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Public Act 102-1072 | ||||
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AN ACT concerning education.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The School Code is amended by changing Sections | ||||
14-6.01, 14-8.02, and 14-8.02a as follows:
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(105 ILCS 5/14-6.01) (from Ch. 122, par. 14-6.01)
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Sec. 14-6.01. Powers and duties of school boards. School | ||||
boards of
one or more school districts establishing and | ||||
maintaining any of the
educational facilities described in | ||||
this Article shall, in connection
therewith, exercise similar | ||||
powers and duties as are prescribed by law
for the | ||||
establishment, maintenance, and management of other recognized
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educational facilities. Such school boards shall include only | ||||
eligible
children in the program and shall comply with all the | ||||
requirements of
this Article and all rules and regulations | ||||
established by the State
Board of Education. Such school | ||||
boards shall accept in part-time
attendance children with | ||||
disabilities of the types
described in Sections
14-1.02 | ||||
through 14-1.07 who are enrolled in nonpublic schools. A
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request for part-time attendance must be submitted by a parent | ||||
or
guardian of the child with a disability and may be made
only | ||||
to those public
schools located in the district where the | ||||
child attending the nonpublic
school resides; however, nothing |
in this Section shall be construed as
prohibiting an agreement | ||
between the district where the child resides
and another | ||
public school district to provide special educational
services | ||
if such an arrangement is deemed more convenient and
| ||
economical. Special education and related services must be | ||
provided in accordance with the student's IEP no later than 10 | ||
school attendance days after notice is provided to the parents | ||
pursuant to Section 300.503 of Title 34 of the Code of Federal | ||
Regulations and implementing rules adopted by the State Board | ||
of Education. Transportation for students in part time | ||
attendance shall be
provided only if required in the child's | ||
individualized educational program
on the basis of the child's | ||
disabling condition or as the
special education
program | ||
location may require.
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Beginning with the 2019-2020 school year, a school board | ||
shall post on its Internet website, if any, and incorporate | ||
into its student handbook or newsletter notice that students | ||
with disabilities who do not qualify for an individualized | ||
education program, as required by the federal Individuals with | ||
Disabilities Education Act and implementing provisions of this | ||
Code, may qualify for services under Section 504 of the | ||
federal Rehabilitation Act of 1973 if the child (i) has a | ||
physical or mental impairment that substantially limits one or | ||
more major life activities, (ii) has a record of a physical or | ||
mental impairment, or (iii) is regarded as having a physical | ||
or mental impairment. Such notice shall identify the location |
and
phone number of the office or agent of the school district | ||
to whom
inquiries should be directed regarding the | ||
identification, assessment , and
placement of such children. | ||
The notice shall also state that any parent who is deaf or does | ||
not typically communicate using spoken English and who | ||
participates in a Section 504 meeting with a representative of | ||
a local educational agency shall be entitled to the services | ||
of an interpreter.
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For a school district organized under Article 34 only, | ||
beginning with the 2019-2020 school year, the school district | ||
shall, in collaboration with its primary office overseeing | ||
special education, publish on the school district's publicly | ||
available website any proposed changes to its special | ||
education policies, directives, guidelines, or procedures that | ||
impact the provision of educational or related services to | ||
students with disabilities or the procedural safeguards | ||
afforded to students with disabilities or their parents or | ||
guardians made by the school district or school board. Any | ||
policy, directive, guideline, or procedural change that | ||
impacts those provisions or safeguards that is authorized by | ||
the school district's primary office overseeing special | ||
education or any other administrative office of the school | ||
district must be published on the school district's publicly | ||
available website no later than 45 days before the adoption of | ||
that change. Any policy directive, guideline, or procedural | ||
change that impacts those provisions or safeguards that is |
authorized by the school board must be published on the school | ||
district's publicly available website no later than 30 days | ||
before the date of presentation to the school board for | ||
adoption. The school district's website must allow for virtual | ||
public comments on proposed special education policy, | ||
directive, guideline, or procedural changes that impact the | ||
provision of educational or related services to students with | ||
disabilities or the procedural safeguards afforded to students | ||
with disabilities or their parents or guardians from the date | ||
of the notification of the proposed change on the website | ||
until the date the change is adopted by the school district or | ||
until the date the change is presented to the school board for | ||
adoption. After the period for public comment is closed, the | ||
school district must maintain all public comments for a period | ||
of not less than 2 years from the date the special education | ||
change is adopted. The public comments are subject to the | ||
Freedom of Information Act. The school board shall, at a | ||
minimum, advertise the notice of the change and availability | ||
for public comment on its website. The State Board of | ||
Education may add additional reporting requirements for the | ||
district beyond policy, directive, guideline, or procedural | ||
changes that impact the provision of educational or related | ||
services to students with disabilities or the procedural | ||
safeguards afforded to students with disabilities or their | ||
parents or guardians if the State Board determines it is in the | ||
best interest of the students enrolled in the district |
receiving special education services. | ||
School boards shall immediately provide upon request by | ||
any person
written materials and other information that | ||
indicates the specific
policies, procedures, rules and | ||
regulations regarding the identification,
evaluation or | ||
educational placement of children with
disabilities under | ||
Section
14-8.02 of the School Code. Such information shall | ||
include information
regarding all rights and entitlements of | ||
such children under this Code, and
of the opportunity to | ||
present complaints with respect to any matter
relating to | ||
educational placement of the student, or the provision of a
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free appropriate public education and to have an impartial due | ||
process
hearing on the complaint. The notice shall inform the | ||
parents or guardian
in the parents' or guardian's native | ||
language, unless it is clearly not
feasible to do so, of their | ||
rights and all procedures available pursuant to
this Act and | ||
federal Public Law 94-142; it shall be the responsibility of
| ||
the State Superintendent to develop uniform notices setting | ||
forth the
procedures available under this Act and federal | ||
Public Law 94-142, as
amended, to be used by all school boards. | ||
The notice shall also inform the
parents or guardian of the | ||
availability upon request of a list of free or
low-cost legal | ||
and other relevant services available locally to assist
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parents or guardians in exercising rights or entitlements | ||
under this Code. For a school district organized under Article | ||
34 only, the school district must make the entirety of its |
special education Procedural Manual and any other guidance | ||
documents pertaining to special education publicly available, | ||
in print and on the school district's website, in both English | ||
and Spanish. Upon request, the school district must make the | ||
Procedural Manual and other guidance documents available in | ||
print in any other language and accessible for individuals | ||
with disabilities.
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Any parent or guardian who is deaf, or does not normally | ||
communicate
using spoken English, who participates in a | ||
meeting with a representative
of a local educational agency | ||
for the purposes of developing an
individualized educational | ||
program shall be entitled to the services of
an interpreter.
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No student with a disability or, in a school district | ||
organized under Article 34 of this Code, child with a learning | ||
disability may be denied promotion,
graduation or a general
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diploma on the basis of failing a minimal competency test when | ||
such failure
can be directly related to the disabling
| ||
condition of the student. For the
purpose of this Act, | ||
"minimal competency testing" is defined as tests which
are | ||
constructed to measure the acquisition of skills to or beyond | ||
a certain
defined standard.
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Effective July 1, 1966, high school districts are | ||
financially
responsible for the education of pupils with | ||
disabilities who
are residents in their
districts when such | ||
pupils have reached age 15 but may admit
children with | ||
disabilities into special educational facilities without
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regard to graduation
from the eighth grade after such pupils | ||
have reached the age of 14 1/2 years.
Upon a pupil with a | ||
disability attaining the age of 14 1/2 years,
it shall be
the | ||
duty of the elementary school district in which the pupil | ||
resides to
notify the high school district in which the pupil | ||
resides of the pupil's
current eligibility for special | ||
education services, of the pupil's current
program, and of all | ||
evaluation data upon which the current program is
based. After | ||
an examination of that information the high school district
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may accept the current placement and all subsequent timelines | ||
shall be
governed by the current individualized educational | ||
program; or the high
school district may elect to conduct its | ||
own evaluation and
multidisciplinary staff conference and | ||
formulate its own individualized
educational program, in which | ||
case the procedures and timelines contained
in Section 14-8.02 | ||
shall apply.
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(Source: P.A. 100-201, eff. 8-18-17; 100-1112, eff. 8-28-18; | ||
101-515, eff. 8-23-19.)
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(105 ILCS 5/14-8.02) (from Ch. 122, par. 14-8.02)
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(Text of Section before amendment by P.A. 102-199 ) | ||
Sec. 14-8.02. Identification, evaluation, and placement of | ||
children.
