093_SB0566enr SB566 Enrolled 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 Enrolled -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 Enrolled -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 Enrolled -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 the services they provide. This 32 notification shall include without limitation information on 33 school services, school admissions criteria, and school 34 contact information. SB566 Enrolled -5- LRB093 10775 NHT 11188 b 1 If the student may be eligible to participate in the 2 Home-Based Support Services Program for Mentally Disabled 3 Adults authorized under the Developmental Disability and 4 Mental Disability Services Act upon becoming an adult, the 5 student's individualized education program shall include 6 plans for (i) determining the student's eligibility for those 7 home-based services, (ii) enrolling the student in the 8 program of home-based services, and (iii) developing a plan 9 for the student's most effective use of the home-based 10 services after the student becomes an adult and no longer 11 receives special educational services under this Article. 12 The plans developed under this paragraph shall include 13 specific actions to be taken by specified individuals, 14 agencies, or officials. 15 (c) In the development of the individualized education 16 program for a student who is functionally blind, it shall be 17 presumed that proficiency in Braille reading and writing is 18 essential for the student's satisfactory educational 19 progress. For purposes of this subsection, the State Board 20 of Education shall determine the criteria for a student to be 21 classified as functionally blind. Students who are not 22 currently identified as functionally blind who are also 23 entitled to Braille instruction include: (i) those whose 24 vision loss is so severe that they are unable to read and 25 write at a level comparable to their peers solely through the 26 use of vision, and (ii) those who show evidence of 27 progressive vision loss that may result in functional 28 blindness. Each student who is functionally blind shall be 29 entitled to Braille reading and writing instruction that is 30 sufficient to enable the student to communicate with the same 31 level of proficiency as other students of comparable ability. 32 Instruction should be provided to the extent that the student 33 is physically and cognitively able to use Braille. Braille 34 instruction may be used in combination with other special SB566 Enrolled -6- LRB093 10775 NHT 11188 b 1 education services appropriate to the student's educational 2 needs. The assessment of each student who is functionally 3 blind for the purpose of developing the student's 4 individualized education program shall include documentation 5 of the student's strengths and weaknesses in Braille skills. 6 Each person assisting in the development of the 7 individualized education program for a student who is 8 functionally blind shall receive information describing the 9 benefits of Braille instruction. The individualized 10 education program for each student who is functionally blind 11 shall specify the appropriate learning medium or media based 12 on the assessment report. 13 (d) To the maximum extent appropriate, the placement 14 shall provide the child with the opportunity to be educated 15 with children who are not disabled; provided that children 16 with disabilities who are recommended to be placed into 17 regular education classrooms are provided with supplementary 18 services to assist the children with disabilities to benefit 19 from the regular classroom instruction and are included on 20 the teacher's regular education class register. Subject to 21 the limitation of the preceding sentence, placement in 22 special classes, separate schools or other removal of the 23 disabled child from the regular educational environment shall 24 occur only when the nature of the severity of the disability 25 is such that education in the regular classes with the use of 26 supplementary aids and services cannot be achieved 27 satisfactorily. The placement of limited English proficiency 28 students with disabilities shall be in non-restrictive 29 environments which provide for integration with non-disabled 30 peers in bilingual classrooms. By January 1993 and annually 31 thereafter, school districts shall report data on students 32 from non-English speaking backgrounds receiving special 33 education and related services in public and private 34 facilities as prescribed in Section 2-3.30. If there is a SB566 Enrolled -7- LRB093 10775 NHT 11188 b 1 disagreement between parties involved regarding the special 2 education placement of any child, either in-state or 3 out-of-state, the placement is subject to impartial due 4 process procedures described in Article 10 of the Rules and 5 Regulations to Govern the Administration and Operation of 6 Special Education. 7 (e) No child who comes from a home in which a language 8 other than English is the principal language used may be 9 assigned to any class or program under this Article until he 10 has been given, in the principal language used by the child 11 and used in his home, tests reasonably related to his 12 cultural environment. All testing and evaluation materials 13 and procedures utilized for evaluation and placement shall 14 not be linguistically, racially or culturally discriminatory. 