093_SB0566eng SB566 Engrossed LRB093 10775 NHT 11188 b 1 AN ACT concerning education. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The School Code is amended by changing 5 Section 14-8.02 as follows: 6 (105 ILCS 5/14-8.02) (from Ch. 122, par. 14-8.02) 7 Sec. 14-8.02. Identification, Evaluation and Placement 8 of Children. 9 (a) The State Board of Education shall make rules under 10 which local school boards shall determine the eligibility of 11 children to receive special education. Such rules shall 12 ensure that a free appropriate public education be available 13 to all children with disabilities as defined in Section 14 14-1.02. The State Board of Education shall require local 15 school districts to administer non-discriminatory procedures 16 or tests to limited English proficiency students coming from 17 homes in which a language other than English is used to 18 determine their eligibility to receive special education. 19 The placement of low English proficiency students in special 20 education programs and facilities shall be made in accordance 21 with the test results reflecting the student's linguistic, 22 cultural and special education needs. For purposes of 23 determining the eligibility of children the State Board of 24 Education shall include in the rules definitions of "case 25 study", "staff conference", "individualized educational 26 program", and "qualified specialist" appropriate to each 27 category of children with disabilities as defined in this 28 Article. For purposes of determining the eligibility of 29 children from homes in which a language other than English is 30 used, the State Board of Education, no later than September 31 1, 1993, shall include in the rules definitions for SB566 Engrossed -2- LRB093 10775 NHT 11188 b 1 "qualified bilingual specialists" and "linguistically and 2 culturally appropriate individualized educational programs". 3 In this Section, "parent" includes a foster parent. 4 (b) No child shall be eligible for special education 5 facilities except with a carefully completed case study fully 6 reviewed by professional personnel in a multidisciplinary 7 staff conference and only upon the recommendation of 8 qualified specialists or a qualified bilingual specialist, if 9 available. At the conclusion of the multidisciplinary staff 10 conference, the parent or guardian of the child shall be 11 given a copy of the multidisciplinary conference summary 12 report and recommendations, which includes options 13 considered, and be informed of their right to obtain an 14 independent educational evaluation if they disagree with the 15 evaluation findings conducted or obtained by the school 16 district. If the school district's evaluation is shown to be 17 inappropriate, the school district shall reimburse the parent 18 for the cost of the independent evaluation. The State Board 19 of Education shall, with advice from the State Advisory 20 Council on Education of Children with Disabilities on the 21 inclusion of specific independent educational evaluators, 22 prepare a list of suggested independent educational 23 evaluators. The State Board of Education shall include on the 24 list clinical psychologists licensed pursuant to the Clinical 25 Psychologist Licensing Act. Such psychologists shall not be 26 paid fees in excess of the amount that would be received by a 27 school psychologist for performing the same services. The 28 State Board of Education shall supply school districts with 29 such list and make the list available to parents at their 30 request. School districts shall make the list available to 31 parents at the time they are informed of their right to 32 obtain an independent educational evaluation. However, the 33 school district may initiate an impartial due process hearing 34 under this Section within 5 days of any written parent or SB566 Engrossed -3- LRB093 10775 NHT 11188 b 1 guardian request for an independent educational evaluation to 2 show that its evaluation is appropriate. If the final 3 decision is that the evaluation is appropriate, the parent 4 still has a right to an independent educational evaluation, 5 but not at public expense. An independent educational 6 evaluation at public expense must be completed within 30 days 7 of a parent or guardian written request unless the school 8 district initiates an impartial due process hearing or the 9 parent or guardian or school district offers reasonable 10 grounds to show that such 30 day time period should be 11 extended. If the due process hearing decision indicates that 12 the parent or guardian is entitled to an independent 13 educational evaluation, it must be completed within 30 days 14 of the decision unless the parent or guardian or the school 15 district offers reasonable grounds to show that such 30 day 16 period should be extended. If a parent disagrees with the 17 summary report or recommendations of the multidisciplinary 18 conference or the findings of any educational evaluation 19 which results therefrom, the school district shall not 20 proceed with a placement based upon such evaluation and the 21 child shall remain in his or her regular classroom setting. 