Author: David Wolowitz & Michael O'Connor, Prairie State Legal Services
Last updated: March 2007

(Chapter 5 Section 1 of Guidebook of Laws and Programs for People with Disabilities)

 

The Individuals With Disabilities Education Act (IDEA): Part B

What Is It? IDEA is a federal law which seeks to make sure that students with disabilities receive a free appropriate public education. It does this in Part B by providing for federal funding to states (and to school districts), on the condition that they agree to follow the requirements of the law.

What Is Its Purpose? To make sure that all children with disabilities can get special education and related services designed to meet their unique needs. To make sure that the rights of children with disabilities and their parents or guardians are protected. To help states and localities provide for the education of all children with disabilities.

Who Can Benefit? Children with certain specified disabilities who need special education and related services due to those disabilities.

I. Your Legal Rights

The Right to a Free, Appropriate Public Education

The Individuals with Disabilities Education Act (IDEA) is a federal law. It was amended in 2004 as the Individuals with Disabilities Education Improvement Act (“IDEA 2004"). Like other states, Illinois receives federal funding under Part B of IDEA. To qualify for this funding, Illinois must submit assurances to the U.S. Secretary of Education. 

The assurances must show that Illinois and every school district in Illinois have  programs and policies in effect that guarantee to all children with disabilities, between the ages of 3 and 21, the right to a “free, appropriate public education (FAPE).” The State’s and the school districts’ programs and policies must be consistent with the specific requirements of IDEA.

Most of the rights available to children with disabilities and their parents under Illinois state law come directly from IDEA. However,  Illinois and the other states have some flexibility in developing their own standards, as long as they do not conflict with IDEA. All of these state standards are enforceable in state or federal court as requirements of IDEA.

What Is a Free Appropriate Public Education?
To qualify, states must provide a "free, appropriate public education" (FAPE) to students with certain disabilities.  FAPE refers to educational instruction that:

• Is designed to meet the unique needs of the child with disabilities (known as "special education"); 
• Must be supported by services that are necessary to permit the child to benefit from the instruction (known as "related services"); and
• Must be provided by or paid for by the local school district, with no extra charge to the student or the family.  

The term "free appropriate public education" means special education and related services that:

• Are provided at public expense, under public supervision and direction, without charge;
• Meet the standards of the Illinois State Board of Education;
• Include an appropriate preschool, elementary, or secondary school education; and
• Are provided as written in an individualized education program (IEP).

Is a Residential Placement Free?
Sometimes a child's special education plan requires that the child be placed in a public or private residential program. This might include placements at private or state operated schools, such as a state school for persons who are deaf or blind.

Residential placements may involve charges for non medical care and room and board. Your child's right to a free education means that you do not have to pay these costs if the placement has been approved by the school district.

Is a Private School Placement Free?
If the school district makes a decision to place a child with a disability in a private school, the district must pay the costs imposed by that school. However, a parent who elects to place a child in a private school or facility without the consent or referral of the local school district is not entitled to have the district pay for that placement, as long as the district has attempted to make FAPE available to the child. Sometimes, the parents and the school district will disagree whether a private school placement is appropriate. Any such disagreements can be resolved by means of a due process hearing. See Section III. below.

The Meaning of "Special Education"   

This refers to education which is designed specially for the needs of a particular child. The needs of the child must be identified before the appropriate program can be designed.
 

The term “special education” means instruction and services that are specially designed to meet the needs of a particular child with a disability. It can include:

• Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings and
• Instruction in physical education and
• Vocational education

The concept of special education is very  broad. It covers not only traditional academic skills, but also basic functional skills. For children with severe disabilities, it may include the more elementary life skills, such as eating, walking and talking.

The Meaning of "Related Services"

Frequently, a student receiving special education services can benefit from those services only if the school district provides some additional supportive services. Those services are collectively referred to as "related services."

The term "related services" means transportation and other supportive services that are required to help a child with a disability benefit from special education.   

The most commonly provided related services include:

• Assistive technology
• Audiology
• Counseling services
• Early identification and assessment of disabilities
• Diagnostic medical services
• Occupational therapy
• Orientation and mobility services
• Parent counseling and training
• Physical therapy
• Recreation
• Rehabilitation counseling
• School health services
• School psychological services
• School social work services
• Special readers
• Braillists, typists, and interpreters
• Speech-language pathology services
• Transition services
• Transportation and
• Vocational education

Related services are discussed in more detail below:

Transportation
This includes:

• Travel to and from school and between schools; 
• Travel in and around school buildings; 
• Specialized equipment, such as special or adapted buses, lifts, and ramps, and personnel who provide assistance to students in the course of transportation. 
  Example: If the child needs a special class for a particular disability, the school must transport the child to the class facility where the class is held.

Speech-Language Pathology
As to children with speech and language impairments, this includes:

• Screening, diagnosis and appraisal of specific impairments;
• Identifying children with such impairments; 
• Referring to medical or other professionals for services to improve speech and language, and following-up with such professionals;
• Planning and developing interventions and programs; and
• Counseling and guiding parents, children and teachers about such impairments.

Audiology 
This includes such services as:

• Identifying children with hearing loss; 
• Determining the range, nature, and degree of hearing loss and referring for medical attention;
• Providing language therapy, auditory training, lip-reading, hearing evaluation, and speech conservation;
• Creating and administering programs to prevent hearing loss;
• Counseling and guiding students, parents and teachers about hearing loss; and
• Determining a child's need for hearing aids, fitting an appropriate aid, and evaluating its effectiveness.

School Psychological Services
These include:

• Conducting psychological and educational tests, and interpreting results;
• Consulting with staff in planning school programs to meet a child’s special needs, as indicated by the testing;
• Managing a program of psychological services, including psychological counseling for children and parents; and
• Helping to complete a functional behavioral assessment and positive behavioral intervention strategies.

Physical (PT) and Occupational Therapy (OT)
This includes:

• Improving, developing or restoring functions that have been impaired or lost through illness, injury, or deprivation;
• Improving ability to act independently; and
• Preventing, through early intervention, initial or further loss of function.

Recreation 
This includes services such as: 

• Assessing a child’s leisure ability;
• Therapeutic recreational activities;
• Recreation programs in schools and community agencies; and
• Leisure education.

School Social Work Services
This includes:

• Preparing a social or developmental history;
• Family and individual counseling;
• Working with problems at home, school or in the community that affect the child's adjustment in school;
• Mobilizing school and community resources to enable the child to receive appropriate school services; and
• Helping to complete a functional behavioral assessment and positive behavioral intervention strategies.

Medical Services for Diagnostic or Evaluation Purposes 
This refers to services provided by a licensed physician. Medical services are permitted as "related services" only if they are necessary to diagnose the child's disability which results in the need for special education. Other types of medical services, including treatment, are not included as "related services."
Examples:  A doctor's services are "related services" where he provides a neurological evaluation of a child who has a seizure disorder, visual difficulty, and learning disabilities. However, surgically implanted medical devices are not "related services."

Assistive technology
Each school district must make sure that assistive technology devices and services are available to a child with a disability, if required as part of the child's special education. This includes any service that directly helps a child with a disability to select, obtain or use an "assistive technology device." Examples include:

• Evaluating a student's needs;
• Buying or leasing assistive technology devices;
• Selecting those devices, or designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing them;
• Coordinating such devices with existing education and rehabilitation plans;
• Training or technical assistance for a child or family, for persons providing education or rehabilitation services, for employers, or others involved with the student.

School Health Services
This includes:

• Preparing a health assessment and recommending additional medical evaluations as indicated;
• Interpreting health assessment results;
• Consulting with staff in planning school programs to meet a child’s health needs; 
• Planning and managing a program of school health services for all children;
• Identifying and mobilizing community health resources to help children learn; and
• Administering medication. 

However, if a particular medication can be given to a child at times other than during the school day, a school is not required to provide nursing services to administer the medication.

Some procedures may seem to be excluded medical services because they are not diagnostic. However, if they involve a simple procedure that can be performed easily by a lay person with some minimal training, they can be required as a "related" school health service. 
Examples:  
(1)  A school was required to suction a tracheotomy for a 16 year old student with developmental disabilities, as a "related service."
(2)  A child has a disability which prevents the child from emptying his bladder voluntarily. The child requires a procedure called "clean intermittent catheterization (CIC)." It is a simple procedure that may be performed in a few minutes by a lay person with less than an hour's training. The school should provide it as a "related service."

Parent Counseling and Training
This means helping parents to understand their child's special needs, providing parents with information about child development, and helping parents to acquire skills that will allow them to support the implementation of their child's IEP.

Orientation and Mobility Services
These are services to a blind or visually impaired child to enable the child to be safely oriented to school, home, and community. This includes teaching a child:

• To use information received by the senses (such as sound, temperature and vibrations) to establish or maintain orientation and line of travel.  

Example:

• Using sound at a traffic light to cross the street.
• To use a long cane to supplement visual travel skills; and
• To use remaining vision and low vision aids.

Rehabilitation Counseling
Services provided in individual or group sessions that focus on career development, preparation for employment, achieving independence, and integration in the workplace and community.

Travel Training 
This refers to teaching children with significant cognitive disabilities to learn the skills necessary to move effectively and safely from place to place within their environment.

Other Related Services 
These might include artistic and cultural programs, and art, music and dance therapy, if the services are required to help a child benefit from special education. Other related services might include special reader services, braillists, typists, and interpreters.

"Related Services" Must Be Provided By Qualified Persons

Only persons who are qualified can provide the related services described above. The term "qualified" generally means that the person has met the certification, licensing, or registration requirements of the State of Illinois or the Illinois State Board of Education.

Special Education Must Be Provided to Eligible Children From Age 3 - 21

A child who needs to continue with a public school education stays eligible until age twenty one. The child who becomes twenty one during the school year is allowed to complete that year.