15 (f) Nothing in this Article shall be construed to 16 require any child to undergo any physical examination or 17 medical treatment whose parents or guardian object thereto on 18 the grounds that such examination or treatment conflicts with 19 his religious beliefs. 20 (g) School boards or their designee shall provide to the 21 parents or guardian of a child prior written notice of any 22 decision (a) proposing to initiate or change, or (b) refusing 23 to initiate or change, the identification, evaluation, or 24 educational placement of the child or the provision of a free 25 appropriate public education to their child, and the reasons 26 therefor. Such written notification shall also inform the 27 parent or guardian of the opportunity to present complaints 28 with respect to any matter relating to the educational 29 placement of the student, or the provision of a free 30 appropriate public education and to have an impartial due 31 process hearing on the complaint. The notice shall inform 32 the parents or guardian in the parents' or guardian's native 33 language, unless it is clearly not feasible to do so, of 34 their rights and all procedures available pursuant to this SB566 Enrolled -8- LRB093 10775 NHT 11188 b 1 Act and federal law 94-142; it shall be the responsibility of 2 the State Superintendent to develop uniform notices setting 3 forth the procedures available under this Act and federal law 4 94-142 to be used by all school boards. The notice shall 5 also inform the parents or guardian of the availability upon 6 request of a list of free or low-cost legal and other 7 relevant services available locally to assist parents or 8 guardians in initiating an impartial due process hearing. 9 Any parent or guardian who is deaf, or does not normally 10 communicate using spoken English, who participates in a 11 meeting with a representative of a local educational agency 12 for the purposes of developing an individualized educational 13 program shall be entitled to the services of an interpreter. 14 (h) A Level I due process hearing, hereinafter referred 15 as the hearing, shall be conducted upon the request of the 16 parents or guardian or local school board by an impartial 17 hearing officer appointed as follows: If the request is made 18 through the local school district, within 5 school days of 19 receipt of the request, the local school district shall 20 forward the request to the State Superintendent. Within 5 21 days after receiving this request of hearing, the State Board 22 of Education shall provide a list of 5 prospective, impartial 23 hearing officers. The State Board of Education, by rule or 24 regulation, shall establish criteria for determining which 25 persons can be included on such a list of prospective hearing 26 officers. No one on the list may be a resident of the school 27 district. No more than 2 of the 5 prospective hearing 28 officers shall be gainfully employed by or administratively 29 connected with any school district, or any joint agreement or 30 cooperative program in which school districts participate. 31 In addition, no more than 2 of the 5 prospective hearing 32 officers shall be gainfully employed by or administratively 33 connected with private providers of special education 34 services. The State Board of Education shall actively SB566 Enrolled -9- LRB093 10775 NHT 11188 b 1 recruit applicants for hearing officer positions. The board 2 and the parents or guardian or their legal representatives 3 within 5 days shall alternately strike one name from the list 4 until only one name remains. The parents or guardian shall 5 have the right to proceed first with the striking. The per 6 diem allowance for the hearing officer shall be established 7 and paid by the State Board of Education. The hearing shall 8 be closed to the public except that the parents or guardian 9 may require that the hearing be public. The hearing officer 10 shall not be an employee of the school district, an employee 11 in any joint agreement or cooperative program in which the 12 district participates, or any other agency or organization 13 that is directly involved in the diagnosis, education or care 14 of the student or the State Board of Education. All impartial 15 hearing officers shall be adequately trained in federal and 16 state law, rules and regulations and case law regarding 17 special education. The State Board of Education shall use 18 resources from within and outside the agency for the purposes 19 of conducting this training. The impartial hearing officer 20 shall have the authority to require additional information or 21 evidence where he or she deems it necessary to make a 22 complete record and may order an independent evaluation of 23 the child, the cost of said evaluation to be paid by the 24 local school district. Such hearing shall not be considered 25 adversary in nature, but shall be directed toward bringing 26 out all facts necessary for the impartial hearing officer to 27 render an informed decision. The State Board of Education 28 shall, with the advice and approval of the Advisory Council 29 on Education of Children with Disabilities, promulgate rules 30 and regulations to establish the qualifications of the 31 hearing officers and the rules and procedure for such 32 hearings. The school district shall present evidence