72 hours or who are deemed beyond medical necessity in a psychiatric hospital. If a child is deemed beyond medical necessity in a psychiatric hospital and is in need of residential placement, the goal of the program is to prevent a lock-out pursuant to the goals of the Custody Relinquishment Prevention Act.

(9) To make final determinations regarding approval of nonpublic special education facilities in accordance with Sections 14-7.02 and 14-7.05 of this Article.

(c) (1) The members of the Authority shall receive no compensation for their services but shall be entitled to reimbursement of reasonable expenses incurred while performing their duties.

(2) The Authority may appoint special study groups to operate under the direction of the Authority and persons appointed to such groups shall receive only reimbursement of reasonable expenses incurred in the performance of their duties.

(3) The Authority shall elect from its membership a chairperson, vice-chairperson and secretary.

(4) The Authority may employ and fix the compensation of such employees and technical assistants as it deems necessary to carry out its powers and duties under this Act. Staff assistance for the Authority shall be provided by the State Board of Education.

(5) Funds for the ordinary and contingent expenses of the Authority shall be appropriated to the State Board of Education in a separate line item.

(d) (1) The Authority shall have power to promulgate rules and regulations to carry out its powers and duties under this Act.

(2) The Authority may accept monetary gifts or grants from the federal government or any agency thereof, from any charitable foundation or professional association or from any other reputable source for implementation of any program necessary or desirable to the carrying out of the general purposes of the Authority. Such gifts and grants may be held in trust by the Authority and expended in the exercise of its powers and performance of its duties as prescribed by law.

(3) The Authority shall submit an annual report of its activities and expenditures to the Governor, the General Assembly, the directors of agencies represented on the Authority, and the State Superintendent of Education.

(e) The Executive Director of the Authority or his or her designee shall be added as a participant on the Interagency Clinical Team established in the intergovernmental agreement among the Department of Healthcare and Family Services, the Department of Children and Family Services, the Department of Human Services, the State Board of Education, the Department of Juvenile Justice, and the Department of Public Health, with consent of the youth or the youth's guardian or family pursuant to the Custody Relinquishment Prevention Act.

(Source: P.A. 102-43, eff. 7-6-21.)

Section 99. Effective date. This Act takes effect upon becoming law.