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(a) The State Board of Education shall make rules under | ||
which local school
boards shall determine the eligibility of | ||
children to receive special
education. Such rules shall ensure |
that a free appropriate public
education be available to all | ||
children with disabilities as
defined in
Section 14-1.02. The | ||
State Board of Education shall require local school
districts | ||
to administer non-discriminatory procedures or tests to
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English learners coming from homes in which a language
other | ||
than English is used to determine their eligibility to receive | ||
special
education. The placement of low English proficiency | ||
students in special
education programs and facilities shall be | ||
made in accordance with the test
results reflecting the | ||
student's linguistic, cultural and special education
needs. | ||
For purposes of determining the eligibility of children the | ||
State
Board of Education shall include in the rules | ||
definitions of "case study",
"staff conference", | ||
"individualized educational program", and "qualified
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specialist" appropriate to each category of children with
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disabilities as defined in
this Article. For purposes of | ||
determining the eligibility of children from
homes in which a | ||
language other than English is used, the State Board of
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Education shall include in the rules
definitions for | ||
"qualified bilingual specialists" and "linguistically and
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culturally appropriate individualized educational programs". | ||
For purposes of this
Section, as well as Sections 14-8.02a, | ||
14-8.02b, and 14-8.02c of this Code,
"parent" means a parent | ||
as defined in the federal Individuals with Disabilities | ||
Education Act (20 U.S.C. 1401(23)).
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(b) No child shall be eligible for special education |
facilities except
with a carefully completed case study fully | ||
reviewed by professional
personnel in a multidisciplinary | ||
staff conference and only upon the
recommendation of qualified | ||
specialists or a qualified bilingual specialist, if
available. | ||
At the conclusion of the multidisciplinary staff conference, | ||
the
parent of the child shall be given a copy of the | ||
multidisciplinary
conference summary report and | ||
recommendations, which includes options
considered, and be | ||
informed of his or her right to obtain an independent | ||
educational
evaluation if he or she disagrees with the | ||
evaluation findings conducted or obtained
by the school | ||
district. If the school district's evaluation is shown to be
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inappropriate, the school district shall reimburse the parent | ||
for the cost of
the independent evaluation. The State Board of | ||
Education shall, with advice
from the State Advisory Council | ||
on Education of Children with
Disabilities on the
inclusion of | ||
specific independent educational evaluators, prepare a list of
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suggested independent educational evaluators. The State Board | ||
of Education
shall include on the list clinical psychologists | ||
licensed pursuant to the
Clinical Psychologist Licensing Act. | ||
Such psychologists shall not be paid fees
in excess of the | ||
amount that would be received by a school psychologist for
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performing the same services. The State Board of Education | ||
shall supply school
districts with such list and make the list | ||
available to parents at their
request. School districts shall | ||
make the list available to parents at the time
they are |
informed of their right to obtain an independent educational
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evaluation. However, the school district may initiate an | ||
impartial
due process hearing under this Section within 5 days | ||
of any written parent
request for an independent educational | ||
evaluation to show that
its evaluation is appropriate. If the | ||
final decision is that the evaluation
is appropriate, the | ||
parent still has a right to an independent educational
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evaluation, but not at public expense. An independent | ||
educational
evaluation at public expense must be completed | ||
within 30 days of a parent
written request unless the school | ||
district initiates an
impartial due process hearing or the | ||
parent or school district
offers reasonable grounds to show | ||
that such 30-day time period should be
extended. If the due | ||
process hearing decision indicates that the parent is entitled | ||
to an independent educational evaluation, it must be
completed | ||
within 30 days of the decision unless the parent or
the school | ||
district offers reasonable grounds to show that such 30-day
| ||
period should be extended. If a parent disagrees with the | ||
summary report or
recommendations of the multidisciplinary | ||
conference or the findings of any
educational evaluation which | ||
results therefrom, the school
district shall not proceed with | ||
a placement based upon such evaluation and
the child shall | ||
remain in his or her regular classroom setting.
No child shall | ||
be eligible for admission to a
special class for children with | ||
a mental disability who are educable or for children with a | ||
mental disability who are trainable except with a |
psychological evaluation
and
recommendation by a school | ||
psychologist. Consent shall be obtained from
the parent of a | ||
child before any evaluation is conducted.
If consent is not | ||
given by the parent or if the parent disagrees with the | ||
findings of the evaluation, then the school
district may | ||
initiate an impartial due process hearing under this Section.
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The school district may evaluate the child if that is the | ||
decision
resulting from the impartial due process hearing and | ||
the decision is not
appealed or if the decision is affirmed on | ||
appeal.
The determination of eligibility shall be made and the | ||
IEP meeting shall be completed within 60 school days
from the | ||
date of written parental consent. In those instances when | ||
written parental consent is obtained with fewer than 60 pupil | ||
attendance days left in the school year,
the eligibility | ||
determination shall be made and the IEP meeting shall be | ||
completed prior to the first day of the
following school year. | ||
Special education and related services must be provided in | ||
accordance with the student's IEP no later than 10 school | ||
attendance days after notice is provided to the parents | ||
pursuant to Section 300.503 of Title 34 of the Code of Federal | ||
Regulations and implementing rules adopted by the State Board | ||
of Education. The appropriate
program pursuant to the | ||
individualized educational program of students
whose native | ||
tongue is a language other than English shall reflect the
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special education, cultural and linguistic needs. No later | ||
than September
1, 1993, the State Board of Education shall |
establish standards for the
development, implementation and | ||
monitoring of appropriate bilingual special
individualized | ||
educational programs. The State Board of Education shall
| ||
further incorporate appropriate monitoring procedures to | ||
verify implementation
of these standards. The district shall | ||
indicate to the parent and
the State Board of Education the | ||
nature of the services the child will receive
for the regular | ||
school term while awaiting waiting placement in the | ||
appropriate special
education class. At the child's initial | ||
IEP meeting and at each annual review meeting, the child's IEP | ||
team shall provide the child's parent or guardian with a | ||
written notification that informs the parent or guardian that | ||
the IEP team is required to consider whether the child | ||
requires assistive technology in order to receive free, | ||
appropriate public education. The notification must also | ||
include a toll-free telephone number and internet address for | ||
the State's assistive technology program.
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If the child is deaf, hard of hearing, blind, or visually | ||
impaired or has an orthopedic impairment or physical | ||
disability and
he or she might be eligible to receive services | ||
from the Illinois School for
the Deaf, the Illinois School for | ||
the Visually Impaired, or the Illinois Center for | ||
Rehabilitation and Education-Roosevelt, the school
district | ||
shall notify the parents, in writing, of the existence of
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these schools
and the services
they provide and shall make a | ||
reasonable effort to inform the parents of the existence of |
other, local schools that provide similar services and the | ||
services that these other schools provide. This notification
| ||
shall
include without limitation information on school | ||
services, school
admissions criteria, and school contact | ||
information.
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In the development of the individualized education program | ||
for a student who has a disability on the autism spectrum | ||
(which includes autistic disorder, Asperger's disorder, | ||
pervasive developmental disorder not otherwise specified, | ||
childhood disintegrative disorder, and Rett Syndrome, as | ||
defined in the Diagnostic and Statistical Manual of Mental | ||
Disorders, fourth edition (DSM-IV, 2000)), the IEP team shall | ||
consider all of the following factors: | ||
(1) The verbal and nonverbal communication needs of | ||
the child. | ||
(2) The need to develop social interaction skills and | ||
proficiencies. | ||
(3) The needs resulting from the child's unusual | ||
responses to sensory experiences. | ||
(4) The needs resulting from resistance to | ||
environmental change or change in daily routines. | ||
(5) The needs resulting from engagement in repetitive | ||
activities and stereotyped movements. | ||
(6) The need for any positive behavioral | ||
interventions, strategies, and supports to address any | ||
behavioral difficulties resulting from autism spectrum |
disorder. | ||
(7) Other needs resulting from the child's disability | ||
that impact progress in the general curriculum, including | ||
social and emotional development. | ||
Public Act 95-257
does not create any new entitlement to a | ||
service, program, or benefit, but must not affect any | ||
entitlement to a service, program, or benefit created by any | ||
other law.
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If the student may be eligible to participate in the | ||
Home-Based Support
Services Program for Adults with Mental | ||
Disabilities authorized under the
Developmental Disability and | ||
Mental Disability Services Act upon becoming an
adult, the | ||
student's individualized education program shall include plans | ||
for
(i) determining the student's eligibility for those | ||
home-based services, (ii)
enrolling the student in the program | ||
of home-based services, and (iii)
developing a plan for the | ||
student's most effective use of the home-based
services after | ||
the student becomes an adult and no longer receives special
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educational services under this Article. The plans developed | ||
under this
paragraph shall include specific actions to be | ||
taken by specified individuals,
agencies, or officials.