22 No child shall be eligible for admission to a special class 23 for the educable mentally disabled or for the trainable 24 mentally disabled except with a psychological evaluation and 25 recommendation by a school psychologist. Consent shall be 26 obtained from the parent or guardian of a child before any 27 evaluation is conducted. If consent is not given by the 28 parent or guardian or if the parent or guardian disagrees 29 with the findings of the evaluation, then the school district 30 may initiate an impartial due process hearing under this 31 Section. The school district may evaluate the child if that 32 is the decision resulting from the impartial due process 33 hearing and the decision is not appealed or if the decision 34 is affirmed on appeal. The determination of eligibility shall SB566 Engrossed -4- LRB093 10775 NHT 11188 b 1 be made within 60 school days from the date of referral by 2 school authorities for evaluation by the district or date of 3 application for admittance by the parent or guardian of the 4 child. In those instances when students are referred for 5 evaluation with fewer than 60 pupil attendance days left in 6 the school year, the eligibility determination shall be made 7 prior to the first day of the following school year. After a 8 child has been determined to be eligible for a special 9 education class, such child must be placed in the appropriate 10 program pursuant to the individualized educational program by 11 or no later than the beginning of the next school semester. 12 The appropriate program pursuant to the individualized 13 educational program of students whose native tongue is a 14 language other than English shall reflect the special 15 education, cultural and linguistic needs. No later than 16 September 1, 1993, the State Board of Education shall 17 establish standards for the development, implementation and 18 monitoring of appropriate bilingual special individualized 19 educational programs. The State Board of Education shall 20 further incorporate appropriate monitoring procedures to 21 verify implementation of these standards. The district shall 22 indicate to the parent or guardian and the State Board of 23 Education the nature of the services the child will receive 24 for the regular school term while waiting placement in the 25 appropriate special education class. 26 If the child is deaf, hard of hearing, blind, or visually 27 impaired and he or she might be eligible to receive services 28 from the Illinois School for the Deaf or the Illinois School 29 for the Visually Impaired, the school district shall notify 30 the parents or guardian, in writing, of the existence of 31 these schools and other, local facilities that provide 32 similar services and the services that these schools and 33 other facilities provide. This notification shall include 34 without limitation information on school services, school SB566 Engrossed -5- LRB093 10775 NHT 11188 b 1 admissions criteria, and school contact information. 2 If the student may be eligible to participate in the 3 Home-Based Support Services Program for Mentally Disabled 4 Adults authorized under the Developmental Disability and 5 Mental Disability Services Act upon becoming an adult, the 6 student's individualized education program shall include 7 plans for (i) determining the student's eligibility for those 8 home-based services, (ii) enrolling the student in the 9 program of home-based services, and (iii) developing a plan 10 for the student's most effective use of the home-based 11 services after the student becomes an adult and no longer 12 receives special educational services under this Article. 13 The plans developed under this paragraph shall include 14 specific actions to be taken by specified individuals, 15 agencies, or officials. 16 (c) In the development of the individualized education 17 program for a student who is functionally blind, it shall be 18 presumed that proficiency in Braille reading and writing is 19 essential for the student's satisfactory educational 20 progress. For purposes of this subsection, the State Board 21 of Education shall determine the criteria for a student to be 22 classified as functionally blind. Students who are not 23 currently identified as functionally blind who are also 24 entitled to Braille instruction include: (i) those whose 25 vision loss is so severe that they are unable to read and 26 write at a level comparable to their peers solely through the 27 use of vision, and (ii) those who show evidence of 28 progressive vision loss that may result in functional 29 blindness. Each student who is functionally blind shall be 30 entitled to Braille reading and writing instruction that is 31 sufficient to enable the student to communicate with the same 32 level of proficiency as other students of comparable ability. 