that 33 the special education needs of the child have been 34 appropriately identified and that the special education SB566 Enrolled -10- LRB093 10775 NHT 11188 b 1 program and related services proposed to meet the needs of 2 the child are adequate, appropriate and available. Any party 3 to the hearing shall have the right to: (a) be represented by 4 counsel and be accompanied and advised by individuals with 5 special knowledge or training with respect to the problems of 6 children with disabilities at the party's own expense; (b) 7 present evidence and confront and cross-examine witnesses; 8 (c) prohibit the introduction of any evidence at the hearing 9 that has not been disclosed to that party at least 5 days 10 before the hearing; (d) obtain a written or electronic 11 verbatim record of the hearing; (e) obtain written findings 12 of fact and a written decision. The student shall be allowed 13 to attend the hearing unless the hearing officer finds that 14 attendance is not in the child's best interest or detrimental 15 to the child. The hearing officer shall specify in the 16 findings the reasons for denying attendance by the student. 17 The hearing officer, or the State Superintendent in 18 connection with State level hearings, may subpoena and compel 19 the attendance of witnesses and the production of evidence 20 reasonably necessary to the resolution of the hearing. The 21 subpoena may be issued upon request of any party. The State 22 Board of Education and the school board shall share equally 23 the costs of providing a written or electronic record of the 24 proceedings. Such record shall be transcribed and transmitted 25 to the State Superintendent no later than 10 days after 26 receipt of notice of appeal. The hearing officer shall 27 render a decision and shall submit a copy of the findings of 28 fact and decision to the parent or guardian and to the local 29 school board within 10 school days after the conclusion of 30 the hearing. The hearing officer may continue the hearing in 31 order to obtain additional information, and, at the 32 conclusion of the hearing, shall issue a decision based on 33 the record which specifies the special education and related 34 services which shall be provided to the child in accordance SB566 Enrolled -11- LRB093 10775 NHT 11188 b 1 with the child's needs. The hearing officer's decision shall 2 be binding upon the local school board and the parent unless 3 such decision is appealed pursuant to the provisions of this 4 Section. 5 (i) Any party aggrieved by the decision may appeal the 6 hearing officer's decision to the State Board of Education 7 and shall serve copies of the notice of such appeal on the 8 State Superintendent and on all other parties. The review 9 referred to in this Section shall be known as the Level II 10 review. The State Board of Education shall provide a list of 11 5 prospective, impartial reviewing officers. No reviewing 12 officer shall be an employee of the State Board of Education 13 or gainfully employed by or administratively connected with 14 the school district, joint agreement or cooperative program 15 which is a party to this review. Each person on the list 16 shall be accredited by a national arbitration organization. 17 The per diem allowance for the review officers shall be paid 18 by the State Board of Education and may not exceed $250. All 19 reviewing officers on the list provided by the State Board of 20 Education shall be trained in federal and state law, rules 21 and regulations and case law regarding special education. 22 The State Board of Education shall use resources from within 23 and outside the agency for the purposes of conducting this 24 training. No one on the list may be a resident of the school 25 district. The board and the parents or guardian or other 26 legal representatives within 5 days shall alternately strike 27 one name from the list until only one name remains. The 28 parents or guardian shall have the right to proceed first 29 with the striking. The reviewing officer so selected shall 30 conduct an impartial review of the Level I hearing and may 31 issue subpoenas requiring the attendance of witnesses at such 32 review. The parties to the appeal shall be afforded the 33 opportunity to present oral argument and additional evidence 34 at the review. Upon completion of the review the reviewing SB566 Enrolled -12- LRB093 10775 NHT 11188 b 1 officer shall render a decision and shall provide a copy of 2 the decision to all parties. 3 (j) No later than 30 days after receipt of notice of 4 appeal, a final decision shall be reached and a copy mailed 5 to each of the parties. A reviewing officer may grant 6 specific extensions of time beyond the 30-day deadline at the 7 request of either party. If a Level II hearing is convened 8 the final decision of a Level II hearing officer shall occur 9 no more than 30 days following receipt of a notice of appeal, 10 unless an extension of time is granted by the hearing officer 11 at the request of either party. The State Board of Education 12 shall establish rules and regulations delineating the 13 standards to be used in determining whether the reviewing 14 officer shall grant such extensions. Each hearing and each 15 review involving oral argument must be conducted at a time 16 and place which are reasonably convenient to the parents and 17 the child involved. 