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(c) In the development of the individualized education | ||
program for a
student who is functionally blind, it shall be | ||
presumed that proficiency in
Braille reading and writing is | ||
essential for the student's satisfactory
educational progress. | ||
For purposes of this subsection, the State Board of
Education |
shall determine the criteria for a student to be classified as
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functionally blind. Students who are not currently identified | ||
as
functionally blind who are also entitled to Braille | ||
instruction include:
(i) those whose vision loss is so severe | ||
that they are unable to read and
write at a level comparable to | ||
their peers solely through the use of
vision, and (ii) those | ||
who show evidence of progressive vision loss that
may result | ||
in functional blindness. Each student who is functionally | ||
blind
shall be entitled to Braille reading and writing | ||
instruction that is
sufficient to enable the student to | ||
communicate with the same level of
proficiency as other | ||
students of comparable ability. Instruction should be
provided | ||
to the extent that the student is physically and cognitively | ||
able
to use Braille. Braille instruction may be used in | ||
combination with other
special education services appropriate | ||
to the student's educational needs.
The assessment of each | ||
student who is functionally blind for the purpose of
| ||
developing the student's individualized education program | ||
shall include
documentation of the student's strengths and | ||
weaknesses in Braille skills.
Each person assisting in the | ||
development of the individualized education
program for a | ||
student who is functionally blind shall receive information
| ||
describing the benefits of Braille instruction. The | ||
individualized
education program for each student who is | ||
functionally blind shall
specify the appropriate learning | ||
medium or media based on the assessment
report.
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(d) To the maximum extent appropriate, the placement shall | ||
provide the
child with the opportunity to be educated with | ||
children who do not have a disability; provided that children | ||
with
disabilities who are recommended to be
placed into | ||
regular education classrooms are provided with supplementary
| ||
services to assist the children with disabilities to benefit
| ||
from the regular
classroom instruction and are included on the | ||
teacher's regular education class
register. Subject to the | ||
limitation of the preceding sentence, placement in
special | ||
classes, separate schools or other removal of the child with a | ||
disability
from the regular educational environment shall | ||
occur only when the nature of
the severity of the disability is | ||
such that education in the
regular classes with
the use of | ||
supplementary aids and services cannot be achieved | ||
satisfactorily.
The placement of English learners with | ||
disabilities shall
be in non-restrictive environments which | ||
provide for integration with
peers who do not have | ||
disabilities in bilingual classrooms. Annually, each January, | ||
school districts shall report data on students from | ||
non-English
speaking backgrounds receiving special education | ||
and related services in
public and private facilities as | ||
prescribed in Section 2-3.30. If there
is a disagreement | ||
between parties involved regarding the special education
| ||
placement of any child, either in-state or out-of-state, the | ||
placement is
subject to impartial due process procedures | ||
described in Article 10 of the
Rules and Regulations to Govern |
the Administration and Operation of Special
Education.
| ||
(e) No child who comes from a home in which a language | ||
other than English
is the principal language used may be | ||
assigned to any class or program
under this Article until he | ||
has been given, in the principal language
used by the child and | ||
used in his home, tests reasonably related to his
cultural | ||
environment. All testing and evaluation materials and | ||
procedures
utilized for evaluation and placement shall not be | ||
linguistically, racially or
culturally discriminatory.
| ||
(f) Nothing in this Article shall be construed to require | ||
any child to
undergo any physical examination or medical | ||
treatment whose parents object thereto on the grounds that | ||
such examination or
treatment conflicts with his religious | ||
beliefs.
| ||
(g) School boards or their designee shall provide to the | ||
parents of a child prior written notice of any decision (a) | ||
proposing
to initiate or change, or (b) refusing to initiate | ||
or change, the
identification, evaluation, or educational | ||
placement of the child or the
provision of a free appropriate | ||
public education to their child, and the
reasons therefor. | ||
Such written notification shall also inform the
parent of the | ||
opportunity to present complaints with respect
to any matter | ||
relating to the educational placement of the student, or
the | ||
provision of a free appropriate public education and to have | ||
an
impartial due process hearing on the complaint. The notice | ||
shall inform
the parents in the parents' native language,
|
unless it is clearly not feasible to do so, of their rights and | ||
all
procedures available pursuant to this Act and the federal | ||
Individuals with Disabilities Education Improvement Act of | ||
2004 (Public Law 108-446); it
shall be the responsibility of | ||
the State Superintendent to develop
uniform notices setting | ||
forth the procedures available under this Act
and the federal | ||
Individuals with Disabilities Education Improvement Act of | ||
2004 (Public Law 108-446) to be used by all school boards. The | ||
notice
shall also inform the parents of the availability upon
| ||
request of a list of free or low-cost legal and other relevant | ||
services
available locally to assist parents in initiating an
| ||
impartial due process hearing. The State Superintendent shall | ||
revise the uniform notices required by this subsection (g) to | ||
reflect current law and procedures at least once every 2 | ||
years. Any parent who is deaf , or
does not normally | ||
communicate using spoken English and , who participates in
a | ||
meeting with a representative of a local educational agency | ||
for the
purposes of developing an individualized educational | ||
program or attends a multidisciplinary conference shall be
| ||
entitled to the services of an interpreter. The State Board of | ||
Education must adopt rules to establish the criteria, | ||
standards, and competencies for a bilingual language | ||
interpreter who attends an individualized education program | ||
meeting under this subsection to assist a parent who has | ||
limited English proficiency.
| ||
(g-5) For purposes of this subsection (g-5), "qualified |
professional" means an individual who holds credentials to | ||
evaluate the child in the domain or domains for which an | ||
evaluation is sought or an intern working under the direct | ||
supervision of a qualified professional, including a master's | ||
or doctoral degree candidate. | ||
To ensure that a parent can participate fully and | ||
effectively with school personnel in the development of | ||
appropriate educational and related services for his or her | ||
child, the parent, an independent educational evaluator, or a | ||
qualified professional retained by or on behalf of a parent or | ||
child must be afforded reasonable access to educational | ||
facilities, personnel, classrooms, and buildings and to the | ||
child as provided in this subsection (g-5). The requirements | ||
of this subsection (g-5) apply to any public school facility, | ||
building, or program and to any facility, building, or program | ||
supported in whole or in part by public funds. Prior to | ||
visiting a school, school building, or school facility, the | ||
parent, independent educational evaluator, or qualified | ||
professional may be required by the school district to inform | ||
the building principal or supervisor in writing of the | ||
proposed visit, the purpose of the visit, and the approximate | ||
duration of the visit. The visitor and the school district | ||
shall arrange the visit or visits at times that are mutually | ||
agreeable. Visitors shall comply with school safety, security, | ||
and visitation policies at all times. School district | ||
visitation policies must not conflict with this subsection |
(g-5). Visitors shall be required to comply with the | ||
requirements of applicable privacy laws, including those laws | ||
protecting the confidentiality of education records such as | ||
the federal Family Educational Rights and Privacy Act and the | ||
Illinois School Student Records Act. The visitor shall not | ||
disrupt the educational process. | ||
(1) A parent must be afforded reasonable access of | ||
sufficient duration and scope for the purpose of observing | ||
his or her child in the child's current educational | ||
placement, services, or program or for the purpose of | ||
visiting an educational placement or program proposed for | ||
the child. | ||
(2) An independent educational evaluator or a | ||
qualified professional retained by or on behalf of a | ||
parent or child must be afforded reasonable access of | ||
sufficient duration and scope for the purpose of | ||
conducting an evaluation of the child, the child's | ||
performance, the child's current educational program, | ||
placement, services, or environment, or any educational | ||
program, placement, services, or environment proposed for | ||
the child, including interviews of educational personnel, | ||
child observations, assessments, tests or assessments of | ||
the child's educational program, services, or placement or | ||
of any proposed educational program, services, or | ||
placement. If one or more interviews of school personnel | ||
are part of the evaluation, the interviews must be |
conducted at a mutually agreed upon time, date, and place | ||
that do not interfere with the school employee's school | ||
duties. The school district may limit interviews to | ||
personnel having information relevant to the child's | ||
current educational services, program, or placement or to | ||
a proposed educational service, program, or placement.
| ||
(Source: P.A. 101-124, eff. 1-1-20; 102-264, eff. 8-6-21; | ||
102-558, eff. 8-20-21.) | ||
(Text of Section after amendment by P.A. 102-199 )
| ||
Sec. 14-8.02. Identification, evaluation, and placement of | ||
children.