However, districts need not provide FAPE for a student with a disability who has graduated with a regular high school diploma or its equivalent, even if the student has not yet reached age 21. Likewise, a student is not entitled to FAPE if s/he is 18  through 21 years of age and is incarcerated, if immediately before going to jail or prison the student was not identified as eligible and did not have an individual education plan. This means that the State must provide special education for those aged 18-21 who are incarcerated, if they had an IEP before going to jail or prison.

Note: IDEA also provides for early intervention services (EIS), which are discussed in Chapter 3.  EIS programs are for children under age 3 who have a developmental delay, who have a high probability of developmental delay or who are at risk of having a developmental delay.

Children Who Qualify for Special Education

Only "children with disabilities" are entitled to special education under IDEA. Not every type of disability will qualify a child for special education.

The term"children with disabilities" refers to children with certain specified impairments and who, because of those impairments, need special education and related services.

We describe below with a the kinds of disabilities that qualify under IDEA:

Mental Retardation
This term means the child has an IQ and adaptive behavior that are significantly below average. These characteristics must have first shown up during the child’s developmental period. Also, they must adversely affect the child's educational performance.

Deafness and Hearing Impairments
"Deafness" refers to a hearing impairment that is so severe that even with a hearing aid:

• The child is impaired in processing verbal information through hearing, with or without amplification; and
• The impairment adversely affects the child's educational performance.

A "hearing impairment" means any kind of impairment in hearing, other than deafness.  It can be either permanent or fluctuating. It must adversely affect a child's educational performance.

Speech or Language Impairments   
This means a communication disorder such as stuttering or impaired articulation. It can refer to a language or a voice impairment. It must adversely affect a child's educational performance. It is not limited to language impairments in English if the child speaks only another language and is eligible for bilingual educational services.

Blindness and Visual Impairments
This means an impairment in vision that, even with correction, adversely affects a child's educational performance.The term includes both partial sight and blindness.

Emotional Disturbance
The term includes schizophrenia. It does not include children who are socially maladjusted without meeting the requirements below. A child has ED who has one or more of the following characteristics over a long period of time and to a "marked degree":

• 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 unhappiness or depression; or
• A tendency to develop physical symptoms or fears associated with personal or school problems.

At least one of the above characteristics present must adversely affect a child's educational performance.

Autism
This refers to a developmental disability which significantly affects verbal and nonverbal communication and social interaction. It is generally evident before age three. It must adversely affect a child's educational performance. A child with autism often shows other characteristics, such as:

• Engaging in repetitive activities and stereotyped movements;
• Resisting environmental change or change in daily routines; and
• Responding unusually to sensory experiences.  

Traumatic Brain Injury
This means an injury to the brain caused by an external physical force. It must result in a total or partial functional disability or a psycho-social impairment, or both. It must  adversely affect educational performance.
 
 The term applies to open or closed head injuries. The injuries must cause impairments in one or more of the following areas:

• Cognition
• Language
• Memory
• Attention
• Reasoning
• Abstract thinking
• Judgment
• Problem solving
• Sensory, perceptual and motor abilities
• Psycho-social behavior
• Physical functions
• Information processing and
• Speech  

The term does not apply to brain injuries that are hereditary or degenerative, or brain injuries induced by birth trauma.

Orthopedic Impairments
This term means a severe orthopedic impairment that adversely affects a child's educational performance. It includes impairments caused by a hereditary abnormality (e.g., clubfoot, absence of a hand), impairments caused by disease (e.g., polio, bone tuberculosis), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).

The term "orthopedic impairments" generally refers to bone or skeleton deformities or crippling injuries.

Other Health Impairments
This  means having limited strength, vitality or alertness, including a heightened sensitivity to environmental stimuli. This can be due to chronic or acute health problems (e.g., asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, heart condition, hemophilia, lead poisoning, tuberculosis, rheumatic fever, nephritis, and sickle cell anemia). The impairment must adversely affect a child's educational performance.

A child with AIDS could become disabled if his or her condition has deteriorated, and the disease has adversely affected educational performance. Children do not have a disability merely because they have either AIDS or are infected with the HIV virus .

Specific Learning Disabilities
This means a disorder in one or more of the basic psychological processes involved in understanding or in using spoken or written language. It may result in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations.  

The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. It does not apply to children with learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of cultural, environmental, or economic disadvantage.

Multiple Disabilities
This refers to co-occurring impairments (such as mental retardation-blindness, mental retardation-orthopedic impairments, etc.). The combination must cause such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. The term does not include deaf-blindness.
 
Deaf-Blindness
This refers to co-occurring hearing and visual impairments. Their combination must cause 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.
 

The Impairments Must Adversely Affect Educational Performance

To be eligible for special education under IDEA, the child must have one or more of the impairments described above.  The definition of each impairment includes a requirement that the impairment adversely affect "educational performance." That term is not defined in IDEA or its regulations.

However, it is generally understood that an adverse effect on educational performance can include any or all aspects of a child's functioning in school. All aspects of school functioning may be considered for determining adverse effect –  academic performance, behavioral difficulties, poor social skills and disorganization. For the effect to be "adverse," the child does not have to fail to pass a grade, and does not have to be placed in a special education class.

In some circumstances, adverse effect in academic performance will be shown by:

• Significantly below expected scores on an individually administered nationally-normed achievement tests, considering the student’s age, grade and ability, or
• Academic performance in the  classroom that is inconsistent or incompatible with average classroom norms in one or more content areas. For pre-schoolers, it could be shown by a child’s  developmental skills that are inconsistent or incompatible with developmental guideline expectations in one or more developmental skill areas, over some period of time.

Special Education Includes Physical Education, Vocational Education and Extra-curricular Activities

Physical Education
Special education includes "physical education." This includes regular P.E. classes, and special physical education, adapted physical education, movement education, and motor development.

"Physical education" refers to the following: 

• The development of physical and motor fitness;
• Fundamental motor skills and patterns;
• Skills in aquatics, dance, and individual and group games and sports.
   
  Each child with a disability must have the chance to participate in the regular P.E. program available to children without disabilities. The exceptions are where the child needs a specially designed P.E. program, or is in a separate facility. When a child is enrolled full time in a separate facility, that facility must make sure that the child receives the appropriate P.E. services.     

If the child needs specially designed or "adaptive" P.E., the district must provide the services directly, or make arrangements for the services to be provided through other public or private programs. 

Vocational Education
Special education includes vocational education. Vocational education programs must be specially designed if necessary to help a student with a disability benefit fully from those programs. In addition, each local school district must make sure that its children with disabilities have available to them the variety of vocational educational programs available to children without disabilities in its area.

Extracurricular Activities
Children with disabilities must have access to the district’s extracurricular activities. The district must provide non-academic and extracurricular services and activities in a way that gives children with disabilities an equal opportunity to participate as given to children without disabilities. Each district must make sure that each child with a disability participates in those activities with children without disabilities to the maximum extent appropriate to the needs of that child.
Non-academic and extracurricular services and activities may include: lunch, recess periods, counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs, field trips, and employment of students.

In addition, the "least restrictive environment" rule discussed below applies to extracurricular activities. Each local school district must make sure that each child with a disability participates in those activities as much as possible with those children who do not have disabilities.

Identifying and Evaluating Children Who Need Special Education

The Child-Find System
Illinois must maintain what is sometimes known as a "child find system." This refers to policies and procedures that make sure that all children in the state (from birth to age 21), who qualify for and need special education, are identified, located, and evaluated. Illinois must use certain methods to determine which children should receive needed special education.

Some of those methods include: 

• An annual screening of children under the age of 5, to identify those who may need early intervention or special education and related services;
• Speech and language screening of each child upon initial enrollment in a public school district in Illinois; or
• Annual screening by teachers and other professional personnel, for referral of those children who show problems which interfere with their educational progress and/or their adjustment to the educational setting.
• Ongoing coordination with early intervention programs to identify children from birth through two years of age who have or are suspected of having disabilities;
• Coordination and consultation with private schools located within the district.

Children Who Are "Identified" Must Be Evaluated
When a child is identified through the screening process, the child must be referred for a special education evaluation.  This is sometimes known as a “case study” evaluation.  The child also may be referred for an evaluation when the child shows problems which interfere with educational progress and/or adjustment to school.

The purpose of the initial evaluation is to determine:

• If the child is a child with a disability and thereby eligible for special education
• The child's present educational and developmental needs.

There must be an evaluation before the initial placement of a child with a disability in a special education program. This must be a full evaluation of the  child's educational needs.

The Referral for a Special Education Evaluation
Any concerned person may make a referral for a case study evaluation. They include but are not limited to the following:

• School district personnel;
• The parents of the child;
• The child;
• Community service agencies;
• Persons having custody of the child;
• Other professional persons having knowledge of the child's problems; or
• The State Board of Education.

The local school district must decide on  the appropriateness of the referral. The district will decide what further action should be taken, and whether to start the necessary procedures. To determine whether the referred child requires an evaluation, the local school district may conduct preliminary evaluation procedures.
Examples: These might include observation of the child, assessment for instructional purposes, consultation with the teacher or a conference with the child.

When the district decides not to conduct an evaluation, the parents must be notified, in writing, of the following:

• The date of the referral and the reasons the evaluation was requested;
• The reasons the district has decided not to conduct an evaluation.

Parents can appeal the decision to not have an evaluation by requesting a due process hearing. This is allowed if the referral was made by parents of the child, or other persons having custody.

If the district decides that it will conduct an evaluation, it must notify the parents of the reasons for that decision.  Before it can actually conduct the evaluation, the district must get the permission of the child’s parents or guardian. If permission is denied, the district can request a due process hearing to conduct the evaluation without parental permission.