33 Instruction should be provided to the extent that the student 34 is physically and cognitively able to use Braille. Braille SB566 Engrossed -6- LRB093 10775 NHT 11188 b 1 instruction may be used in combination with other special 2 education services appropriate to the student's educational 3 needs. The assessment of each student who is functionally 4 blind for the purpose of developing the student's 5 individualized education program shall include documentation 6 of the student's strengths and weaknesses in Braille skills. 7 Each person assisting in the development of the 8 individualized education program for a student who is 9 functionally blind shall receive information describing the 10 benefits of Braille instruction. The individualized 11 education program for each student who is functionally blind 12 shall specify the appropriate learning medium or media based 13 on the assessment report. 14 (d) To the maximum extent appropriate, the placement 15 shall provide the child with the opportunity to be educated 16 with children who are not disabled; provided that children 17 with disabilities who are recommended to be placed into 18 regular education classrooms are provided with supplementary 19 services to assist the children with disabilities to benefit 20 from the regular classroom instruction and are included on 21 the teacher's regular education class register. Subject to 22 the limitation of the preceding sentence, placement in 23 special classes, separate schools or other removal of the 24 disabled child from the regular educational environment shall 25 occur only when the nature of the severity of the disability 26 is such that education in the regular classes with the use of 27 supplementary aids and services cannot be achieved 28 satisfactorily. The placement of limited English proficiency 29 students with disabilities shall be in non-restrictive 30 environments which provide for integration with non-disabled 31 peers in bilingual classrooms. By January 1993 and annually 32 thereafter, school districts shall report data on students 33 from non-English speaking backgrounds receiving special 34 education and related services in public and private SB566 Engrossed -7- LRB093 10775 NHT 11188 b 1 facilities as prescribed in Section 2-3.30. If there is a 2 disagreement between parties involved regarding the special 3 education placement of any child, either in-state or 4 out-of-state, the placement is subject to impartial due 5 process procedures described in Article 10 of the Rules and 6 Regulations to Govern the Administration and Operation of 7 Special Education. 8 (e) No child who comes from a home in which a language 9 other than English is the principal language used may be 10 assigned to any class or program under this Article until he 11 has been given, in the principal language used by the child 12 and used in his home, tests reasonably related to his 13 cultural environment. All testing and evaluation materials 14 and procedures utilized for evaluation and placement shall 15 not be linguistically, racially or culturally discriminatory. 16 (f) Nothing in this Article shall be construed to 17 require any child to undergo any physical examination or 18 medical treatment whose parents or guardian object thereto on 19 the grounds that such examination or treatment conflicts with 20 his religious beliefs. 21 (g) School boards or their designee shall provide to the 22 parents or guardian of a child prior written notice of any 23 decision (a) proposing to initiate or change, or (b) refusing 24 to initiate or change, the identification, evaluation, or 25 educational placement of the child or the provision of a free 26 appropriate public education to their child, and the reasons 27 therefor. Such written notification shall also inform the 28 parent or guardian of the opportunity to present complaints 29 with respect to any matter relating to the educational 30 placement of the student, or the provision of a free 31 appropriate public education and to have an impartial due 32 process hearing on the complaint. The notice shall inform 33 the parents or guardian in the parents' or guardian's native 34 language, unless it is clearly not feasible to do so, of SB566 Engrossed -8- LRB093 10775 NHT 11188 b 1 their rights and all procedures available pursuant to this 2 Act and federal law 94-142; it shall be the responsibility of 3 the State Superintendent to develop uniform notices setting 4 forth the procedures available under this Act and federal law 5 94-142 to be used by all school boards. The notice shall 6 also inform the parents or guardian of the availability upon 7 request of a list of free or low-cost legal and other 8 relevant services available locally to assist parents or 9 guardians in initiating an impartial due process hearing. 