| ||
(a) The State Board of Education shall make rules under | ||
which local school
boards shall determine the eligibility of | ||
children to receive special
education. Such rules shall ensure | ||
that a free appropriate public
education be available to all | ||
children with disabilities as
defined in
Section 14-1.02. The | ||
State Board of Education shall require local school
districts | ||
to administer non-discriminatory procedures or tests to
| ||
English learners coming from homes in which a language
other | ||
than English is used to determine their eligibility to receive | ||
special
education. The placement of low English proficiency | ||
students in special
education programs and facilities shall be | ||
made in accordance with the test
results reflecting the | ||
student's linguistic, cultural and special education
needs. | ||
For purposes of determining the eligibility of children the |
State
Board of Education shall include in the rules | ||
definitions of "case study",
"staff conference", | ||
"individualized educational program", and "qualified
| ||
specialist" appropriate to each category of children with
| ||
disabilities as defined in
this Article. For purposes of | ||
determining the eligibility of children from
homes in which a | ||
language other than English is used, the State Board of
| ||
Education shall include in the rules
definitions for | ||
"qualified bilingual specialists" and "linguistically and
| ||
culturally appropriate individualized educational programs". | ||
For purposes of this
Section, as well as Sections 14-8.02a, | ||
14-8.02b, and 14-8.02c of this Code,
"parent" means a parent | ||
as defined in the federal Individuals with Disabilities | ||
Education Act (20 U.S.C. 1401(23)).
| ||
(b) No child shall be eligible for special education | ||
facilities except
with a carefully completed case study fully | ||
reviewed by professional
personnel in a multidisciplinary | ||
staff conference and only upon the
recommendation of qualified | ||
specialists or a qualified bilingual specialist, if
available. | ||
At the conclusion of the multidisciplinary staff conference, | ||
the
parent of the child and, if the child is in the legal | ||
custody of the Department of Children and Family Services, the | ||
Department's Office of Education and Transition Services shall | ||
be given a copy of the multidisciplinary
conference summary | ||
report and recommendations, which includes options
considered, | ||
and, in the case of the parent, be informed of his or her right |
to obtain an independent educational
evaluation if he or she | ||
disagrees with the evaluation findings conducted or obtained
| ||
by the school district. If the school district's evaluation is | ||
shown to be
inappropriate, the school district shall reimburse | ||
the parent for the cost of
the independent evaluation. The | ||
State Board of Education shall, with advice
from the State | ||
Advisory Council on Education of Children with
Disabilities on | ||
the
inclusion of specific independent educational evaluators, | ||
prepare a list of
suggested independent educational | ||
evaluators. The State Board of Education
shall include on the | ||
list clinical psychologists licensed pursuant to the
Clinical | ||
Psychologist Licensing Act. Such psychologists shall not be | ||
paid fees
in excess of the amount that would be received by a | ||
school psychologist for
performing the same services. The | ||
State Board of Education shall supply school
districts with | ||
such list and make the list available to parents at their
| ||
request. School districts shall make the list available to | ||
parents at the time
they are informed of their right to obtain | ||
an independent educational
evaluation. However, the school | ||
district may initiate an impartial
due process hearing under | ||
this Section within 5 days of any written parent
request for an | ||
independent educational evaluation to show that
its evaluation | ||
is appropriate. If the final decision is that the evaluation
| ||
is appropriate, the parent still has a right to an independent | ||
educational
evaluation, but not at public expense. An | ||
independent educational
evaluation at public expense must be |
completed within 30 days of a parent
written request unless | ||
the school district initiates an
impartial due process hearing | ||
or the parent or school district
offers reasonable grounds to | ||
show that such 30-day time period should be
extended. If the | ||
due process hearing decision indicates that the parent is | ||
entitled to an independent educational evaluation, it must be
| ||
completed within 30 days of the decision unless the parent or
| ||
the school district offers reasonable grounds to show that | ||
such 30-day
period should be extended. If a parent disagrees | ||
with the summary report or
recommendations of the | ||
multidisciplinary conference or the findings of any
| ||
educational evaluation which results therefrom, the school
| ||
district shall not proceed with a placement based upon such | ||
evaluation and
the child shall remain in his or her regular | ||
classroom setting.
No child shall be eligible for admission to | ||
a
special class for children with a mental disability who are | ||
educable or for children with a mental disability who are | ||
trainable except with a psychological evaluation
and
| ||
recommendation by a school psychologist. Consent shall be | ||
obtained from
the parent of a child before any evaluation is | ||
conducted.
If consent is not given by the parent or if the | ||
parent disagrees with the findings of the evaluation, then the | ||
school
district may initiate an impartial due process hearing | ||
under this Section.
The school district may evaluate the child | ||
if that is the decision
resulting from the impartial due | ||
process hearing and the decision is not
appealed or if the |
decision is affirmed on appeal.
The determination of | ||
eligibility shall be made and the IEP meeting shall be | ||
completed within 60 school days
from the date of written | ||
parental consent. In those instances when written parental | ||
consent is obtained with fewer than 60 pupil attendance days | ||
left in the school year,
the eligibility determination shall | ||
be made and the IEP meeting shall be completed prior to the | ||
first day of the
following school year. Special education and | ||
related services must be provided in accordance with the | ||
student's IEP no later than 10 school attendance days after | ||
notice is provided to the parents pursuant to Section 300.503 | ||
of Title 34 of the Code of Federal Regulations and | ||
implementing rules adopted by the State Board of Education. | ||
The appropriate
program pursuant to the individualized | ||
educational program of students
whose native tongue is a | ||
language other than English shall reflect the
special | ||
education, cultural and linguistic needs. No later than | ||
September
1, 1993, the State Board of Education shall | ||
establish standards for the
development, implementation and | ||
monitoring of appropriate bilingual special
individualized | ||
educational programs. The State Board of Education shall
| ||
further incorporate appropriate monitoring procedures to | ||
verify implementation
of these standards. The district shall | ||
indicate to the parent, the State Board of Education, and, if | ||
applicable, the Department's Office of Education and | ||
Transition Services the nature of the services the child will |
receive
for the regular school term while awaiting waiting | ||
placement in the appropriate special
education class. At the | ||
child's initial IEP meeting and at each annual review meeting, | ||
the child's IEP team shall provide the child's parent or | ||
guardian and, if applicable, the Department's Office of | ||
Education and Transition Services with a written notification | ||
that informs the parent or guardian or the Department's Office | ||
of Education and Transition Services that the IEP team is | ||
required to consider whether the child requires assistive | ||
technology in order to receive free, appropriate public | ||
education. The notification must also include a toll-free | ||
telephone number and internet address for the State's | ||
assistive technology program.
| ||
If the child is deaf, hard of hearing, blind, or visually | ||
impaired or has an orthopedic impairment or physical | ||
disability and
he or she might be eligible to receive services | ||
from the Illinois School for
the Deaf, the Illinois School for | ||
the Visually Impaired, or the Illinois Center for | ||
Rehabilitation and Education-Roosevelt, the school
district | ||
shall notify the parents, in writing, of the existence of
| ||
these schools
and the services
they provide and shall make a | ||
reasonable effort to inform the parents of the existence of | ||
other, local schools that provide similar services and the | ||
services that these other schools provide. This notification
| ||
shall
include without limitation information on school | ||
services, school
admissions criteria, and school contact |
information.
| ||
In the development of the individualized education program | ||
for a student who has a disability on the autism spectrum | ||
(which includes autistic disorder, Asperger's disorder, | ||
pervasive developmental disorder not otherwise specified, | ||
childhood disintegrative disorder, and Rett Syndrome, as | ||
defined in the Diagnostic and Statistical Manual of Mental | ||
Disorders, fourth edition (DSM-IV, 2000)), the IEP team shall | ||
consider all of the following factors: | ||
(1) The verbal and nonverbal communication needs of | ||
the child. | ||
(2) The need to develop social interaction skills and | ||
proficiencies. | ||
(3) The needs resulting from the child's unusual | ||
responses to sensory experiences. | ||
(4) The needs resulting from resistance to | ||
environmental change or change in daily routines. | ||
(5) The needs resulting from engagement in repetitive | ||
activities and stereotyped movements. | ||
(6) The need for any positive behavioral | ||
interventions, strategies, and supports to address any | ||
behavioral difficulties resulting from autism spectrum | ||
disorder. | ||
(7) Other needs resulting from the child's disability | ||
that impact progress in the general curriculum, including | ||
social and emotional development. |
Public Act 95-257
does not create any new entitlement to a | ||
service, program, or benefit, but must not affect any | ||
entitlement to a service, program, or benefit created by any | ||
other law.