The Evaluation Process
Any evaluation must be appropriate to the nature of the child’s problems. The initial evaluation must be completed within sixty (60) days of receipt of parental consent, unless the State establishes a different time-frame. 
Note: Under current State rules, the evaluation and the subsequent IEP meeting must be completed within 60 school days after the date of the referral.

This time-frame can be extended if the parent repeatedly fails or refuses to produce the child for an evaluation. It can also be extended if the child enrolls in a new school district after giving consent to an evaluation but before the previous school district decided whether the child is a child with a disability. In order to extend the 60 day time-frame, however, the new school district must make progress to promptly complete the evaluation and must agree with the parent to a new time frame for completion.

Each school district must make sure that any evaluation is appropriate for each child being considered for special education and related services. The intensity of the evaluation must be based on the complexity of the child's problems. In conducting the evaluation, the school district must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.

A group known as the IEP Team will coordinate and consider the evaluation. State rules determine the composition of the IEP Team. The IEP Team must determine the specific assessments needed to evaluate the individual needs of the child. The members of the IEP Team are determined by law. They are as shown on the following list. 

The Child’s IEP Team must include:

• The child’s parents, if they choose to participate;
• At least one regular education teacher if the child is participating or may participate in the regular education environment. This should be the teacher who is or may be responsible for implementing a portion of the IEP so that the teacher can participate in discussions about how best to teach the child;
• At least one special education teacher. If known, this shall be the person who is or will be responsible for implementing a portion of the child’s IEP. It should be the speech and language pathologist if the child is receiving only speech and language services;
• A representative of the school district who is qualified to provide, or supervise the provision of, special education and is knowledgeable about the curriculum and the district’s resources and who has the authority to commit those resources;
• Someone who is qualified to interpret the instructional implications of the evaluation results and make an informed decision as to whether the child needs special education and related services.

The IEP team should include the following other persons, in the following situations: 

• A qualified bilingual specialist or bilingual teacher, if the presence of such a person is needed to assist the other participants in understanding the child’s language and cultural factors;
• A person knowledgeable about positive behavior strategies for a child whose behavior impedes learning;
• A representative of any other agency that is likely to be responsible for providing or paying for transition services in the case of a student for whom transition services must be planned.

In deciding what assessment tools and strategies to use, the IEP team must review and evaluate existing information about the child, including:

• Information provided by the child or the child’s parents;
• Current classroom-based assessments and observations;
• Observations by teachers and providers of related services;
• Information from specialized evaluations performed by independent evaluators, medical evaluators, behavioral intervention specialists, bilingual specialists.
• The student’s physical condition, social and cultural background and adaptive behavior. 

On the basis of that review, the IEP team must identify what additional data, if any, are needed to determine:

• Whether the child is a child with a disability, and the educational needs of the child;
• The present levels of academic achievement and related developmental needs of the child;
• Whether the child needs special education and related services, and
• Whether any additions or modifications to special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP and to participate, as appropriate, in the general education curriculum.

The district must make sure that the child is assessed in all areas of suspected disability. No single measure or assessment can be used as the sole basis for deciding whether the child is a child with a disability or deciding the child’s appropriate educational program.

For any child who has been determined to be mentally impaired, the IEP Team must make sure that a school psychologist conducts a psychological evaluation. The school psychologist must make a recommendation with respect to eligibility for special education services.

In addition, the district must conduct other specialized evaluations specific to the nature of the child's problems, at no cost to the parents. These might include:

• An appropriate medical examination for diagnostic and evaluative purposes, for any child with either a suspected physical, health, vision or hearing impairment.
• A speech and language evaluation, for any child suspected of having a speech or language impairment.
  Note: Children who have a speech impairment as their primary disability may not need a complete battery of assessments. 
• An audiological evaluation by an audiologist, for any child with a hearing impairment, when necessary and appropriate to the needs of a child.

If a child with disabilities transfers from another school district, the district must coordinate the evaluation with the child’s prior schools, as necessary and as expeditiously as possible. This is to ensure prompt completion of full evaluations.

Tests and Evaluation Materials
The Illinois State Board of Education (ISBE) must make sure that each school district has procedures which meet the requirements for the testing and evaluation of children. The ISBE also must make sure the districts are using these procedures. 

Testing and evaluation materials and procedures cannot be racially or culturally discriminatory. Also, the ISBE and local school districts must make sure that tests and other evaluation materials:

• Are technically sound and assess cognitive and behavioral factors as well as physical or developmental factors;
• Are provided in the child's native language or other mode of communication;
• Have been validated and are reliable for the specific purpose for which they are used;
• Are administered by trained and knowledgeable personnel;
• Are administered in accordance with any instructions that come with them;
• Are tailored to assess specific areas of educational need, not just to provide a general I.Q. score; and 
•  Accurately reflect the child's aptitude or achievement level, or whatever other factors the test tries to measure. The tests should not reflect the child's impaired sensory, manual, or speaking skills, except where those skills are the factors which the test tries to measure.

Evaluations To Determine Specific Learning Disabilities
The team evaluating a child suspected of having a specific learning disability must include:

• The child's regular teacher; or if the child does not have a regular teacher, a regular classroom teacher or other qualified person to teach a child of that age; and
• At least one person qualified to conduct diagnostic examinations of children, such as a school psychologist, speech-language pathologist, or remedial reading teacher.

At least one team member other than the child's regular teacher must observe the child's academic performance in the regular classroom setting.

A team may determine that a child has a specific learning disability if the child does not achieve at his or her age and ability levels in one or more of several specified areas, when provided with learning experiences appropriate for the child's age and ability levels. 

In addition, the school district may (but is not required to) consider whether there is a severe discrepancy between achievement and intellectual ability. The district may use a process that determines if the child responds to scientific, research-based intervention.
 

Determination of Eligibility by the IEP Team
When the tests and other evaluation procedures are completed, the IEP Team must meet to interpret the evaluation data and determine whether the child is eligible for special education and related services. This meeting is sometimes known as the “multi-disciplinary conference” or MDC.

The team must prepare a report that includes:

• A description of its consideration of pre-existing information about the child, all new evaluation reports obtained, and any other information relevant to the decision about the child’s eligibility.
• The date of the meeting;
• The signatures of the participants, indicating they were present at the meeting; and
• Any separate written statement provided by a participant who wants to disagree in writing with the conclusions expressed in the team’s report.

At the end of the meeting, the district must give to the parent a copy of the report.  Within 10 school days after the meeting, the district must give the parent a written notice that states whether or not the child is eligible for special education and related services.  On request, a parent can receive any evaluation reports.

The IEP Team can find a child eligible for special education only if the child meets the criteria for a child with a disability, as discussed above. The Team cannot find that a child is eligible for special education if the determinant factor is a lack of appropriate instruction in reading, or lack of instruction in math or limited English proficiency. 

The Independent Educational Evaluation
Parents have the right to obtain an “independent educational evaluation” of their child. An “independent evaluation” is an evaluation conducted by a qualified examiner who is not employed by the school district. On request, the district must give parents the list of independent educational evaluators developed by the Illinois State Board of Education (ISBE). 

Notice to the school. If the parents or guardian of the child are dissatisfied with either the manner or results of the district’s own evaluation, they can submit a written request directed to the district superintendent asking for an “independent educational evaluation” at public expense.   

The cost of the independent educational evaluation ordinarily must be paid by the school district.  However, if it chooses to do so, the school district may request a due process hearing to show that its evaluation was appropriate.  The school district does not have to pay for the independent evaluation if:

• It requested a due process hearing within five (5) school days following receipt of a written parental request for an independent educational evaluation, and
• The district proved at the hearing that their own evaluation was appropriate.

If the district's evaluation is shown to be inappropriate, the district must pay for the independent educational evaluation or reimburse the parents for its cost. 

If the final decision of the hearing and review process is that the school district's evaluation is appropriate, the parents still have the right to an independent educational evaluation, but not at public expense. Parents must use other funds to pay the costs of that evaluation.  

An independent educational evaluation at public expense must be completed within 30 days after receipt of a parent's written request.  However, that period will be extended if the school district initiates a due process hearing to determine whether its evaluation was appropriate or the parties agree that the 30-day period should be extended. If either party wants an extension but the other party will not agree to one, the district must initiate a due process hearing within 10 school days after the date on which the extension was proposed.

When an independent evaluation is obtained at public expense, the evaluator must be:

• Someone named on the ISBE list of evaluators with regard to the relevant type(s) of evaluation; or
• Someone else who has the credentials required by the State’s special education regulations (in the Illinois Administrative Code.)

If the parent wants the evaluator to have specific credentials in addition to those required by the regulations, the parent and the school district must agree on certain things before the start of an independent educational evaluation at public expense. In that situation, they must agree on the qualifications of the examiner and the specific evaluation(s) to be completed. If agreement cannot be reached, the district must initiate a due process hearing.  

Although the district may ask the parent to specify the areas of disagreement with the district’s evaluation, parents are not required to do so. 

If parents obtain an independent educational evaluation (regardless of who pays), the IEP Team must consider the results of the independent evaluation in any decision it makes regarding the child’s special education. The district must send the notice convening the IEP Team’s meeting within 10 days after receiving the evaluation report or after the parent requests a meeting to consider the results of an independent evaluation. In addition, parents can present the independent evaluation as evidence at a due process hearing.     

 

The Individualized Education Program (IEP)

Whenever a student has been found to be eligible for special education, the team must develop an “individualized education program” (IEP) for that student. The team must also revise an IEP upon completion of any re-evaluation.

What is an IEP? An IEP is a written statement for each child with a disability developed in a team meeting. The IEP sets out a plan to identify and meet the unique needs of the child. The statement must include some very specific contents.