10 Any parent or guardian who is deaf, or does not normally 11 communicate using spoken English, who participates in a 12 meeting with a representative of a local educational agency 13 for the purposes of developing an individualized educational 14 program shall be entitled to the services of an interpreter. 15 (h) A Level I due process hearing, hereinafter referred 16 as the hearing, shall be conducted upon the request of the 17 parents or guardian or local school board by an impartial 18 hearing officer appointed as follows: If the request is made 19 through the local school district, within 5 school days of 20 receipt of the request, the local school district shall 21 forward the request to the State Superintendent. Within 5 22 days after receiving this request of hearing, the State Board 23 of Education shall provide a list of 5 prospective, impartial 24 hearing officers. The State Board of Education, by rule or 25 regulation, shall establish criteria for determining which 26 persons can be included on such a list of prospective hearing 27 officers. No one on the list may be a resident of the school 28 district. No more than 2 of the 5 prospective hearing 29 officers shall be gainfully employed by or administratively 30 connected with any school district, or any joint agreement or 31 cooperative program in which school districts participate. 32 In addition, no more than 2 of the 5 prospective hearing 33 officers shall be gainfully employed by or administratively 34 connected with private providers of special education SB566 Engrossed -9- LRB093 10775 NHT 11188 b 1 services. The State Board of Education shall actively 2 recruit applicants for hearing officer positions. The board 3 and the parents or guardian or their legal representatives 4 within 5 days shall alternately strike one name from the list 5 until only one name remains. The parents or guardian shall 6 have the right to proceed first with the striking. The per 7 diem allowance for the hearing officer shall be established 8 and paid by the State Board of Education. The hearing shall 9 be closed to the public except that the parents or guardian 10 may require that the hearing be public. The hearing officer 11 shall not be an employee of the school district, an employee 12 in any joint agreement or cooperative program in which the 13 district participates, or any other agency or organization 14 that is directly involved in the diagnosis, education or care 15 of the student or the State Board of Education. All impartial 16 hearing officers shall be adequately trained in federal and 17 state law, rules and regulations and case law regarding 18 special education. The State Board of Education shall use 19 resources from within and outside the agency for the purposes 20 of conducting this training. The impartial hearing officer 21 shall have the authority to require additional information or 22 evidence where he or she deems it necessary to make a 23 complete record and may order an independent evaluation of 24 the child, the cost of said evaluation to be paid by the 25 local school district. Such hearing shall not be considered 26 adversary in nature, but shall be directed toward bringing 27 out all facts necessary for the impartial hearing officer to 28 render an informed decision. The State Board of Education 29 shall, with the advice and approval of the Advisory Council 30 on Education of Children with Disabilities, promulgate rules 31 and regulations to establish the qualifications of the 32 hearing officers and the rules and procedure for such 33 hearings. The school district shall present evidence that 34 the special education needs of the child have been SB566 Engrossed -10- LRB093 10775 NHT 11188 b 1 appropriately identified and that the special education 2 program and related services proposed to meet the needs of 3 the child are adequate, appropriate and available. Any party 4 to the hearing shall have the right to: (a) be represented by 5 counsel and be accompanied and advised by individuals with 6 special knowledge or training with respect to the problems of 7 children with disabilities at the party's own expense; (b) 8 present evidence and confront and cross-examine witnesses; 9 (c) prohibit the introduction of any evidence at the hearing 10 that has not been disclosed to that party at least 5 days 11 before the hearing; (d) obtain a written or electronic 12 verbatim record of the hearing; (e) obtain written findings 13 of fact and a written decision. The student shall be allowed 14 to attend the hearing unless the hearing officer finds that 15 attendance is not in the child's best interest or detrimental 16 to the child. The hearing officer shall specify in the 17 findings the reasons for denying attendance by the student. 