| ||
If the student may be eligible to participate in the | ||
Home-Based Support
Services Program for Adults with Mental | ||
Disabilities authorized under the
Developmental Disability and | ||
Mental Disability Services Act upon becoming an
adult, the | ||
student's individualized education program shall include plans | ||
for
(i) determining the student's eligibility for those | ||
home-based services, (ii)
enrolling the student in the program | ||
of home-based services, and (iii)
developing a plan for the | ||
student's most effective use of the home-based
services after | ||
the student becomes an adult and no longer receives special
| ||
educational services under this Article. The plans developed | ||
under this
paragraph shall include specific actions to be | ||
taken by specified individuals,
agencies, or officials.
| ||
(c) In the development of the individualized education | ||
program for a
student who is functionally blind, it shall be | ||
presumed that proficiency in
Braille reading and writing is | ||
essential for the student's satisfactory
educational progress. | ||
For purposes of this subsection, the State Board of
Education | ||
shall determine the criteria for a student to be classified as
| ||
functionally blind. Students who are not currently identified | ||
as
functionally blind who are also entitled to Braille | ||
instruction include:
(i) those whose vision loss is so severe |
that they are unable to read and
write at a level comparable to | ||
their peers solely through the use of
vision, and (ii) those | ||
who show evidence of progressive vision loss that
may result | ||
in functional blindness. Each student who is functionally | ||
blind
shall be entitled to Braille reading and writing | ||
instruction that is
sufficient to enable the student to | ||
communicate with the same level of
proficiency as other | ||
students of comparable ability. Instruction should be
provided | ||
to the extent that the student is physically and cognitively | ||
able
to use Braille. Braille instruction may be used in | ||
combination with other
special education services appropriate | ||
to the student's educational needs.
The assessment of each | ||
student who is functionally blind for the purpose of
| ||
developing the student's individualized education program | ||
shall include
documentation of the student's strengths and | ||
weaknesses in Braille skills.
Each person assisting in the | ||
development of the individualized education
program for a | ||
student who is functionally blind shall receive information
| ||
describing the benefits of Braille instruction. The | ||
individualized
education program for each student who is | ||
functionally blind shall
specify the appropriate learning | ||
medium or media based on the assessment
report.
| ||
(d) To the maximum extent appropriate, the placement shall | ||
provide the
child with the opportunity to be educated with | ||
children who do not have a disability; provided that children | ||
with
disabilities who are recommended to be
placed into |
regular education classrooms are provided with supplementary
| ||
services to assist the children with disabilities to benefit
| ||
from the regular
classroom instruction and are included on the | ||
teacher's regular education class
register. Subject to the | ||
limitation of the preceding sentence, placement in
special | ||
classes, separate schools or other removal of the child with a | ||
disability
from the regular educational environment shall | ||
occur only when the nature of
the severity of the disability is | ||
such that education in the
regular classes with
the use of | ||
supplementary aids and services cannot be achieved | ||
satisfactorily.
The placement of English learners with | ||
disabilities shall
be in non-restrictive environments which | ||
provide for integration with
peers who do not have | ||
disabilities in bilingual classrooms. Annually, each January, | ||
school districts shall report data on students from | ||
non-English
speaking backgrounds receiving special education | ||
and related services in
public and private facilities as | ||
prescribed in Section 2-3.30. If there
is a disagreement | ||
between parties involved regarding the special education
| ||
placement of any child, either in-state or out-of-state, the | ||
placement is
subject to impartial due process procedures | ||
described in Article 10 of the
Rules and Regulations to Govern | ||
the Administration and Operation of Special
Education.
| ||
(e) No child who comes from a home in which a language | ||
other than English
is the principal language used may be | ||
assigned to any class or program
under this Article until he |
has been given, in the principal language
used by the child and | ||
used in his home, tests reasonably related to his
cultural | ||
environment. All testing and evaluation materials and | ||
procedures
utilized for evaluation and placement shall not be | ||
linguistically, racially or
culturally discriminatory.
| ||
(f) Nothing in this Article shall be construed to require | ||
any child to
undergo any physical examination or medical | ||
treatment whose parents object thereto on the grounds that | ||
such examination or
treatment conflicts with his religious | ||
beliefs.
| ||
(g) School boards or their designee shall provide to the | ||
parents of a child or, if applicable, the Department of | ||
Children and Family Services' Office of Education and | ||
Transition Services prior written notice of any decision (a) | ||
proposing
to initiate or change, or (b) refusing to initiate | ||
or change, the
identification, evaluation, or educational | ||
placement of the child or the
provision of a free appropriate | ||
public education to their child, and the
reasons therefor. For | ||
a parent, such written notification shall also inform the
| ||
parent of the opportunity to present complaints with respect
| ||
to any matter relating to the educational placement of the | ||
student, or
the provision of a free appropriate public | ||
education and to have an
impartial due process hearing on the | ||
complaint. The notice shall inform
the parents in the parents' | ||
native language,
unless it is clearly not feasible to do so, of | ||
their rights and all
procedures available pursuant to this Act |
and the federal Individuals with Disabilities Education | ||
Improvement Act of 2004 (Public Law 108-446); it
shall be the | ||
responsibility of the State Superintendent to develop
uniform | ||
notices setting forth the procedures available under this Act
| ||
and the federal Individuals with Disabilities Education | ||
Improvement Act of 2004 (Public Law 108-446) to be used by all | ||
school boards. The notice
shall also inform the parents of the | ||
availability upon
request of a list of free or low-cost legal | ||
and other relevant services
available locally to assist | ||
parents in initiating an
impartial due process hearing. The | ||
State Superintendent shall revise the uniform notices required | ||
by this subsection (g) to reflect current law and procedures | ||
at least once every 2 years. Any parent who is deaf , or
does | ||
not normally communicate using spoken English and , who | ||
participates in
a meeting with a representative of a local | ||
educational agency for the
purposes of developing an | ||
individualized educational program or attends a | ||
multidisciplinary conference shall be
entitled to the services | ||
of an interpreter. The State Board of Education must adopt | ||
rules to establish the criteria, standards, and competencies | ||
for a bilingual language interpreter who attends an | ||
individualized education program meeting under this subsection | ||
to assist a parent who has limited English proficiency.
| ||
(g-5) For purposes of this subsection (g-5), "qualified | ||
professional" means an individual who holds credentials to | ||
evaluate the child in the domain or domains for which an |
evaluation is sought or an intern working under the direct | ||
supervision of a qualified professional, including a master's | ||
or doctoral degree candidate. | ||
To ensure that a parent can participate fully and | ||
effectively with school personnel in the development of | ||
appropriate educational and related services for his or her | ||
child, the parent, an independent educational evaluator, or a | ||
qualified professional retained by or on behalf of a parent or | ||
child must be afforded reasonable access to educational | ||
facilities, personnel, classrooms, and buildings and to the | ||
child as provided in this subsection (g-5). The requirements | ||
of this subsection (g-5) apply to any public school facility, | ||
building, or program and to any facility, building, or program | ||
supported in whole or in part by public funds. Prior to | ||
visiting a school, school building, or school facility, the | ||
parent, independent educational evaluator, or qualified | ||
professional may be required by the school district to inform | ||
the building principal or supervisor in writing of the | ||
proposed visit, the purpose of the visit, and the approximate | ||
duration of the visit. The visitor and the school district | ||
shall arrange the visit or visits at times that are mutually | ||
agreeable. Visitors shall comply with school safety, security, | ||
and visitation policies at all times. School district | ||
visitation policies must not conflict with this subsection | ||
(g-5). Visitors shall be required to comply with the | ||
requirements of applicable privacy laws, including those laws |
protecting the confidentiality of education records such as | ||
the federal Family Educational Rights and Privacy Act and the | ||
Illinois School Student Records Act. The visitor shall not | ||
disrupt the educational process. | ||
(1) A parent must be afforded reasonable access of | ||
sufficient duration and scope for the purpose of observing | ||
his or her child in the child's current educational | ||
placement, services, or program or for the purpose of | ||
visiting an educational placement or program proposed for | ||
the child. | ||
(2) An independent educational evaluator or a | ||
qualified professional retained by or on behalf of a | ||
parent or child must be afforded reasonable access of | ||
sufficient duration and scope for the purpose of | ||
conducting an evaluation of the child, the child's | ||
performance, the child's current educational program, | ||
placement, services, or environment, or any educational | ||
program, placement, services, or environment proposed for | ||
the child, including interviews of educational personnel, | ||
child observations, assessments, tests or assessments of | ||
the child's educational program, services, or placement or | ||
of any proposed educational program, services, or | ||
placement. If one or more interviews of school personnel | ||
are part of the evaluation, the interviews must be | ||
conducted at a mutually agreed upon time, date, and place | ||
that do not interfere with the school employee's school |
duties. The school district may limit interviews to | ||
personnel having information relevant to the child's | ||
current educational services, program, or placement or to | ||
a proposed educational service, program, or placement.