The IEP is very important. It has a variety of purposes and functions. Among other things, the IEP:

• Is a way for parents and school personnel to communicate and reach a joint decision about the child’s special education program;
• Provides an opportunity for the parents and the district to resolve any differences;
• Sets out in writing a commitment by the school district of necessary resources;
• Provides both a management tool and a compliance/monitoring document; and
• Serves to evaluate a child's progress.

Who is Responsible for Preparing the IEP?
Local School Districts. Each local school district will establish an IEP or revise one, whichever is appropriate, for each child with a disability. Each district  is responsible for conducting meetings for the purpose of developing, reviewing, and revising the IEP.

The Illinois State Board of Education. The ISBE must make sure that each school district in the State develops and implements an IEP for each child with a disability. This includes any child with a disability who is placed in or referred to a private school or facility, and receives special education or related services from the public school district.

When the IEP Must Be in Effect
At the start of each school year, each school district must have an IEP in effect for every child who is receiving special education from them. An IEP must be in effect before the school provides special education and related services to a child. 

To be “in effect,” the district must have properly developed the IEP. Also, both the parents and the school must regard the IEP as appropriate, in terms of the child's needs, specified goals and objectives, and services to be provided. The district must implement an IEP as soon as possible following the required meetings.  

For a child with a disability receiving special education for the first time, the district must develop an IEP before placement. A district may temporarily place an eligible child in a program as part of the evaluation process before the IEP is finalized.

Meetings to Develop, Review or Revise the IEP
Each school district is responsible for conducting IEP meetings. At these meetings, the district develops the IEP of a child with a disability. 

Initially, the district must hold an IEP meeting within 30 calendar days of the date of the meeting when the child is determined eligible for special education and related services. Usually, the two meetings take place at the same time. 

From time to time, each school district must conduct meetings to review each child's IEP. If appropriate, the district will revise the IEP at these meetings. The IEP review meetings must occur at least once a year. At the district’s discretion, they may be held at any time during the year, including at the end of the school year, during a summer, or on the anniversary date of the last meeting. In addition, a school district should grant any reasonable request by the child's parents for a meeting. Although tape recording of meetings is not required, it is allowed when requested either by the parents or the school district. A parent will be permitted to tape a meeting even if another member of the team objects.

Who Can Participate at the IEP Meeting?
Participants in meetings to develop, review, or revise IEP's include:

• Members of the IEP team, including the parents.
• Other persons who have knowledge about the child, including providers of related services, at the discretion of the parent or district, and
• The child, where appropriate.

Note: A child’s presence at the IEP meeting is appropriate whenever the child's parent decides that it is appropriate, although the school and the parent may discuss the matter. 

The district must invite the student when a purpose of the meeting is to plan for “transition services” needed by the student. If the student does not attend, the district must take other steps to make sure that the student’s preferences and interests are considered.

A school district violates IDEA when it develops an IEP without input and participation of the child's parents, regular classroom teacher, or representatives from the child's school.

Note: IDEA now allows IEP team members to be excused from attendance if their area is not being discussed at the IEP meeting.

Parental Participation at IEP Meetings
Parents have the right to be equal participants along with school personnel. The IEP meeting will normally include one or both of the child's parents, or the child's guardian. 

Each school district must make sure that parents are present or given the chance to participate. They are entitled to a notice. The notice needs to be sent to the parents at least 10 days before the meeting.

The district must notify the parents in writing of the purpose of the meeting, the proposed date, time, and place for the meeting, who else will be in attendance, and the parent’s right to invite other individuals with knowledge or special expertise regarding the child. If a parent indicates that the proposed date or time is inconvenient, the district must make reasonable efforts to accommodate the parent’s schedule. 
 
If neither parent can attend, the district must use other methods to involve the parents, including rescheduling the meeting, and individual or conference telephone calls.

The district may conduct a meeting without a parent in attendance if the district is unable to obtain the parents’ participation. The district must have a record of its attempts to arrange a mutually agreed on time and place.

The district must make sure that the parents understand the proceedings. They must arrange for an interpreter for parents who are deaf or whose native language is other than English.  The district must give a parent, on request, a copy of the IEP.  Parent signatures on the IEP indicate a parent’s presence at the meeting, and do not necessarily mean that the parent agrees with the IEP in all respects.

Other Individuals Whom the Parent Can Bring to the IEP Meeting
The parents do not have to bring anyone else with them to the IEP meeting. They do have the right to do so, however. These might include:

• A friend or neighbor;
• Someone not working for the district who is familiar with the applicable laws and with the child's needs;
• A specialist who has conducted an independent evaluation of the child; or 
• A lawyer or other representative. 

Meeting Requirements When Child is Placed in a State-Operated or Private School
Before a school district places a child with a disability in a State-operated or private school or facility, the district must conduct a meeting to develop an IEP for the child, and must conduct annual reviews. The district must invite representatives of potential service providers to assist in identifying or verifying the appropriate placement for that child, and if necessary, use alternative methods such as conference calls to help assure their attendance. 

A State-operated or private school or facility may conduct any meetings to revise the child’s IEP. When this happens, the public school district must make sure that the parents and a district representative are involved in any decision about the IEP and agree to any proposed changes.

The district remains responsible for the development and implementation of the child’s IEP and for compliance with the legal requirements.

Factors in Development of IEP
The IEP Team must consider the strengths of the child and the concerns of the parents for enhancing the child’s education. In addition, the Team must consider the results of the most recent valid evaluation and any available assessment information that may be useful.

Consideration of Certain Specific Factors. Certain needs must be documented in the IEP if the IEP Team determines that one or more of the factors described below might interfere with learning. Those factors include:

• Whether the child needs assistive technology devices and services;
• Whether the child has any special needs related to communication;
• Whether a child of limited English proficiency has language-related needs;
• For a child who is deaf or hard of hearing:  his language, communication or other needs; any opportunities for direct communication with peers and professionals in the child's language or other mode of communication; and any opportunities for direct instruction in the child's language or other mode of communication;
• For a child whose behavior impedes his or her learning or the learning of others, strategies relating to positive behavioral interventions and supports to address that behavior;
• Whether a child who is visually impaired needs instruction in Braille and/or needs to use Braille. 

The Content of the IEP
The IEP for a child with a disability must include statements relating to the following:
 
The child’s present levels of academic achievement and functional performance, including:

• How the child's disability affects the child's involvement and progress in the general education curriculum, and 
• For preschool children, as appropriate, how the disability affects the child's participation in appropriate activities.

Examples of present level of performance statements:

• Inappropriate: David is not progressing adequately in the 2nd grade reading curriculum.
• Appropriate: David is reading 15-20 words per minute with three to eight errors in 2nd grade material. He reads slowly with inaccurate decoding skills.

Measurable annual goals, including academic and functional goals, designed to enable the child to make progress in the general education curriculum and to meet the child's other educational needs. The goals must reflect consideration of the State Goals for Learning and the Illinois Learning Standards.

Examples of annual goals:

• Inappropriate: David will improve his decoding skills and reading speed.
• Appropriate: David will read 80 words per minute with zero to two errors in 2nd grade material.

Short-term objectives and benchmarks for meeting each child's measurable annual IEP goals. 
Note: Federal law no longer requires this statement to be in the IEP, but Illinois has chosen to maintain it. Without short term objectives parents would have virtually no way of measuring whether their children are making sufficient progress in achieving their annual goals and would not be informed participants in their child's education. In addition, teachers would not have a guide as to the intervening steps that should be taken towards achieving these goals and when they should be taken.

The child’s progress toward meeting the annual goals, including:

• How such progress will be measured (i.e. “report cards”) and
• When report cards on the child’s progress will be provided to parents.
   
  Note: There is no longer any requirement under federal law (although the requirement still exists under state law) for these report cards to show the extent to which the progress is sufficient to attain the goals by the end of the year.  Parents should make sure that the report cards show this so that they can assess the significance of any progress shown on the report cards.

Statements relating to State and district-wide assessments, including:

• The child’s ability to participate in such assessments;
• Any appropriate accommodations needed to measure the academic achievement and functional performance of the child on such assessments; and
• If an alternate assessment is recommended, a statement of why the child cannot participate in the regular assessment and why the particular alternate assessment selected is appropriate for the child.

The language(s) or mode(s) of communication in which special education and related services will be provided, if other than or in addition to English.
 
Participation in regular classes, including the extent to which the child will be able to participate or not participate in regular educational programs with non-disabled children.

The special education and related services and supplementary aids and services to be provided to the child. This statement should include a description of program modifications or supports for school personnel that will be provided for the child. It should identify such services and aids that will enable the child to advance appropriately toward attaining the annual goals.  It should also identify services to enable the child to be involved and progress in the general curriculum and to participate in extracurricular and other non-academic activities. 
Note: The school district can provide IEP services either directly, or through arrangements with another public or private agency.

Details regarding each of the services, including the projected start date and the amount, frequency, location, and duration of each of the services.

Transition service needs for a student who has reached the age of 14. This refers to the needs of a child in moving from school to employment. These needs should be addressed under the applicable components of the IEP, with specific reference to the student’s courses of study.

The needed “transition services” for students beginning at age 14½  (and updated annually thereafter). The IEP must include appropriate measurable post-secondary goals based on age-appropriate transition assessments related to training, education, employment, and where appropriate, independent living skills.  The IEP must also include those transition services, including courses of study, needed to help the child reach those goals.  See “Transition Planning for Students Reaching Age 14½,” below.
Note: This means that the IEP that is in effect when the child turns 14½ should provide for transition goals and services. Federal law has changed the age to age 16, but States can start earlier than age 16, if they choose, and Illinois has chosen to maintain the age at 14½.  Parents should request that the student’s IEP, when appropriate, include a statement of inter-agency responsibilities and any needed linkages, since this language is required by state regulations but no longer required under federal law. 

