HB3845 94TH GENERAL ASSEMBLY

LRB094 07162 NHT 37317 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB3845

Introduced 2/25/2005, by Rep. Ruth Munson

SYNOPSIS AS INTRODUCED:

5 ILCS 100/5-170 new

Amends the Illinois Administrative Procedure Act. Provides that certain rules of the Illinois State Board of Education (ISBE) concerning special education are changed by operation of law. Provides that ISBE may amend the rules only by general rulemaking under the Act.

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 Illinois Administrative Procedure Act is amended by adding Section 5-170 as follows:

(5 ILCS 100/5-170 new)

Sec. 5-170. Notwithstanding any other provision of this Act or any other law to the contrary, the following special education rules of the Illinois State Board of Education (ISBE) in Part 226 of Title 23 of the Illinois Administrative Code are amended to read as follows by operation of law. These rules, as set forth in this Section, take effect on the effective date of this amendatory Act of the 94th General Assembly and may be amended by ISBE only by general rulemaking as provided in Section 5-40 of this Act.

Section 226.75. Definitions.

Assistive Technology Device: Any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability.

Behavioral Intervention: An intervention based on the methods and empirical findings of behavioral science and designed to influence a child's actions or behaviors positively.

Case Study Evaluation: See "Evaluation"

Date of Referral: The date on which written parental consent to complete an evaluation is obtained or provided.

Day: A calendar day, unless otherwise indicated as "business day" or "school day".

Business Day: Monday through Friday, except for federal and State holidays (unless holidays are specifically included in the designation of business days, as at 34 CFR 300.403(d)(1)(ii)).

School Day: Any day including a partial day, during the regular school year that students are in attendance at school for instructional purposes.

Developmental Delay: Delay in physical development, cognitive development, communication development, social or emotional development, or adaptive development (may include children from three through seven years of age).

Disability: Any of the following specific conditions.

Autism: A developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three that adversely affects a child's educational performance. (A child who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the other criteria of this Section are satisfied.) Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance.

Deaf-Blindness: Concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.

Deafness: A hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a child's educational performance.

Emotional Disturbance (includes schizophrenia, but does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance): A condition exhibiting one or more of the following characteristics over an extended period of time and to a marked degree that adversely affects a child's educational performance:

An inability to learn that cannot be explained by intellectual, sensory, or health factors;

An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

Inappropriate types of behavior or feelings under normal circumstances;

A general pervasive mood of anxiety or unhappiness or depression; or

A tendency to develop physical symptoms or fears associated with personal or school problems.

Hearing Impairment: An impairment in hearing, whether permanent or fluctuating, that adversely affects a child's educational performance but that is not included under the definition of deafness.

Mental Retardation: Significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child's educational performance.

Multiple Disabilities: Concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments (does not include deaf-blindness).

Orthopedic Impairment: A severe orthopedic impairment that adversely affects a child's educational performance; includes impairments caused by congenital anomaly (e.g., clubfoot, absence of some member, etc.), impairments caused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).

Other Health Impairment: Limited strength, vitality or alertness, including a heightened sensitivity to environmental stimuli, that results in limited alertness with respect to the educational environment, that:

is due to chronic or acute health problems, such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and

adversely affects a child's educational performance.

Specific Learning Disability: A disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations, including such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. (The term does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.) [105 ILCS 5/14-1.03(a)].

Speech or Language Impairment: A communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child's educational performance.

Traumatic Brain Injury: An acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child's educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative or to brain injuries induced by birth trauma.

Visual Impairment: An impairment in vision that, even with correction, adversely affects a child's educational performance (includes both partial sight and blindness).

Domain: All areas related to the suspected disability that must be considered in the course of designing an evaluation. The domains are health, vision, hearing, social and emotional status, general intelligence, academic performance, communication status, and motor abilities.

Eligible: Identified in accordance with this Part as having any of the disabilities defined in this Section and needing special education and related services.

Equipment (a programmatic definition, not intended to coincide with the definition of "equipment" given in the Program Accounting Manual at 23 Ill. Adm. Code 110.120):

Machinery, utilities, and built-in equipment and any necessary enclosures or structures to house the machinery, utilities, or equipment; and

All other items necessary for the functioning of a particular facility as a facility for the provision of educational services, including items such as instructional equipment and necessary furniture; printed, published and audio-visual instructional materials; telecommunications, sensory, and other technological aids and devices; and books, periodicals, documents, and other related materials.

Evaluation: A series of procedures designed to provide information about a child's suspected disability; the nature and extent of the problems that are or will be adversely affecting his/her educational development; and the type of intervention and assistance needed to alleviate these problems.

Extended School Year Services: Special education and related services that are provided to a child with a disability beyond the normal school year of the public agency in accordance with the child's IEP and at no cost to the parents of the child and meet the requirements of Section 226.750(c) of this Part.