18 The hearing officer, or the State Superintendent in 19 connection with State level hearings, may subpoena and compel 20 the attendance of witnesses and the production of evidence 21 reasonably necessary to the resolution of the hearing. The 22 subpoena may be issued upon request of any party. The State 23 Board of Education and the school board shall share equally 24 the costs of providing a written or electronic record of the 25 proceedings. Such record shall be transcribed and transmitted 26 to the State Superintendent no later than 10 days after 27 receipt of notice of appeal. The hearing officer shall 28 render a decision and shall submit a copy of the findings of 29 fact and decision to the parent or guardian and to the local 30 school board within 10 school days after the conclusion of 31 the hearing. The hearing officer may continue the hearing in 32 order to obtain additional information, and, at the 33 conclusion of the hearing, shall issue a decision based on 34 the record which specifies the special education and related SB566 Engrossed -11- LRB093 10775 NHT 11188 b 1 services which shall be provided to the child in accordance 2 with the child's needs. The hearing officer's decision shall 3 be binding upon the local school board and the parent unless 4 such decision is appealed pursuant to the provisions of this 5 Section. 6 (i) Any party aggrieved by the decision may appeal the 7 hearing officer's decision to the State Board of Education 8 and shall serve copies of the notice of such appeal on the 9 State Superintendent and on all other parties. The review 10 referred to in this Section shall be known as the Level II 11 review. The State Board of Education shall provide a list of 12 5 prospective, impartial reviewing officers. No reviewing 13 officer shall be an employee of the State Board of Education 14 or gainfully employed by or administratively connected with 15 the school district, joint agreement or cooperative program 16 which is a party to this review. Each person on the list 17 shall be accredited by a national arbitration organization. 18 The per diem allowance for the review officers shall be paid 19 by the State Board of Education and may not exceed $250. All 20 reviewing officers on the list provided by the State Board of 21 Education shall be trained in federal and state law, rules 22 and regulations and case law regarding special education. 23 The State Board of Education shall use resources from within 24 and outside the agency for the purposes of conducting this 25 training. No one on the list may be a resident of the school 26 district. The board and the parents or guardian or other 27 legal representatives within 5 days shall alternately strike 28 one name from the list until only one name remains. The 29 parents or guardian shall have the right to proceed first 30 with the striking. The reviewing officer so selected shall 31 conduct an impartial review of the Level I hearing and may 32 issue subpoenas requiring the attendance of witnesses at such 33 review. The parties to the appeal shall be afforded the 34 opportunity to present oral argument and additional evidence SB566 Engrossed -12- LRB093 10775 NHT 11188 b 1 at the review. Upon completion of the review the reviewing 2 officer shall render a decision and shall provide a copy of 3 the decision to all parties. 4 (j) No later than 30 days after receipt of notice of 5 appeal, a final decision shall be reached and a copy mailed 6 to each of the parties. A reviewing officer may grant 7 specific extensions of time beyond the 30-day deadline at the 8 request of either party. If a Level II hearing is convened 9 the final decision of a Level II hearing officer shall occur 10 no more than 30 days following receipt of a notice of appeal, 11 unless an extension of time is granted by the hearing officer 12 at the request of either party. The State Board of Education 13 shall establish rules and regulations delineating the 14 standards to be used in determining whether the reviewing 15 officer shall grant such extensions. Each hearing and each 16 review involving oral argument must be conducted at a time 17 and place which are reasonably convenient to the parents and 18 the child involved. 