| ||
(Source: P.A. 101-124, eff. 1-1-20; 102-199, eff. 7-1-22; | ||
102-264, eff. 8-6-21; 102-558, eff. 8-20-21; revised | ||
10-14-21.)
| ||
(105 ILCS 5/14-8.02a)
| ||
Sec. 14-8.02a. Impartial due process hearing; civil | ||
action.
| ||
(a) This Section
shall apply to all impartial due process | ||
hearings requested on or after July
1, 2005. Impartial due | ||
process hearings requested before July 1, 2005 shall be | ||
governed by the rules described in Public Act 89-652. | ||
(a-5) For purposes of this Section and Section 14-8.02b of | ||
this Code, days shall be computed in accordance with Section | ||
1.11 of the Statute on Statutes.
| ||
(b) The State Board of Education shall establish an | ||
impartial due process
hearing system in accordance with this
| ||
Section and may, with the advice and approval of the Advisory | ||
Council on
Education of Children with Disabilities, promulgate | ||
rules and regulations
consistent with this Section to | ||
establish the rules and procedures for due process hearings.
| ||
(c) (Blank).
| ||
(d) (Blank).
|
(e) (Blank).
| ||
(f) An impartial due process hearing shall be convened | ||
upon the request of a
parent, student if at least 18 years of | ||
age or emancipated, or a
school district. A school district | ||
shall
make a request in writing to the State Board of Education | ||
and promptly mail a
copy of the request to the parents or | ||
student (if at least 18 years of age or emancipated) at the | ||
parent's or student's last
known address. A request made by | ||
the parent or student shall be made in writing to the | ||
superintendent of the school district where the student | ||
resides. The superintendent shall forward the request to the | ||
State Board of Education within 5 days after receipt of the | ||
request. The request shall be filed no more than 2 years | ||
following the date the person or school district knew or | ||
should have known of the event or events forming the basis for | ||
the request. The request shall, at a minimum, contain all of | ||
the following: | ||
(1) The name of the student, the address of the | ||
student's residence, and the name of the school the | ||
student is attending. | ||
(2) In the case of homeless children (as defined under | ||
the federal McKinney-Vento Homeless Assistance Act (42 | ||
U.S.C. 11434a(2))), available contact information for the | ||
student and the name of the school the student is | ||
attending. | ||
(3) A description of the nature of the problem |
relating to the actual or proposed placement, | ||
identification, services, or evaluation of the student, | ||
including facts relating to the problem. | ||
(4) A proposed resolution of the problem to the extent | ||
known and available to the party at the time. | ||
(f-5) Within 3 days after receipt of the hearing request,
| ||
the State Board of
Education shall appoint a due process | ||
hearing officer using a rotating
appointment system and shall | ||
notify the hearing officer of his or her
appointment. | ||
For a school district other than a school district located | ||
in a municipality having a population exceeding 500,000, a | ||
hearing officer who is a current resident of the school | ||
district, special
education cooperative, or other public | ||
entity involved in the hearing shall recuse himself or | ||
herself. A hearing officer who is a former employee of the | ||
school district, special education cooperative, or other | ||
public entity involved in the hearing shall immediately | ||
disclose the former employment to the parties and shall recuse | ||
himself or herself, unless the parties otherwise agree in | ||
writing. A
hearing officer having a personal or professional | ||
interest that may conflict
with his or her objectivity in the | ||
hearing shall disclose the conflict to the parties and shall | ||
recuse himself or herself unless the parties otherwise agree | ||
in writing. For purposes of this subsection
an assigned | ||
hearing officer shall be considered to have a conflict of | ||
interest
if, at any time prior to the issuance of his or her |
written decision, he or she
knows or should know that he or she | ||
may receive remuneration from a party
to the hearing within 3 | ||
years following the conclusion of the due process
hearing. | ||
A party to a due process hearing shall be permitted one | ||
substitution
of hearing officer as a matter of right, in | ||
accordance with procedures
established by the rules adopted by | ||
the State Board of Education under this
Section. The State | ||
Board of Education shall randomly select and appoint
another | ||
hearing officer within 3 days after receiving notice that the | ||
appointed
hearing officer is ineligible to serve or upon | ||
receiving a proper request for
substitution of hearing | ||
officer. If a party withdraws its request for a due
process | ||
hearing after a hearing officer has been appointed, that | ||
hearing
officer shall retain jurisdiction over a subsequent | ||
hearing that involves the
same parties and is requested within | ||
one year from the date of withdrawal of
the previous request, | ||
unless that hearing
officer is unavailable.
| ||
Any party may raise
facts that constitute a conflict of | ||
interest for the hearing officer at any
time before or during | ||
the hearing and may move for recusal.
| ||
(g) Impartial due process hearings shall be conducted | ||
pursuant to this
Section and any rules and regulations | ||
promulgated by the State Board of Education
consistent with | ||
this Section and other governing laws and regulations. The | ||
hearing shall address only those issues properly raised in the | ||
hearing request under subsection (f) of this Section or, if |
applicable, in the amended hearing request under subsection | ||
(g-15) of this Section. The
hearing shall be closed to the | ||
public unless the parents request
that the hearing be open to | ||
the public. The parents involved in
the hearing shall have the | ||
right to have the student who is the subject of the
hearing | ||
present. The hearing shall be held at a time and place which | ||
are
reasonably convenient to the parties involved. Upon the | ||
request of
a party, the hearing officer shall hold the hearing | ||
at a location neutral to
the parties if the hearing officer | ||
determines that there is no cost for
securing the use of the | ||
neutral location. Once appointed, the impartial due
process | ||
hearing officer shall not communicate with the State Board of | ||
Education
or its employees concerning the
hearing, except | ||
that, where circumstances require, communications for
| ||
administrative purposes that do not deal with substantive or | ||
procedural matters
or issues on the merits are authorized, | ||
provided that the hearing officer
promptly notifies all | ||
parties of the substance of the communication as a matter
of | ||
record. | ||
(g-5) Unless the school district has previously provided | ||
prior written notice to the parent or student (if at least 18 | ||
years of age or emancipated) regarding the subject matter of | ||
the hearing request, the school district shall, within 10 days | ||
after receiving a hearing request initiated by a parent or | ||
student (if at least 18 years of age or emancipated), provide a | ||
written response to the request that shall include all of the |
following: | ||
(1) An explanation of why the school district proposed | ||
or refused to take the action or actions described in the | ||
hearing request. | ||
(2) A description of other options the IEP team | ||
considered and the reasons why those options were | ||
rejected. | ||
(3) A description of each evaluation procedure, | ||
assessment, record, report, or other evidence the school | ||
district used as the basis for the proposed or refused | ||
action or actions. | ||
(4) A description of the factors that are or were | ||
relevant to the school district's proposed or refused | ||
action or actions. | ||
(g-10) When the hearing request has been initiated by a | ||
school district, within 10 days after receiving the request, | ||
the parent or student (if at least 18 years of age or | ||
emancipated) shall provide the school district with a response | ||
that specifically addresses the issues raised in the school | ||
district's hearing request. The parent's or student's response | ||
shall be provided in writing, unless he or she is illiterate or | ||
has a disability that prevents him or her from providing a | ||
written response. The parent's or student's response may be | ||
provided in his or her native language, if other than English. | ||
In the event that illiteracy or another disabling condition | ||
prevents the parent or student from providing a written |
response, the school district shall assist the parent or | ||
student in providing the written response. | ||
(g-15) Within 15 days after receiving notice of the | ||
hearing request, the non-requesting party may challenge the | ||
sufficiency of the request by submitting its challenge in | ||
writing to the hearing officer. Within 5 days after receiving | ||
the challenge to the sufficiency of the request, the hearing | ||
officer shall issue a determination of the challenge in | ||
writing to the parties. In the event that the hearing officer | ||
upholds the challenge, the party who requested the hearing | ||
may, with the consent of the non-requesting party or hearing | ||
officer, file an amended request. Amendments are permissible | ||
for the purpose of raising issues beyond those in the initial | ||
hearing request. In addition, the party who requested the | ||
hearing may amend the request once as a matter of right by | ||
filing the amended request within 5 days after filing the | ||