Functional Behavioral Assessment: An assessment process for gathering information regarding the target behavior, its antecedents and consequences, controlling variables, the student's strengths, and the communicative and functional intent of the behavior, for use in developing behavioral interventions.

General Curriculum: The curriculum adopted and/or used by a local school district or by the schools within a district for nondisabled students; the content of the program, as opposed to whether the curriculum is offered in the general or special education setting.

IEP Team: The group of individuals enumerated in Section 226.210 of this Part, except that in three instances the team shall be expanded to include any other qualified professionals whose expertise is necessary to administer and interpret evaluation data and make an informed determination as to whether the child needs special education and related services (i.e., when identifying the specific assessments required in order to evaluate a child's individual needs; when determining whether the child is eligible pursuant to this Part; and when conducting a Manifestation Determination Review).

Independent Educational Evaluation: An evaluation conducted by a qualified examiner who is not employed by the school district responsible for the education of the child in question. (See Section 226.180 of this Part.).

Individualized Education Program (IEP): A written statement for a child with a disability that is developed, reviewed, and revised in a meeting in accordance with Subpart C of this Part.

Individualized Family Service Plan (IFSP): A written plan for providing the early intervention services to a child eligible under 34 CFR 303 and the child's family.

Interim Plan: A portion of an IEP that identifies the services that will be provided as a temporary measure, either when the child's complete IEP cannot be implemented or when the parents and the district have only agreed to a portion of the services that will be needed, and that sets out the specific conditions and timelines to which both the parents and the district have agreed.

Least Restrictive Environment (LRE): The setting that permits a child to be educated with nondisabled children to the maximum extent appropriate. (See Section 226.240(c) of this Part.)

Parent: A natural or adoptive parent of a child; a guardian but not the State if the child is a ward of the State; a person acting in the place of a parent of a child (such as a grandparent or stepparent with whom a child lives); a person who is legally responsible for a child's welfare, or a surrogate parent who has been appointed in accordance with Section 226.550 of this Part. A foster parent is a "parent" when the natural parent's authority to make educational decisions on the child's behalf has been extinguished under State law and the foster parent has an ongoing, long-term parental relationship with the child, is willing to make the educational decisions required of parents under IDEA, and has no interest that would conflict with the interests of the child.

Participating Agency: A State or local agency, other than the local school district, that is or may be legally responsible for providing or funding services to a student who is eligible under this Part.

Personally Identifiable (with reference to information): Including the name of the child, the child's parent, or other family member; the address of the child; a personal identifier, such as the child's Social Security number or student number; or a list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty.

Qualified Personnel: Staff members or other individuals who hold the certificate, license, registration, or credential that is required for the performance of a particular task.

Qualified Bilingual Specialist: An individual who holds the qualifications described in Section 226.800(f) of this Part. Qualified Specialist: An individual who holds the applicable qualifications described in Subpart I of this Part.

Referral: A formal procedure established by a school district which involves a request for a case study evaluation.

Related Services: Transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation (including therapeutic recreation), early identification and assessment of disabilities in children, counseling services (including rehabilitation counseling), orientation and mobility services, and medical services for diagnostic or evaluation purposes; also including school health services, social work services in schools, and parent counseling and training. (See Section 226.310 of this Part.) Related services do not include those performed by licensed physicians or dentists (except for diagnostic or evaluative services or consultation to staff), registered or licensed practical nurses (except when functioning as school nurses), or other medical personnel involved in the provision of ongoing medical care.

Special Education: Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, in hospitals, in institutions, and in other settings, and including instruction in physical education.

Special School: An educational setting which is established by the local school district exclusively to meet the needs of eligible children.

Student Record: See Section 2 of the Illinois School Student Records Act [105 ILCS 10/2].

Supplementary Aids and Services: Aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate.

Transition Services: A coordinated set of activities for a student with a disability that:

Is designed within an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

Is based on the individual student's needs, taking into account the student's preferences and interests; and

Includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, if appropriate, acquisition of daily living skills and functional vocational evaluation.

Section 226.400. Disciplinary Actions.

(a) School personnel may order the removal of an eligible child from his or her current placement for periods of no more than ten consecutive school days each in response to separate incidents of misconduct, as long as such repeated removals do not constitute a pattern based on consideration of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another. In such a case, these removals shall not be considered to constitute a change in placement.

(1) After an eligible child has been removed from his or her placement for ten school days in the same school year, the district shall provide services to the child on any subsequent day(s) of removal.

(2) School personnel, in consultation with the child's special education teacher, shall determine the extent of the services to be provided, which shall be adequate to enable the child to progress appropriately in the general curriculum and advance toward achieving the goals set forth in his or her IEP.