Notice to Parent of IEP Development or Revision
When an IEP is developed or revised, the district must immediately notify the parents. The notice must include:

• A description of the action taken by the district;
• An explanation of why the district took the action;
• A description of any other options that the district considered and the reasons why those options were rejected;
• A description of each evaluation procedure, test, record, or report the district used as a basis for the action;
• A description of any other factors that are relevant to the district's action;
• A statement regarding the Procedural Safeguards, discussed below; and
• Sources for parents to contact to obtain assistance in understanding the procedural safeguards.

A parent may waive the ten-day notice period before placement, allowing the district to place the child in the recommended program as soon as practicable.

The IEP is Not a Contract/ Good Faith Effort Is Required
The IEP is not a contract which guarantees progress at a specific rate. Parents cannot sue anyone for “breach of contract” if the IEP is violated. No district or teacher or other person can be held accountable if a child does not achieve the growth projected in the annual goals and objectives of an IEP.

On the other hand, districts and teachers must make “good faith efforts” to assist the child in achieving those goals and objectives. If they do not, they have violated IDEA.  

Revisions to the IEP 
Either a child’s teacher or parent may request a review of the child’s IEP at any time. Within 10 days after receiving such a request, the district must either:

• Agree and notify the parent regarding the scheduling of an IEP meeting, at least 10 days before the meeting, or
• Refuse and notify the parents in writing of its refusal, including an explanation of the reason no meeting is necessary to ensure the provision of FAPE for the child.

At any meeting to review a child’s IEP, the district must revise the IEP if necessary to address:

• Any lack of expected progress related to the annual goals or the general curriculum, if appropriate;
• The child's anticipated needs;
• Information about the child provided to or by the parent(s); or
• Any other relevant matters.

IEP Amendments without involvement of team. After the annual IEP meeting for a school year, a parent and the school district may agree to amend or modify the IEP without convening an IEP meeting for the purpose of making such changes.

The Timeline for Placement
The district must place the child in a special education placement as soon as possible after the district finds the child eligible. In no case is the school district allowed to place the child later than the beginning of the next school semester.

When special education placement is not possible before the next school semester, the local school district is responsible for providing interim services. The interim services must be as appropriate to the child's needs as possible, and must be provided until the actual placement is made.

If the child was referred for the initial case study evaluation at least sixty (60) school days before the child’s third birthday, the district must decide whether the child is eligible and must be ready to implement any IEP by the third birthday.

Summer School and Extended Service Year (ESY)
IDEA requires a summer program, if that is appropriate under the child's IEP. Even if a school system generally uses a 180 day school year, the district cannot  flatly refuse to consider or provide summer school or ESY. Moreover, school districts cannot charge a fee to provide ESY services.

Although the Department of Education does not specify the standards for States to use in determining whether it is appropriate for disabled children to receive ESY services, it has provided some criteria to be considered.

For example, if an outside expert believes there is a need for an extended school year program for a particular child, the school district must consider the opinion of that expert.

You also can advocate with the school district to provide extended year services for a child where there is adequate evidence that the child would experience significant regression or slow recoupment without some sort of summer program.

“Regression” means that the child will lose progress, or lose performance levels, or forget, or revert to previous behavior. “Recoupment” means getting back to the level the child had achieved before the summer break.

All children "regress” to some extent between school years. It must be determined whether a child's regression would likely be substantial, and whether the child would require a greater than usual amount of time to "recoup,” or to review and/or relearn previously attained objectives.

In addition to significant regression and/or limited recoupment, courts have set forth other ESY criteria, including:

• The degree of the child’s impairment;
• The parent’s ability to provide structure at home;
• The child’s rate of progress;
• The child’s specific behavior and/or physical problems;
• The availability of alternative resources;
• The child’s ability to interact with non-disabled children;
• The specific curricular areas for which the child needs continuing attention;
• The vocational and transition needs of the child; and
• The child’s history of regression. 

In most cases, it would be appropriate to make the determination about ESY services based on more than one factor.  For some children, however, it may be appropriate to make the determination of whether the child is eligible for ESY services based only on one criterion or factor. 

Additional Content for Students Who Require Behavioral Intervention Plan
The IEP of a student who needs a behavioral intervention plan must also do the following:

• Summarize the findings of the functional behavioral assessment;
• Summarize prior interventions implemented;
• Describe any behavioral interventions to be used, including those aimed at developing or strengthening more appropriate behaviors;
• Identify the measurable behavioral changes expected and methods of evaluation;
• Identify a schedule for a review of the intervention’s effectiveness; and
• Identify provisions for communicating with the parents about their child’s behavior and coordinating school-based and home-based interventions.

IEP Development for Special Groups of Children
 

Plans for Children Ages 3-5
For children aged 3-5, instead of an IEP, there may be an “individualized family service plan” (IFSP). This is done at the discretion of the school district.

If a district uses an IFSP, the district must:

• Provide a detailed explanation of the differences between an IFSP and an IEP to the child's parents;
• Obtain informed, written consent from the parents for the use of the IFSP; and 
• Develop the IFSP in accordance with the IEP requirements described above.

Differences Between an IEP and IFSP:  An IFSP is much broader. It involves the family more, and includes professionals from several disciplines in planning for the child. It is based on an in-depth assessment of the child's needs and the needs and concerns of the family. It contains 1) goals for the child; 2) services the child will receive to achieve the goals; and 3) how the family and professionals can help the child reach the goals.  Services available through the IFSP are usually provided in the child's home or "natural environment." This could include a child care setting, preschool or other community setting in which young children without disabilities would typically be found.

Services for Children Under Age 3
Children may be entitled to special education and related services starting at age 3. Early intervention services, although a part of IDEA, are discussed in Chapter 3. Illinois provides those services for children under age 3 who have a developmental delay, who have a high probability of developmental delay or who are at risk of having a developmental delay.  Such services, including therapy, counseling, and education, are intended to assist the child in achieving the highest possible degree of development. 

These services may not be free. These children may be served until kindergarten or the beginning of elementary school at the State’s option. This does require parental consent, but parents should make sure that this consent is knowingly given and should understand that services can be free after the child turns age 3.

IEP Development for Students with Hearing or Vision Impairments
If a child is deaf, hard of hearing, blind or visually impaired, the child might be eligible to receive services from the Illinois School for the Deaf or the Illinois School for the Visually Impaired. If so, the school district must notify the parents or guardian, in writing, of the existence of these schools and the services they provide. The school district also must make a reasonable effort to inform the parents or guardian of the existence of other, local schools that provide similar services and the services that those other schools provide. This notification must include information on school services, school admissions criteria and school contact information. 

School districts can now use IDEA funds to implement early intervening services particularly for students in grades K thru 3 who are not eligible for special education services. These students will  need additional academic and behavioral support, including scientifically based literacy instruction, to succeed in school. This can avoid having them later placed in special education.

School districts must document in the IEP the team’s discussion regarding the existence of private and public schools in the district’s immediate area that provide services similar to the Illinois schools, and the services provided by these schools.   

Transition Planning for Students Reaching Age 14½
When a student with a disability reaches age 14½, the IEP team must identify transition services for the student. 
  
The term “transition services” means a coordinated set of activities that promotes movement from school to “post-school” outcomes. They are intended to prepare students to make the transition from school to the world of adulthood.

Post-school outcomes include college, vocational training, integrated or supported employment, continuing and adult education, adult services, independent living, or community participation.  The IEP should identify one or more of these outcomes as the student’s goals upon leaving school.

Transition services should lead to the achievement of one or more of those goals.  They are based on the student’s needs and take into account his or her preferences and interests.
Examples:  instruction; community experiences; development of employment objectives; acquisition of daily living skills; functional vocational evaluations during high school; and linkages to supports and services after graduation.

In planning transition services, the IEP team must look at the child’s course of study and determine whether or not those courses are leading the student to where he or she needs to be upon graduation.

Service to Students Living in Residential Care Facilities
Children eligible for special education may be living in residential care facilities for reasons other than education. They may be placed there by various public entities such as the Department of Corrections, the Department of Children and Family Services, or the juvenile courts. In most cases, the school district in which such a facility is located is responsible for writing the IEP.

Such “Residential facilities” include:

• Children’s homes or orphanages;
• Foster homes; and
• Prisons, juvenile facilities, and other housing units directly operated by the State of Illinois, on property owned by the State.

Service to Children Enrolled in Private Schools By Their Parents
School districts must provide for special education services for children with disabilities who have been enrolled in private schools by their parents. The districts also must make final decisions with respect to those services.  However, services may be provided on site at a child's private school.

Each district must consult annually with representatives of private schools to decide:

• Which children will receive services;
• What services will be provided;
• How and where the services will be provided; and 
• How the services provided will be evaluated.

The school district must make sure that services provided to children with disabilities enrolled in private schools are comparable in quality to the services provided to such children enrolled in the district.  “Comparable in quality” means provided by similarly qualified personnel.  However, eligible students in private schools may receive a different amount of services than eligible children in public schools.

In addition, the school district must:

• Develop a service plan that identifies the services that the district will provide to the child, meeting the IEP requirements discussed above.  
•  Provide transportation to and from a site other than the private school if necessary for a child to benefit from or participate in the services offered by the district at that site. Example: This includes transportation from the service site to the private school or to the child’s home, depending on the timing of services.

Transfers Between School Districts

A new provision in the law will help parents of transferring students know what they can expect from their new school.  When a child moves to a new school district, the new district must provide services comparable to those described in the IEP that was in effect before the child’s transfer. These services must continue until the previous IEP is adopted. If a school district develops a new IEP and the transfer is within Illinois, the services described in the old IEP stop when the new IEP is developed, adopted and implemented. If a school district develops a new IEP and the transfer is from another State, the services described in the old IEP stop as soon as the new IEP is developed.  