initial request. An amended request, other than an amended | ||
request as a matter of right, shall be filed by the date | ||
determined by the hearing officer, but in no event any later | ||
than 5 days prior to the date of the hearing. If an amended | ||
request, other than an amended request as a matter of right, | ||
raises issues that were not part of the initial request, the | ||
applicable timeline for a hearing, including the timeline | ||
under subsection (g-20) of this Section, shall recommence. | ||
(g-20) Within 15 days after receiving a request for a | ||
hearing from a parent or student (if at least 18 years of age |
or emancipated) or, in the event that the school district | ||
requests a hearing, within 15 days after initiating the | ||
request, the school district shall convene a resolution | ||
meeting with the parent and relevant members of the IEP team | ||
who have specific knowledge of the facts contained in the | ||
request for the purpose of resolving the problem that resulted | ||
in the request. The resolution meeting shall include a | ||
representative of the school district who has decision-making | ||
authority on behalf of the school district. Unless the parent | ||
is accompanied by an attorney at the resolution meeting, the | ||
school district may not include an attorney representing the | ||
school district. | ||
The resolution meeting may not be waived unless agreed to | ||
in writing by the school district and the parent or student (if | ||
at least 18 years of age or emancipated) or the parent or | ||
student (if at least 18 years of age or emancipated) and the | ||
school district agree in writing to utilize mediation in place | ||
of the resolution meeting. If either party fails to cooperate | ||
in the scheduling or convening of the resolution meeting, the | ||
hearing officer may order an extension of the timeline for | ||
completion of the resolution meeting or, upon the motion of a | ||
party and at least 7 days after ordering the non-cooperating | ||
party to cooperate, order the dismissal of the hearing request | ||
or the granting of all relief set forth in the request, as | ||
appropriate. | ||
In the event that the school district and the parent or |
student (if at least 18 years of age or emancipated) agree to a | ||
resolution of the problem that resulted in the hearing | ||
request, the terms of the resolution shall be committed to | ||
writing and signed by the parent or student (if at least 18 | ||
years of age or emancipated) and the representative of the | ||
school district with decision-making authority. The agreement | ||
shall be legally binding and shall be enforceable in any State | ||
or federal court of competent jurisdiction. In the event that | ||
the parties utilize the resolution meeting process, the | ||
process shall continue until no later than the 30th day | ||
following the receipt of the hearing request by the | ||
non-requesting party (or as properly extended by order of the | ||
hearing officer) to resolve the issues underlying the request, | ||
at which time the timeline for completion of the impartial due | ||
process hearing shall commence. The State Board of Education | ||
may, by rule, establish additional procedures for the conduct | ||
of resolution meetings. | ||
(g-25) If mutually agreed to in writing, the parties to a | ||
hearing request may request State-sponsored mediation as a | ||
substitute for the resolution process described in subsection | ||
(g-20) of this Section or may utilize mediation at the close of | ||
the resolution process if all issues underlying the hearing | ||
request have not been resolved through the resolution process. | ||
(g-30) If mutually agreed to in writing, the parties to a | ||
hearing request may waive the resolution process described in | ||
subsection (g-20) of this Section. Upon signing a written |
agreement to waive the resolution process, the parties shall | ||
be required to forward the written waiver to the hearing | ||
officer appointed to the case within 2 business days following | ||
the signing of the waiver by the parties. The timeline for the | ||
impartial due process hearing shall commence on the date of | ||
the signing of the waiver by the parties. | ||
(g-35) The timeline for completing the impartial due | ||
process hearing, as set forth in subsection (h) of this | ||
Section, shall be initiated upon the occurrence of any one of | ||
the following events: | ||
(1) The unsuccessful completion of the resolution | ||
process as described in subsection (g-20) of this Section. | ||
(2) The mutual agreement of the parties to waive the | ||
resolution process as described in subsection (g-25) or | ||
(g-30) of this Section.
| ||
(g-40) The hearing officer shall convene a prehearing | ||
conference no later than 14
days before the scheduled date for | ||
the due process hearing for the general
purpose of aiding in | ||
the fair, orderly, and expeditious conduct of the hearing.
The | ||
hearing officer shall provide the parties with written notice | ||
of the
prehearing conference at least 7 days in advance of the | ||
conference. The
written notice shall require the parties to | ||
notify the hearing officer by a
date certain whether they | ||
intend to participate in the prehearing conference.
The | ||
hearing officer may conduct the prehearing conference in | ||
person or by
telephone. Each party shall at the prehearing |
conference (1) disclose whether
it is represented by legal | ||
counsel or intends to retain legal counsel; (2) clarify
| ||
matters it believes to be in dispute in the case and the | ||
specific relief
being sought; (3) disclose whether there are | ||
any additional evaluations for the student
that it intends to
| ||
introduce into the
hearing record that have not been | ||
previously disclosed to the other parties;
(4) disclose a list | ||
of all documents it intends to introduce into the hearing | ||
record,
including the date and a brief description of each | ||
document; and (5) disclose the names
of all witnesses it | ||
intends to call to testify at the hearing. The hearing
officer | ||
shall specify the order of presentation to be used at the | ||
hearing. If
the
prehearing conference is held by telephone, | ||
the parties shall transmit the
information required in this | ||
paragraph in such a manner that it is available to
all parties | ||
at the time of the prehearing conference. The State Board of
| ||
Education may, by
rule, establish additional procedures for | ||
the conduct of prehearing
conferences.
| ||
(g-45) The
impartial due process hearing officer shall not | ||
initiate or participate in any
ex parte communications with | ||
the parties, except to arrange the date, time,
and location of | ||
the prehearing conference, due process hearing, or other | ||
status conferences convened at the discretion of the hearing | ||
officer
and to
receive confirmation of whether a party intends | ||
to participate in the
prehearing conference. | ||
(g-50) The parties shall disclose and provide to each |
other
any evidence which they intend to submit into the | ||
hearing record no later than
5 days before the hearing. Any | ||
party to a hearing has the right to prohibit
the introduction | ||
of any evidence at the hearing that has not been disclosed to
| ||
that party at least 5 days before the hearing. The party | ||
requesting a hearing shall not be permitted at the hearing to | ||
raise issues that were not raised in the party's initial or | ||
amended request, unless otherwise permitted in this Section.
| ||
(g-55) All reasonable efforts must be made by the parties | ||
to present their respective cases at the hearing within a | ||
cumulative period of 7 days. When scheduling hearing dates, | ||
the hearing officer shall schedule the final day of the | ||
hearing no more than 30 calendar days after the first day of | ||
the hearing unless good cause is shown. This subsection (g-55) | ||
shall not be applied in a manner that (i) denies any party to | ||
the hearing a fair and reasonable allocation of time and | ||
opportunity to present its case in its entirety or (ii) | ||
deprives any party to the hearing of the safeguards accorded | ||
under the federal Individuals with Disabilities Education | ||
Improvement Act of 2004 (Public Law 108-446), regulations | ||
promulgated under the Individuals with Disabilities Education | ||
Improvement Act of 2004, or any other applicable law. The | ||
school district shall present evidence that the special | ||
education needs
of the child have been appropriately | ||
identified and that the special education
program and related | ||
services proposed to meet the needs of the child are
adequate, |
appropriate, and available. Any party to the hearing shall | ||
have the
right to (1) be represented
by counsel and be | ||
accompanied and advised by individuals with special knowledge
| ||
or training with respect to the problems of children with | ||
disabilities, at the
party's own expense; (2) present evidence | ||
and confront and cross-examine
witnesses; (3) move for the | ||
exclusion of witnesses from the hearing until they
are called | ||
to testify, provided, however, that this provision may not be
| ||
invoked to exclude the individual designated by a party to | ||
assist that party or
its representative in the presentation of | ||
the case; (4) obtain a written or
electronic verbatim record | ||
of
the proceedings within 30 days of receipt of a written | ||
request from the parents
by the school district; and (5) | ||
obtain a written decision, including findings
of fact and | ||
conclusions of law, within 10 calendar days, excluding | ||
Saturday, Sunday, and any State holiday, after the conclusion | ||
of the
hearing.