(b) Any removal of a student (i.e., any "suspension") shall be reported immediately to the student's parents, along with a full statement of the reasons for the suspension, a copy of which shall also be given to the school board. The district shall provide the parents notice of their right to request that the district review the suspension decision, as required by Section 10-22.6 of the School Code [105 ILCS 5/10-22.6].

(c) When a district first removes a child for more than ten school days in a school year or initiates a removal that will constitute a change in placement, the district shall, no later than ten business days after the date of such removal, either:

(1) convene an IEP meeting to review and, if necessary, revise the child's existing behavioral intervention plan as appropriate to address the child's behavior; or

(2) convene an IEP meeting to develop a plan for a functional behavioral assessment for the child and, as soon as possible thereafter, develop a behavioral intervention plan for the child in light of that assessment.

(d) Upon any subsequent removal of a child that does not constitute a change in placement, the members of the IEP Team shall review the child's behavioral intervention plan and its implementation. If any one member of the team believes that the plan needs to be modified, the district shall convene an IEP meeting to review the plan and revise it as the team deems appropriate.

(e) A student may be suspended from using the transportation provided by the school district if his or her behavior warrants such a measure. When suspending transportation privileges results in the student's absence from school on a given day, that day shall be considered a day of suspension or removal, and the requirements of Section 10-22.6 of the School Code shall apply.

(f) School personnel may order a change in placement for an eligible child to an interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, up to a maximum of 45 days, if:

(1) the child carries a weapon, as defined at 34 CFR 300.520, to school or to a school function under the jurisdiction of a state or a local school district; or

(2) the child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance, both as defined at 34 CFR 300.520, while at school or a school function under the jurisdiction of a state or a local school district.

(g) No later than ten business days after making the decision to place the child in an alternative setting, the district shall convene an IEP meeting as delineated in subsection (c) of this Section.

(h) The interim alternative educational setting in which a child is placed pursuant to subsection (f) of this Section shall be identified by the child's IEP Team.

(1) The setting shall be selected so as to enable the child to continue to progress in the general curriculum.

(2) While the child is served in the interim alternative educational setting, he or she shall continue to receive the services and modifications set forth in the IEP.

(3) The placement shall include services and modifications designed to address the behavior that resulted in the child's being removed from his or her current educational placement and to prevent that behavior from recurring.

(i) Interim alternative educational settings for students who exhibit behavior that is likely to result in injury to themselves or others are subject to the provisions of Section 226.655 of this Part.

(j) No eligible child shall be expelled for behavior that is a manifestation of the child's disability. If a district is considering expelling an eligible student, the district shall:

(1) Conduct a manifestation determination review as described in Section 226.410 of this Part;

(2) Adhere to the requirement of Section 10-22.6(a) of the School Code regarding meeting with the parent(s); and

(3) Maintain the child in an appropriate placement.

(k) An expulsion constitutes a change in placement and requires revision of the child's IEP in a manner that conforms to the applicable requirements of Subpart C of this Part. Cessation of services to an eligible child is prohibited during a period of expulsion.

Section 226.430. Protection for Children Not Yet Eligible for Special Education.

(a) A child who has not been determined eligible under this Part and who has engaged in behavior that violated any rule or code of conduct of the local school district may assert any of the protections provided for in this Part if the school district had knowledge that the child might be an eligible child before the occurrence of the behavior that precipitated disciplinary action.

(b) A district shall be deemed to have knowledge that a child may be an eligible child if, prior to the incident:

(1) The parent of the child has expressed concern in writing (or orally, if the parent is illiterate in English or has a disability that prevents a written statement) to personnel of the school district that the child is in need of special education and related services;

(2) The behavior or performance of the child demonstrates the need, or a potential need, for such services;

(3) The parent of the child has requested an evaluation of the child pursuant to Sections 300.530 through 300.536 of Part 300 of this Title; or

(4) The child's teacher or another school employee has expressed concern in writing about the behavior or performance of the child to the director of special education or to other district personnel, in accordance with the district's child find or referral procedures.

(c) A district shall not be deemed to have knowledge that a child may be an eligible child if:

(1) the district determined that no evaluation was necessary or conducted an evaluation and determined that the child was not eligible; and

(2) provided written notice to the child's parents of its determination.

(d) If a district does not have knowledge that a child is or may be an eligible child prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures as those applied to children without disabilities engaging in comparable behavior.

(1) When a request is made for an evaluation of a child during the time period when the child is subjected to disciplinary measures, the district shall conduct an evaluation in an expedited manner.

(2) The child shall remain in the educational placement determined by school authorities, which may include suspension or expulsion without educational services, until the evaluation is completed.

(3) The district shall provide special education and related services after developing an IEP if the child is determined to be eligible for special education and related services.

Section 226.540. Consent.

(a) A parent shall be considered to have given consent only when:

(1) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language or other mode of communication;

(2) The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and

(3) The parent understands that his or her granting of consent is voluntary and may be revoked at any time.