18 (k) Any party aggrieved by the decision of the reviewing 19 officer, including the parent or guardian, shall have the 20 right to bring a civil action with respect to the complaint 21 presented pursuant to this Section, which action may be 22 brought in any circuit court of competent jurisdiction within 23 120 days after a copy of the decision is mailed to the party 24 as provided in subsection (j). The civil action provided 25 above shall not be exclusive of any rights or causes of 26 action otherwise available. The commencement of a civil 27 action under subsection (k) of this Section shall operate as 28 a supersedeas. In any action brought under this Section the 29 court shall receive the records of the administrative 30 proceedings, shall hear additional evidence at the request of 31 a party, and basing its decision on the preponderance of the 32 evidence shall grant such relief as the court determines is 33 appropriate. In any instance where a school district 34 willfully disregards applicable regulations or statutes SB566 Enrolled -13- LRB093 10775 NHT 11188 b 1 regarding a child covered by this Article, and which 2 disregard has been detrimental to the child, the school 3 district shall be liable for any reasonable attorney's fees 4 incurred by the parent or guardian in connection with 5 proceedings under this Section. 6 (l) During the pendency of any proceedings conducted 7 pursuant to this Section, unless the State Superintendent of 8 Education, or the school district and the parents or guardian 9 otherwise agree, the student shall remain in the then current 10 educational placement of such student, or if applying for 11 initial admission to the school district, shall, with the 12 consent of the parents or guardian, be placed in the school 13 district program until all such proceedings have been 14 completed. The costs for any special education and related 15 services or placement incurred following 60 school days after 16 the initial request for evaluation shall be borne by the 17 school district if such services or placement are in 18 accordance with the final determination as to the special 19 education and related services or placement which must be 20 provided to the child, provided however that in said 60 day 21 period there have been no delays caused by the child's parent 22 or guardian. 23 (m) Whenever (i) the parents or guardian of a child of 24 the type described in Section 14-1.02 are not known or are 25 unavailable or (ii) the child is a ward of the State residing 26 in a residential facility, a person shall be assigned to 27 serve as surrogate parent for the child in matters relating 28 to the identification, evaluation, and educational placement 29 of the child and the provision of a free appropriate public 30 education to the child. Surrogate parents shall be assigned 31 by the State Superintendent of Education. The State Board of 32 Education shall promulgate rules and regulations establishing 33 qualifications of such persons and their responsibilities and 34 the procedures to be followed in making such assignments. SB566 Enrolled -14- LRB093 10775 NHT 11188 b 1 Such surrogate parents shall not be employees of the school 2 district, an agency created by joint agreement under Section 3 10-22.31, an agency involved in the education or care of the 4 student, or the State Board of Education. For a child who is 5 a ward of the State residing in a residential facility, the 6 surrogate parent may be an employee of a nonpublic agency 7 that provides only non-educational care. Services of any 8 person assigned as surrogate parent shall terminate if the 9 parent or guardian becomes available unless otherwise 10 requested by the parents or guardian. The assignment of a 11 person as surrogate parent at no time supersedes, terminates, 12 or suspends the parents' or guardian's legal authority 13 relative to the child. Any person participating in good 14 faith as surrogate parent on behalf of the child before 15 school officials or a hearing officer shall have immunity 16 from civil or criminal liability that otherwise might result 17 by reason of such participation, except in cases of willful 18 and wanton misconduct. 19 (n) At all stages of the hearing the hearing officer 20 shall require that interpreters be made available by the 21 local school district for persons who are deaf or for persons 22 whose normally spoken language is other than English. 23 (o) Whenever a person refuses to comply with any 24 subpoena issued under this Section, the circuit court of the 25 county in which such hearing is pending, on application of 26 the State Superintendent of Education or the party who 27 requested issuance of the subpoena may compel obedience by 28 attachment proceedings as for contempt, as in a case of 29 disobedience of the requirements of a subpoena from such 30 court for refusal to testify therein. 31 (Source: P.A. 91-784, eff. 6-9-00.) 32 Section 90. The State Mandates Act is amended by adding 33 Section 8.27 as follows: SB566 Enrolled -15- LRB093 10775 NHT 11188 b 1 (30 ILCS 805/8.27 new) 2 Sec. 8.27. Exempt mandate. Notwithstanding Sections 6 3 and 8 of this Act, no reimbursement by the State is required 4 for the implementation of any mandate created by this 5 amendatory Act of the 93rd General Assembly. 6 Section 99. Effective date. This Act takes effect upon 7 becoming law.