If at issue, the school district shall present | ||
evidence that it has
properly identified and evaluated the | ||
nature and
severity of the student's suspected or identified | ||
disability and that, if the
student has been or should have | ||
been determined eligible for special education
and related | ||
services, that it is providing or has offered a free | ||
appropriate
public education to the student in the least | ||
restrictive environment,
consistent with
procedural safeguards | ||
and in accordance with an individualized educational
program.
| ||
At any time prior to the conclusion of the hearing, the |
impartial due
process hearing officer shall have the authority | ||
to require additional
information and order independent | ||
evaluations for the
student at the expense of the school | ||
district. The State Board of Education
and the school district | ||
shall share equally the costs of providing a written or
| ||
electronic verbatim record of the proceedings. Any party may | ||
request that the
due process hearing officer issue a subpoena | ||
to compel the testimony of
witnesses or the production of | ||
documents relevant to the
resolution of the hearing. Whenever | ||
a person refuses to comply with any
subpoena issued under this | ||
Section, the circuit court of the county in which
that hearing | ||
is pending, on application of the impartial hearing officer or | ||
the
party requesting the issuance of the subpoena, may compel | ||
compliance through
the contempt powers of
the court in the | ||
same manner as if the requirements of a subpoena issued by the
| ||
court had been disobeyed.
| ||
(h) The impartial hearing officer shall issue a written | ||
decision, including
findings of fact and conclusions of law, | ||
within 10 calendar days, excluding Saturday, Sunday, and any | ||
State holiday, after the
conclusion of the hearing and send by | ||
certified mail a copy of the decision to the parents
or student | ||
(if the student requests the hearing), the school
district, | ||
the director of special education, legal representatives of | ||
the
parties, and the State Board of Education. Unless the | ||
hearing officer has
granted specific extensions of time at the | ||
request of a party, a final
decision, including the |
clarification of a decision requested under this
subsection, | ||
shall be reached and mailed to the parties named above not | ||
later
than 45 days after the initiation of the timeline for | ||
conducting the hearing, as described in subsection (g-35) of | ||
this Section. The
decision shall specify the educational and | ||
related services that shall be
provided to the student in | ||
accordance with the student's needs and the timeline for which | ||
the school district shall submit evidence to the State Board | ||
of Education to demonstrate compliance with the hearing | ||
officer's decision in the event that the decision orders the | ||
school district to undertake corrective action.
The hearing | ||
officer shall retain jurisdiction for the sole purpose of
| ||
considering a request for clarification of the final decision | ||
submitted in
writing by a party to the impartial hearing | ||
officer within 5 days after receipt
of the decision.
A copy of | ||
the request for clarification shall specify the portions of | ||
the
decision for which clarification is sought and shall be | ||
mailed to all parties
of record and to the State Board of | ||
Education. The request shall
operate to stay implementation of | ||
those portions of the decision for which
clarification is | ||
sought, pending action on the request by the hearing officer,
| ||
unless the parties otherwise agree. The hearing officer shall | ||
issue a
clarification of the specified portion of the decision | ||
or issue a partial or
full denial of the request in writing | ||
within 10 days of receipt of the request
and mail copies to all | ||
parties to whom the decision was mailed. This
subsection does |
not permit a party to request, or authorize a hearing officer
| ||
to entertain, reconsideration of the decision itself. The | ||
statute of
limitations for seeking review of the decision | ||
shall be tolled from the date
the request is submitted until | ||
the date the hearing officer acts upon the
request. The | ||
hearing officer's decision shall be binding upon the school | ||
district
and the parents unless a civil action is commenced.
| ||
(i) Any party to an impartial due process hearing | ||
aggrieved by the final
written decision of the impartial due | ||
process hearing officer shall have the
right to commence a | ||
civil action with respect to the issues presented in the
| ||
impartial due process hearing. That civil action shall be | ||
brought in any
court of competent jurisdiction within
120 days | ||
after a copy of the
decision of the impartial due process | ||
hearing officer is mailed to the party as
provided in
| ||
subsection (h). The civil action authorized by this subsection | ||
shall not be
exclusive of any rights or causes of action | ||
otherwise
available. The commencement of a civil action under | ||
this subsection shall
operate as a supersedeas. In any action | ||
brought under this subsection the
Court shall receive the | ||
records of the impartial due process hearing, shall
hear | ||
additional evidence at the request of a party, and, basing its | ||
decision on
the preponderance of the evidence, shall grant | ||
such relief as the court
determines is appropriate. In any | ||
instance where a school district willfully
disregards | ||
applicable regulations or statutes regarding a child covered |
by this
Article, and which disregard has been detrimental to | ||
the child, the school
district shall be liable for any | ||
reasonable attorney's fees incurred by the
parent in | ||
connection with proceedings under this Section.
| ||
(j) During the pendency of any administrative or judicial | ||
proceeding
conducted
pursuant to this Section, including | ||
mediation (if the school district or other public entity | ||
voluntarily agrees to participate in mediation), unless the | ||
school district and the
parents or student (if at least 18 | ||
years of age or emancipated) otherwise agree, the student | ||
shall remain in
his or her present educational placement and | ||
continue in his or her present
eligibility status and special | ||
education and related services, if any. If mediation fails to | ||
resolve the dispute between the parties, or if the parties do | ||
not agree to use mediation, the parent (or student if 18 years | ||
of age or older or emancipated) shall have 10 days after the | ||
mediation concludes, or after a party declines to use | ||
mediation, to file a request for a due process hearing in order | ||
to continue to invoke the "stay-put" provisions of this | ||
subsection (j). If applying for initial admission to the
| ||
school district, the student shall, with the consent of the | ||
parents (if the student is not at least 18 years of age or | ||
emancipated), be placed in the school district program until | ||
all such proceedings
have been completed. The costs for any | ||
special education and related services
or placement incurred | ||
following 60 school days after the initial request for
|
evaluation shall be borne by the school district if the | ||
services or placement
is in accordance with the final | ||
determination as to the special education and
related services | ||
or placement that must be provided to the child, provided that
| ||
during that 60-day period there have been no delays caused by | ||
the child's
parent. The requirements and procedures of this | ||
subsection (j) shall be included in the uniform notices | ||
developed by the State Superintendent under subsection (g) of | ||
Section 14-8.02 of this Code.
| ||
(k) Whenever the parents of a child of the type described | ||
in
Section 14-1.02 are not known or are unavailable or the | ||
child is a youth in care as defined in Section 4d of the | ||
Children and Family Services Act, a person shall be assigned | ||
to serve as surrogate parent for the child in
matters relating | ||
to the identification, evaluation, and educational placement
| ||
of the child and the provision of a free appropriate public | ||
education to the
child. Persons shall be assigned as surrogate | ||
parents by the State
Superintendent of Education. The State | ||
Board of Education shall promulgate
rules and regulations | ||
establishing qualifications of those persons and their
| ||
responsibilities and the procedures to be followed in making | ||
assignments of
persons as surrogate parents.
Surrogate parents | ||
shall not be employees of the school district, an agency
| ||
created by joint agreement under Section 10-22.31, an agency | ||
involved in the
education or care of the student, or the State | ||
Board of Education.
Services of any person assigned as |
surrogate parent shall terminate if the
parent
becomes | ||
available unless otherwise requested by the parents. The | ||
assignment of a person as surrogate parent at no time
| ||
supersedes, terminates, or suspends the parents' legal | ||
authority
relative to the child. Any person participating in | ||
good faith as surrogate
parent on behalf of the child before | ||
school officials or a hearing officer
shall have immunity from | ||
civil or criminal liability that otherwise might
result by | ||
reason of that participation, except in cases of willful and
| ||
wanton misconduct.
| ||
(l) At all stages of the hearing or mediation , the hearing | ||
officer or mediator shall require that
interpreters licensed | ||
pursuant to the Interpreter for the Deaf Licensure Act of 2007 | ||
be made available by the school district for persons who are | ||
deaf
or qualified interpreters be made available by the school | ||
district for persons whose normally spoken language is other | ||
than English.
| ||
(m) If any provision of this Section or its application to | ||
any person or
circumstance is held invalid, the invalidity of | ||
that provision or application
does not affect other provisions | ||
or applications of the Section that can be
given effect | ||
without the invalid application or provision, and to this end | ||
the
provisions of this Section are severable, unless otherwise | ||
provided by this
Section.
| ||
(Source: P.A. 100-122, eff. 8-18-17; 100-159, eff. 8-18-17; | ||
100-849, eff. 8-14-18; 100-863, eff. 8-14-18.)
|
Section 95. No acceleration or delay. Where this Act makes | ||
changes in a statute that is represented in this Act by text | ||
that is not yet or no longer in effect (for example, a Section | ||
represented by multiple versions), the use of that text does | ||
not accelerate or delay the taking effect of (i) the changes | ||
made by this Act or (ii) provisions derived from any other | ||
Public Act.
| ||
Section 99. Effective date. This Act takes effect upon | ||
becoming law.
|