(b) A school district may not require parental consent as a condition of any benefit to the parent or the child except for the service or activity for which consent is required.

(c) Parental consent shall be obtained before conducting an initial evaluation of a child. Consent for initial evaluation shall not be construed as consent for initial placement.

(d) Parental consent shall be obtained before conducting any reevaluation of a child. If a parent fails or refuses to provide consent for a required triennial reevaluation within ten days after the district requests it, the district shall request a due process hearing.

(e) Parental consent shall be obtained prior to the initial provision of special education and related services.

(f) Parental consent shall be obtained prior to the use of the parent's private insurance to pay for services required by a child's IEP.

(g) Parental consent shall be obtained for the disclosure of personally identifiable information about a child, consistent with the requirements of the Student Records Act.

(h) Parental consent shall be obtained for the use of an IFSP instead of an IEP.

(i) A parent may revoke consent for any action by the district or cooperative entity serving his or her child that requires parental consent. If a parent desires to revoke consent, he or she may do so either in writing or orally. If the revocation of consent is communicated orally, the district or cooperative entity shall commit the parent's request to writing and provide a copy of this written summary to the parent within five days.

(j) Any revocation of consent is effective immediately, subject to the provisions of subsection (k) of this Section, but is not retroactive, i.e., it does not negate an action that occurred after the consent was given and before it was revoked. For purposes of this subsection (j), a district shall be considered to have given immediate effect to a parent's revocation of consent when it either discontinues the action that is the subject of the revocation prior to its next scheduled occurrence or provides to the parent a written explanation of the timeline for the district's action and the reasons for that timeline. The district or cooperative entity shall ensure that each staff member whose activities are affected by the revocation of consent is promptly informed of the revocation.

(k) If a district disagrees with a parent's revocation of consent, the district may request a due process hearing pursuant to Section 226.605 of this Part.

(1) If the parent's revocation of consent pertains to an evaluation or re-evaluation of the student, the district shall not proceed with the evaluation or re-evaluation during the pendency of due process.

(2) If the parent's revocation of consent pertains to a special education placement for the student that is already in effect, the district's request for a due process hearing shall have the effect of staying that placement, provided that the district submits the request in writing to the State Board of Education in keeping with the provisions of Section 226.615 of this Part and within five business days after the parent's revocation occurred.

Section 226.655. Expedited Due Process Hearing. Requests for expedited due process hearings shall be made in accordance with Section 14-8.02b of the School Code.

(a) The State Board of Education shall arrange for an expedited hearing when:

(1) The local school district requests such a hearing because school personnel maintain that it is dangerous for the child to be in the current placement.

(2) The parent requests such a hearing because the parent disagrees with the district's placement decision when a child is moved to an interim alternative educational setting for a weapon or drug violation.

(3) The parent requests such a hearing because the parent disagrees with the district's determination that a child's behavior was not a manifestation of the child's disability.

(b) During the pendency of an expedited hearing, the child's placement shall be the interim alternative educational setting that was determined appropriate by the IEP Team.

(c) The hearing officer shall determine:

(1) whether the child shall be placed in the proposed alternative educational setting;

(2) In a case where a parent requests a hearing because the parent disagrees with the district's placement decision when a child is moved to an interim alternative educational setting for a weapon or drug violation, whether the interim alternative educational placement:

(A) is selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modification, including those services described in the child's current IEP that will enable the child to meet the goals set out in the IEP; and

(B) includes services and modifications that address the behavior and are designed to prevent the behavior from recurring; or

(3) whether the local school district has demonstrated that the child's behavior was not a manifestation of the child's disability (see Section 226.410 of this Part).

(d) The hearing officer shall consider the following factors in determining whether an interim alternative placement is appropriate:

(1) Whether the local school district has demonstrated by substantial evidence (i.e., beyond a preponderance of the evidence) that maintaining the current placement of the child is substantially likely to result in injury to the child or to others;

(2) Whether the child's current placement is appropriate;

(3) Whether the district has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and

(4) Whether the interim alternative educational setting will permit full implementation of the student's IEP and includes services and modifications designed to prevent the undesired behavior from recurring.

(e) If all the conditions set forth in subsection (d) of this Section are met, the hearing officer shall order a change in the child's placement to an appropriate interim alternative educational setting for not more than 45 days.

(1) This new alternative educational setting shall be identified by the IEP Team as provided in Section 226.400(h) of this Part.

(2) If the district demonstrates that the student is substantially likely to injure himself or herself or others if returned to the placement that was used prior to the student's removal, the hearing officer may order that the student remain in the interim setting for subsequent periods of up to 45 days each.

(f) An expedited hearing shall result in a decision within ten school days after the request for the hearing, unless the parents and the local school district agree otherwise.