19 (k) Any party aggrieved by the decision of the reviewing 20 officer, including the parent or guardian, shall have the 21 right to bring a civil action with respect to the complaint 22 presented pursuant to this Section, which action may be 23 brought in any circuit court of competent jurisdiction within 24 120 days after a copy of the decision is mailed to the party 25 as provided in subsection (j). The civil action provided 26 above shall not be exclusive of any rights or causes of 27 action otherwise available. The commencement of a civil 28 action under subsection (k) of this Section shall operate as 29 a supersedeas. In any action brought under this Section the 30 court shall receive the records of the administrative 31 proceedings, shall hear additional evidence at the request of 32 a party, and basing its decision on the preponderance of the 33 evidence shall grant such relief as the court determines is 34 appropriate. In any instance where a school district SB566 Engrossed -13- LRB093 10775 NHT 11188 b 1 willfully disregards applicable regulations or statutes 2 regarding a child covered by this Article, and which 3 disregard has been detrimental to the child, the school 4 district shall be liable for any reasonable attorney's fees 5 incurred by the parent or guardian in connection with 6 proceedings under this Section. 7 (l) During the pendency of any proceedings conducted 8 pursuant to this Section, unless the State Superintendent of 9 Education, or the school district and the parents or guardian 10 otherwise agree, the student shall remain in the then current 11 educational placement of such student, or if applying for 12 initial admission to the school district, shall, with the 13 consent of the parents or guardian, be placed in the school 14 district program until all such proceedings have been 15 completed. The costs for any special education and related 16 services or placement incurred following 60 school days after 17 the initial request for evaluation shall be borne by the 18 school district if such services or placement are in 19 accordance with the final determination as to the special 20 education and related services or placement which must be 21 provided to the child, provided however that in said 60 day 22 period there have been no delays caused by the child's parent 23 or guardian. 24 (m) Whenever (i) the parents or guardian of a child of 25 the type described in Section 14-1.02 are not known or are 26 unavailable or (ii) the child is a ward of the State residing 27 in a residential facility, a person shall be assigned to 28 serve as surrogate parent for the child in matters relating 29 to the identification, evaluation, and educational placement 30 of the child and the provision of a free appropriate public 31 education to the child. Surrogate parents shall be assigned 32 by the State Superintendent of Education. The State Board of 33 Education shall promulgate rules and regulations establishing 34 qualifications of such persons and their responsibilities and SB566 Engrossed -14- LRB093 10775 NHT 11188 b 1 the procedures to be followed in making such assignments. 2 Such surrogate parents shall not be employees of the school 3 district, an agency created by joint agreement under Section 4 10-22.31, an agency involved in the education or care of the 5 student, or the State Board of Education. For a child who is 6 a ward of the State residing in a residential facility, the 7 surrogate parent may be an employee of a nonpublic agency 8 that provides only non-educational care. Services of any 9 person assigned as surrogate parent shall terminate if the 10 parent or guardian becomes available unless otherwise 11 requested by the parents or guardian. The assignment of a 12 person as surrogate parent at no time supersedes, terminates, 13 or suspends the parents' or guardian's legal authority 14 relative to the child. Any person participating in good 15 faith as surrogate parent on behalf of the child before 16 school officials or a hearing officer shall have immunity 17 from civil or criminal liability that otherwise might result 18 by reason of such participation, except in cases of willful 19 and wanton misconduct. 20 (n) At all stages of the hearing the hearing officer 21 shall require that interpreters be made available by the 22 local school district for persons who are deaf or for persons 23 whose normally spoken language is other than English. 24 (o) Whenever a person refuses to comply with any 25 subpoena issued under this Section, the circuit court of the 26 county in which such hearing is pending, on application of 27 the State Superintendent of Education or the party who 28 requested issuance of the subpoena may compel obedience by 29 attachment proceedings as for contempt, as in a case of 30 disobedience of the requirements of a subpoena from such 31 court for refusal to testify therein. 32 (Source: P.A. 91-784, eff. 6-9-00.) 33 Section 90. The State Mandates Act is amended by adding SB566 Engrossed -15- LRB093 10775 NHT 11188 b 1 Section 8.27 as follows: 2 (30 ILCS 805/8.27 new) 3 Sec. 8.27. Exempt mandate. Notwithstanding Sections 6 4 and 8 of this Act, no reimbursement by the State is required 5 for the implementation of any mandate created by this 6 amendatory Act of the 93rd General Assembly. 7 Section 99. Effective date. This Act takes effect upon 8 becoming law.