Placement in the Least Restrictive Environment
The IEP will determine an appropriate placement for the child. School districts must make sure that all children are educated in the “least restrictive environment” (LRE).  

Some people imprecisely refer to this requirement as “mainstreaming” or “inclusion.” However, parents should know that, for their child, the regular classroom is not always the least restrictive environment.  To understand the concept of LRE, you must start with the following principles:

• LRE means that children with disabilities must be educated with children who are not disabled as much as possible.
• LRE means that, if appropriate for the child, the child should receive education in the regular classroom at the school the child would attend if he or she had no disability, either with or without supplementary aids and services.
• LRE means that if satisfactory education in regular classes cannot be achieved with the use of supplementary aids and services, then special classes, separate schooling, or other removal of children with disabilities from the regular educational environment may be permitted.

Pre-school children. The “least restrictive environment” requirement applies to all preschool children who are entitled to special education. School districts must make sure that they meet these requirements for preschool children with disabilities, whether or not they have a “regular” preschool program.

School districts that do not operate preschool programs for children without disabilities are not required to initiate programs just to satisfy the LRE requirements. These districts must use alternative methods including:

• Arranging for preschool children with disabilities to participate, even if its part-time, in preschool programs operated by other school districts;
• Placing children with disabilities in private school programs for preschool children without disabilities, or private school preschool programs that integrate children with and without disabilities; or
• Locating classes for preschool children with disabilities in regular elementary schools.

A District Must Have a Range of Different Kinds of Environments

The requirement to educate in the “least restrictive environment” also means that the special education system must have a range of different kinds of environments. The child must be placed in the least restrictive of all these environments, that is appropriate for the child’s needs.

The least possible restrictive placement is the regular classroom, without any supportive services. The most restrictive is a residential placement, where the child is educated in the facility where the child lives. In between, special education programs must have a range of different kinds of environments.  

A child should be placed in one or another of these environments, based on the nature and degree of the intervention required. As the disability becomes more severe, the content of the curriculum and educational methods might change a lot.

The range of program options must include at least those designated below:
 

Regular Classes/Supported Placement
The child receives a basic educational experience in regular classes, modified or supported through:

• Additional or specialized education from the teacher;
• Consultation with the teacher by providers of special education and related services;
• Special equipment and materials, or accommodations;
• Changing the instructional program. Example: This may involve modification of expectations or grading.  It might mean putting children of different ages together.
• Changing the curricular content or educational methodology;  
• Intensive support or related services provided in the regular classroom. Example: A student may need a one-on-one aide, who sits with the student in his class, to provide individual support or assistance. 

Itinerant and Resource Services  
The child receives basic educational experiences through regular classes. These experiences are expanded by “itinerant” or “resource” services.

In an “itinerant” service, a school district contracts with an outside entity for specific services.
Example: A school district may use certified vision and hearing teachers employed by another agency for students with visual or hearing impairments.

Resource programs focus help for the child where he or she needs it most, such as reading or math. Resource services can be provided to a student individually or in a group. In a group, the student is integrated with other students who have disabilities or with non-disabled students.

Special Classes 
The child receives specially designed instruction through an instructional program in a special class. The special class can be in the regular public school, and can be mostly “self contained.” That means most or all of the students in the class have one or more disabilities. The special class might also be in a special school for children with disabilities.

Children in a special class should be included in those parts of regular classes that are appropriate.  

Special Schools
The child receives specially designed instruction in a special school. The child is included in those parts of regular classes that are appropriate.

Home and Hospital Program  
The child receives instructional or resource programs or related services in his or her home or in the hospital.

The home and hospital program will be provided to certain children with a medical condition. The program applies if:

• A doctor gives an opinion that the student will be absent from school for more than two consecutive weeks; and
• The IEP Team determines that such a program is medically necessary. 

The amount of instructional time will depend on each child's educational needs, as well as the child’s physical and mental health. The amount of time cannot be less than five hours per week unless the physician has certified in writing that the student should not receive that many hours.

State Operated or Private Program       
A child’s disabilities may be so profound or complex that no special education program in public school can adequately meet his or her needs. This child may be referred to either a State operated or a private facility that specializes in meeting those needs. In this case, use of a State-operated program should be given first consideration.

However, the district must refer the child to the agency or facility which is most appropriate for that child. This decision must be based on recent diagnostic assessments and other pertinent evidence, such as how close the agency is to the child's home or whether there is a condition that presents a danger to the physical well-being of the student or to other students. 

The local public school district is  responsible for all of the following:

• Making sure the child receives special education and related services in a state-operated or private program at no cost to the parents;
• Locating an appropriate state operated or private program which meets state standards;
• Advancing the referral to that program;
• Making sure that the educational benefits are comparable to those received by students in public schools;
• Providing transportation for the children in this program;
• Following the progress of those children placed in a state operated or private program;
• Communicating at least annually with private or state facility personnel to evaluate the child's progress and, as appropriate, facilitate the child's return to the public school program.

Factors That Schools Must Consider For the Least Restrictive Placement
In general, a child is to be educated in the school which he or she would attend if the child did not have a disability, unless a more restrictive placement is necessary.  
 
In selecting the least restrictive environment (LRE), the school must decide whether satisfactory education in the regular classroom can be achieved, with the use of supplemental aids and services. If so, the child should be placed in the regular classroom with whatever additional aids or services are necessary.  

A school may not have to provide particular aids or services if they are too expensive, and may consider less expensive alternative aids or services that are appropriate.  Also, the school can consider the effect of the presence of the child on the teacher and on other students in the regular classroom.

Children who can make educational progress while placed in the regular classroom should be mainstreamed in that classroom, if not for the entire day, then for part of the day.

The desire to mainstream a child must be considered, but so must IDEA's mandate for educational improvement.
Example: It may be appropriate for a school to place a child who has a moderate to severe hearing loss and mild to moderate speech/ language delay in a segregated program for the hearing impaired. There is a clear preference for placement in the public schools rather than in a segregated facility.  
Examples:  
(1) A local public school has a program for persons with moderate cognitive  disabilities. It is appropriate to place a child there rather than in a totally segregated facility, because the local school would meet the child’s needs and  not have a harmful effect.
(2) The public school has a special program for students with multiple disabilities, but a residential program at a private school is superior. It is appropriate to place a student at the public school, as long as it enables the child to receive an appropriate education.  

Placement of a child at a private school, rather than a public placement, is appropriate where the child has made little or no progress at the public program, and the child made good progress at the private program.

If the educational benefits which can be provided through residential care are essential for the child to make any
educational progress at all, then residential care is required under IDEA.

Required Level of Benefit to Child and Progress by Child
School districts have to provide an appropriate education. This does not mean the best education. Schools are not required to maximize the child’s potential.

On the other hand, IDEA demands more than minimal or trivial progress. The amount of appropriate advancement varies depending on the individual student. All the schools must do is to provide instruction that permits the child to benefit educationally from the instruction. An appropriate education is one which allows the child to make educational progress.

If the child is being educated in the regular classrooms of the public education system, the instruction should be planned to help the child to achieve passing marks and advance from grade to grade.

Grouping Children with Disabilities

Grouping By Age
The age range of students within a special education grouping cannot be more than four years at the elementary level and six years at the secondary level. Early childhood classes and services must serve only children from three through five years of age.  Districts must deliver special education classes and services in age-appropriate settings.

Grouping with Students With Different Disabilities
Schools sometimes design their instructional programs in such a way that they group together students with different kinds of disabilities. This is legal only under the following circumstances:

• The students are grouped in relation to a common educational need, or
• The program allows each student with a disability to receive specially designed instruction that meets the needs of each child, and
• The teacher is qualified to plan and provide an appropriate educational program for each student in the group.

Other Factors Considered When Grouping Children  
When a school district forms special education programs, there are a number of factors that they must consider when grouping together children with disabilities.

These factors include: 

• The nature and severity of the disability and the degree of intervention necessary. 
• Whether the student needs “instructional services,” meaning when the student receives special education instruction for 50 percent of the school day or more.
• Whether the student needs “resource services,”  meaning when the student  receives special education instruction for less than 50 percent of the school day.

Limits on Class Size  
The Illinois standards place limits on the size of the class depending on the nature of the special education program.

• Early childhood instructional programs. These programs have a maximum ratio of one (1) qualified teacher to five (5) students in attendance at any given time.
• Programs which primarily serve children with profound or multiple disabilities. Class size is limited to five (5) students.
• Programs which primarily serve children with severe visual, auditory, physical, speech or language impairments, autism, traumatic brain injury or emotional disturbance: Class size is limited to eight (8) students.
• Programs which primarily serve children with learning disabilities; or programs which serve children with different disabilities: Class size is limited to ten (10) students.
• Programs which primarily serve children with moderate visual or auditory impairment.  Class size is limited to twelve (12) students.
• Programs which primarily serve children with mild/moderate mental impairment. Class size is limited to twelve (12) students at the primary level and fifteen (15) students at the intermediate, junior high, and secondary levels.
• Resource programs. Enrollment is limited to the number of students who can effectively receive assistance, ordinarily not to exceed a total of twenty (20). The teacher must participate in deciding the appropriate enrollment.
• Speech-Language Pathologists. The number of children served by a speech-language pathologist must be based on the speech-language needs of each child. The caseload of a speech-language pathologist cannot exceed 60 students.

The school district may not increase the enrollment in a special education class when the program is provided with a non-certified assistant.

Reviewing Special Education Eligibility and Needs

Annual and Tri-Annual Re-evaluations
The school district must make sure that it conducts a reevaluation for each child with a disability if:

• The district determines that the educational or related service needs of the child (including improved academic achievement or performance) warrant a reevaluation; or
• The child’s parents or teacher requests a reevaluation.

However, a reevaluation cannot take place more frequently than once per year. This means that parents have the right to request a re-evaluation each year if the district has not already conducted one that year.

In addition, the district must conduct a reevaluation of the child at least every 3 years, unless the parent and the district agree that a reevaluation is unnecessary. This is often referred to as the “triennial” re-evaluation.

The purpose of a reevaluation is to determine:

• If the child continues to be a child with a disability, and therefore, still eligible for special education;
• Whether the child continues to have educational needs; and
• The present levels of academic achievement and related developmental needs of the child.

Reevaluations, including testing materials, are subject to the same processes and evaluation procedures as are required for the initial evaluation.  A new IEP is required upon the completion of a reevaluation. 

Absent a request from the parents, a district is not required to conduct a re-evaluation if the IEP Team makes a decision that no additional data are needed to determine whether the child continues to be a child with a disability or to determine the child's educational needs. In that case, the school district must notify the child’s parents of:

• That decision and the reasons for the decision, and
• The right of parents to disagree and request a re-evaluation. 

After the IEP is written, parents have the  right, on an ongoing basis, to reasonably comment on and give input into their child's educational program and to ask for an IEP meeting to review or revise the IEP. 

Termination of Special Education Services
Either the school district or the parents can seek termination of a special education placement. It may be terminated only after an IEP Team meeting has been held and a reevaluation completed, as discussed above. The parents have a reasonable opportunity to attend and participate at this meeting.

The team must conduct a complete review of the child's educational status at this meeting. Termination can occur only if the team determines at the meeting that special education is no longer required, and that termination is in the child’s best interests, or that the child was inappropriately placed.

Exception: A reevaluation is not required before the termination of a child’s eligibility if the termination is:

• Due to graduation with a regular high school diploma; or
• Because the child is over 21 years old. 

When the termination is for either of these reasons, the district must give the child a summary of his or her academic achievement and functional performance. This must include recommendations on how to assist the child in meeting post-secondary goals.

When the child's special education placement is terminated, the district must develop and implement a specific plan of transition. The plan must include any provision of necessary related services and periodic follow-up.

Excluding or Disciplining a Child with a Disability

No Child with a Disability Can Be Excluded or Discriminated Against
The school district must make sure that children who require special education services enjoy rights and privileges equal to those of all other children.

The local school district cannot legally claim that it is unable to provide an educational program for any child with a disability. Every child with a disability is entitled to special education, no matter how severe the disability or how little achievement the child might attain.  
Examples:  A child is eligible for special education even though the child is quadriplegic, or has  profound mental retardation, or severe spasticity, or cerebral palsy, or brain damage, or cortical blindness. 

No child with a disability may be permanently excluded from the public schools. A child who has been determined eligible for special education cannot be expelled for behavior or for a condition which results from any of the disabilities discussed above. However, if the misconduct was not related to a disability, the school can expel the student.

Access to All Educational Programs Provided By the School District
Children with disabilities must have access to all educational programs provided by the local school district. The district must make sure that its children with disabilities have available to them the same variety of educational programs and services that are available to children without disabilities. 
Examples: Art, music, industrial arts, consumer and homemaking education, and vocational education.  

The Right to Special Education For Children With Disabilities Who Have Been Suspended or Expelled 
Every child with a disability has the right to a “free, appropriate public education,” including children with disabilities who have been suspended for more than 10 days or expelled from school.  

This means that a school must continue to provide special education to a child who has been suspended or expelled during the period of removal.  However, in the case of suspension that is 10 school days or less, a school does not have to provide special education during the removal period, if education services would not be provided to a child without disabilities who has been similarly removed.
Example: If a school would suspend a non-disabled child who started a fight without any educational services for 5 days, then, for similar conduct, the school can suspend a child with disabilities for 5 days and not provide any special education during that period.
 
If the suspension or expulsion is for more than 10 school days, it is considered a “change of placement.” In that event, the school must continue to provide special education and related services during the period of removal. 

These services must be sufficient to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child’s IEP. The IEP Team must decide which services are necessary to meet this standard. 
Note: During the expulsion period, the school must continue to provide any needed special education and related services for a child with a disability, even if the school district has determined that the conduct causing the expulsion is not a manifestation of the disability.   
 
Separate Suspensions That Constitute a “Pattern”
Schools may repeatedly suspend an eligible child, each time for 10 consecutive days or less. Each of these suspensions may come in response to separate incidents of misconduct. Such removals are not considered a change of placement and do not require special education services during the period of removal. However, this is true only if such repeated removals do not constitute a “pattern.” 

A pattern can be found to exist in situations where the student has been removed from school for more than 10  days when adding up all the removals. Whether or not there is a “pattern” depends on consideration of several 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. If a pattern is found to exist, these removals are considered to be a “change in placement” and special education services are required during the period of removal. 

Moreover, if a “pattern” is found to exist, a student cannot be excluded or suspended from school unless the school district has properly found that the student’s behavior causing the expulsion is not a manifestation of his disability (see below).

Behavioral Plans When Child Removed for 10 Days or More
When a district first removes a child for more than 10 school days in a school year or initiates a removal that will constitute a “change in placement,” the district must convene an IEP meeting no later than 10 business days after the date of such removal. The purpose of the meeting is to develop a plan for a functional behavioral assessment for the child. As soon as possible thereafter, the IEP Team must develop a behavioral intervention plan for the child in light of that assessment. If a plan is already in place, then the district must convene an IEP meeting to revise the existing plan. 
Disciplining a Child with a Disability      
If a child with a disability violates school rules, the school can remove that child from the child’s current placement for 10 school days or less, to the same extent that the school would remove a child without disabilities. Such removals are for students “who violate a code of student conduct.”

If the school is contemplating suspending for more than 10 days or expelling a child with a disability for violating school rules, then the IEP team must hold a special meeting called a “manifestation determination review.” The purpose of a “manifestation determination review” meeting is to determine whether the child’s rule-breaking behavior is related to the child’s disability, or a direct result of the school district’s failure to implement the IEP.

At this meeting, appropriate district personnel, relevant members of the IEP team, and the parents will get together. They will review all relevant information in the student’s file, including the IEP, any teacher observations and any relevant information provided by the parents. This meeting must be held as soon as possible but never later than 10 school days after the school decides that they may want to expel the child.  The child’s parents must be given notice of this meeting. Parents have a right to attend and to bring others to the meeting.
Note: The entire IEP team is no longer required to be present for the manifestation review – now, only “relevant members.” 

If a Manifestation is Found 
If the group decides the child’s behavior is a “manifestation” of the disability, then the child cannot be expelled, and cannot be suspended for more than 10 days. The child is returned to the placement from which the child was removed, unless the parent and the district agree otherwise. 

Nevertheless, in certain cases, a school is permitted to remove a child with a disability to an alternative educational setting for not more than 45 school days, regardless of whether or not the conduct is determined to be a manifestation of the child’s disability. The school can so remove a child in cases where a child does any of the following while at school, on school premises, or at a school function: 

• Carries or possesses a weapon;
• Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance; or
• Has inflicted “serious bodily injury” on another person.

“Serious bodily injury” means a bodily injury that involves a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ or faculty.

Moreover, any child placed in an interim alternative educational setting is still entitled to a free, appropriate public education. This requires that the student be provided services to enable him or her to continue to participate in the general education curriculum and to progress toward meeting the goals in the IEP.

If the child’s behavior is determined to have been a manifestation of disability, the district must immediately convene an IEP meeting in order to :

• Remedy any deficiencies identified in the IEP or its implementation so that such deficiencies may be removed as soon as possible; and
• Conduct a “functional behavioral assessment.” The team must then develop and implement a “behavioral intervention plan” for the child. If the child already has a behavioral intervention plan, the IEP team must meet to review the plan and the way it is being implemented. If necessary, the team must modify the plan and its implementation to address the behavior.

If No Manifestation is Found
If the team decides that the behavior is not a manifestation of the disability, then the child with disabilities can be disciplined in the same way a child without disabilities can be disciplined, including expulsion. 
Note: Remember that even if the child is expelled or suspended for more than 10 days, the child is entitled to receive necessary special education and related services during the period of removal.

Case By Case Determinations. School personnel have the authority to consider any unique circumstances on a case-by-case basis when deciding whether or not to expel. This is a good provision for parents to quote when they are having trouble proving that their child’s behavior is a manifestation of the disability. It serves to remind school personnel that common sense should prevail and all circumstances should be considered.

Procedures at the Manifestation Determination Review Meeting
The IEP team must consider all relevant information. This includes evaluation and diagnostic results, including the results or other relevant information supplied by the parents. It also includes observations of the child and the child’s IEP and placement.  

In order for there to be a determination that the conduct was a manifestation of the child’s disability, the school district, the parent, and relevant members of the IEP Team must together determine that either of the following is true:  

• The conduct in question was caused by, or had a direct and substantial relationship to, the child's disability, or
• The conduct in question was the direct result of the local educational agency's failure to implement the IEP.

If the team decides that either of the above standards are met, then the behavior must be considered a manifestation of the disability. On the other hand, if neither standard is met, then the behavior cannot be considered to be a manifestation of disability.

If the child’s parent disagrees with a decision made by the team that the behavior was not a manifestation of the child’s disability, the parent may request a due process hearing. If a hearing is requested, the Illinois State Board of Education and the school district must arrange for an “expedited” hearing.

Discipline of Children with Disabilities Not Yet Determined Eligible for Special Education
If a school district does not know that a child is a child with a disability before taking disciplinary measures against the child, the school can discipline the child the same as it would children without disabilities who engaged in similar behaviors. However, if the school district had actual or deemed knowledge that the child has a disability before taking disciplinary measures, then all the above rules relating to discipline of children with disabilities apply, even if the child has not yet been determined eligible for special education.

The school district is “deemed” to have knowledge that a child is a child with a disability if any of the following happened before the behavior that brought about the disciplinary action occurred:

• The parent of the child expressed concern in writing to supervisory or administrative personnel of the district or to the child’s teacher that the child is in need of special education and related services;
• The parent of the child requested an evaluation of the child; or
• The child’s teacher or other school district personnel expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the Director of Special Education or to other supervisory personnel.

Exception: A school district would not be deemed to have knowledge that a child is a child with a disability if:

• The school district conducted an evaluation and determined that the child was not a child with a disability and provided notice to the child’s parents of that determination; or
• The parent of the child has not allowed an evaluation of the child or has refused special education services. 

If a parent or other person requests an evaluation of a child after disciplinary measures have been started, the school district must expedite the evaluation. If the school district is not deemed to have had knowledge that the child is a child with a disability, the child remains in the educational placement determined by school authorities until the evaluation is completed. This can include suspension or expulsion without educational services.

 

IDEA's Procedural Safeguards

The ISBE and all school districts which receive assistance under Part B of the IDEA must make sure that children with disabilities and their parents or guardians are guaranteed certain “procedural safeguards.” These safeguards are necessary for a free, appropriate public education.

The ISBE must make sure that each school district establishes and implements these safeguards.

The “procedural safeguards” cover such things as:

•   The opportunity to examine educational records;
•   The right to an independent evaluation;
•   Prior notice to parents of certain district actions;
•   The requirement of parental consent for certain district actions.
•   The assignment of a surrogate parent; and
•   The right to a due process hearing and further appeals.

The right to an independent evaluation is discussed above. Other safeguards are discussed directly below. The right to a due process hearing and further appeals is discussed in sub-section III.

The Procedural Safeguards Notice
A notice setting forth the procedural safeguards available to the parents of a child with a disability must be given to the parents at least once per year, but also at the following times:

• When the child is initially referred or a parent requests an evaluation;
• The first time a parent files a due process complaint; and
• When a parent requests one.

The local school district also may place a copy of its procedural safeguards notice on its Internet website.

The procedural safeguards notice must include a full explanation of the procedural safeguards. It must be written in the native language of the parents (unless clearly not feasible to do so) and written in an easily understandable manner.  The safeguards must relate to the following:

• An independent educational evaluation;
• Prior written notice;
• Parental consent;
• Access to educational records;
• The opportunity to present and resolve complaints, including: a) the time period in which to make a complaint; b) the opportunity for the school to resolve the complaint; and c) the availability of mediation;  
• The child's placement during pendency of due process proceedings;
• Procedures for students who are subject to placement in an interim alternative educational setting;
• Requirements for unilateral placement by parents of children in private schools at public expense;
• Due process hearings, including requirements for disclosure of evaluation results and recommendations;
• Civil actions, including the time period in which to file such actions; and
• Attorneys' fees.

The Opportunity to Examine Educational Records
A school district must give a parent or guardian of a child with disabilities an opportunity to inspect, review and copy certain education records. Specifically, parents and guardians can review records that relate to any of the following:

• The identification of a child as a child with a disability;
• The evaluation of a child for special education;
• The educational placement of the child; and    
• The provision of a free, appropriate public education to the child.  

On request, each school district must give parents a list of the types and locations of the district’s education records.  They must permit parents, or their representative, to inspect and review education records relating to their children.

If any education record includes information on more than one child, the parents of those children have the right to inspect and review only the information relating to their child or to be informed of that specific information.

The district must comply with a request to inspect and review records without unnecessary delay. If there is going to be an IEP meeting or a hearing relating to the identification, evaluation, or placement of the child, the district must allow an inspection before the meeting or hearing. In no case can the district delay more than 45 days after the request has been made.

Parents can make reasonable requests for explanations and interpretations of the records. The district must respond to these requests.

Copies of the records. Parents also have the right to request that the district provide copies of the records. The copies are free of charge if failure to provide copies would effectively prevent the parent from exercising the right to inspect and review them. Otherwise, the district can charge a reasonable fee for the copies. The district can never charge a fee to search for or to retrieve information.

Amending the records. The parent can ask the district to amend the information if a parent believes that any information in an educational record is inaccurate or misleading or violates the privacy or other rights of the child. The district must decide whether to amend the records within a reasonable period of time. If the district refuses, it must inform the parent and advise the parent of the parent's right to a hearing.

If, as a result of the hearing, the district decides that the information is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child, the district must amend the information accordingly, and inform the parent in writing. 

If the district decides not to amend the records, the district must inform the parent of the parent's right to place a statement in the records. This statement can comment on the information, or state the parent’s reasons for disagreeing with the decision.

Notice to Parent of Proposed District Actions
Whenever a school district wants to take an action affecting a child’s special education (or refuses an action requested by a parent), the district must send “written notice” to the parents or guardian of a child with a disability.

The types of actions requiring a notice to parents:

• The district wants to identify a child as eligible for special education, or changes an earlier finding of eligibility;
• The district wants to start an evaluation of the child or to change an earlier evaluation;
• The district wants to make a particular educational placement for the child, or change an earlier placement;  
• The district refuses to take any of the above actions requested by a parent or guardian. 

The notice must be sent to the parents or guardian at least 10 days before the proposed action. Where placement decisions are being made, this 10 day period can be waived by the parents if it is desirable that the child be placed as soon as possible. A parent of a child with a disability may elect to receive notices by e-mail, if the district makes such an option available.

Not every change in an educational program requires a notice. The change must be significant enough to constitute a change in educational placement. That occurs where the change affects a child's learning experience in a significant way.

The contents of the notice. Whenever a notice is sent, it must fully inform the parents or guardians of the following:

• A description of the action proposed or refused by the district;
• An explanation of why the district proposes or refuses to take the action, including a description of the factors relevant to the district’s proposal or refusal;
• A description of any options the district considered and the reasons why those options were rejected;
• A description of each evaluation procedure, test, record, report or any other factors which the district used as a basis for the proposal or refusal; and
• A full explanation of all of the procedural safeguards available to the parents under IDEA, per the procedural safeguards notice described above. 

The district must write the notice in language understandable to the general public. They must write the notice in the native language or other mode of communication used by the parent, unless it is clearly not feasible to do so.
 
If the mode of communication of the parent is not a written language, the district must make sure that:

• The notice is translated orally to the parent in his or her native language or other communication mode; and
• The parent understands the content of the notice. 

Parental Consent For Evaluation and Placement of Child
A school district must seek the parent’s consent whenever it proposes to conduct an initial evaluation or reevaluation of the child and before providing special education services.

Consent Required for the Initial Evaluation. A school district proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability must obtain informed consent from the parent of such child before conducting the evaluation. Parental consent for an evaluation cannot be construed as consent for placement or consent for special education or related services.

If the child is a “ward of the state” and not residing with a parent, the district has to make reasonable efforts to obtain informed consent from the parent for an initial evaluation to determine whether the child is a child with a disability. However, the district is not required to obtain informed consent from the parent for that evaluation if:

• Despite reasonable efforts to do so, the district cannot locate the parent;
• The rights of the parents have been terminated under state law; or 
•  The rights of the parent to make educational decisions have been taken away by a judge, and consent for the initial evaluation has been given by an individual appointed by the judge to represent the child.

A “ward of the state” means a child who is under state guardianship, or who the state has placed in foster care, or who is in the custody of a public child welfare agency, such as the Department of Children and Family Services.

If the parent does not provide consent for an initial evaluation or fails to respond to a request to provide the consent: The district may request a due process hearing on that issue. If a district files for due process, there will be an administrative hearing to determine whether it is appropriate to initially evaluate the child. If the hearing officer upholds the district, the district can proceed with the initial evaluation even without parental consent. However, in this situation, the parents do have the right to appeal the hearing officer’s decision in court.

A parent is considered to have given consent only when:

• The parent has been fully informed of all relevant information for which consent is sought, in the parent’s native language or other mode of communication;
• The parent understands and agrees in writing to the matter for which consent is sought, and the consent describes that matter and lists the records (if any) that will be released and to whom; and
• The parent understands that granting  consent is voluntary and may be revoked at any time either orally or in writing.  

Consent Required to Provide Services. A district must also seek to obtain informed consent from the parent of a child with a disability before providing special education and related services to the child.

If the parent refuses to consent to services, or fails to respond to a request to provide such consent, the district cannot seek to override parental failure to consent by filing for due process. Moreover, its failure to do so will not be considered to be a violation of FAPE. In this situation, the district will not be required to convene an IEP meeting or develop an IEP.

Consent Required to Perform Re-evaluations. Each school district must obtain informed parental consent before conducting any re-evaluation of a child with a disability (e.g., annual or tri-annual). However, such informed parental consent need not be obtained if the district can show that it had taken reasonable measures to obtain such consent and the parent has failed to respond. If parents do not consent, the school district can request a due process hearing.

A school district also needs the consent of the parents whenever it wants to medicate a child. However, a school district cannot condition any evaluation or services on the student obtaining any  prescription, e.g. Ritalin. 

Other actions can be taken by the school district without first getting the consent of the parents.
Example: If a school district wants to change a child’s special educational placement, it is not necessary for the school district to get consent.  

Assignment of a Surrogate Parent
Each school district has a duty to make sure that the rights of a child are protected whenever the child’s parents cannot be identified or located, or whenever the child is a ward of the state living in a residential facility. In those situations, the Illinois State Board of Education (ISBE) assigns a "surrogate parent" for the child. The surrogate should represent 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.

The local school district must make all reasonable attempts to contact the parents of the child who has been referred for appointment of a surrogate. If the parent cannot be identified or the parent's whereabouts cannot be discovered, the district must request the appointment of a surrogate parent by the ISBE.

If a ward of the state is living in a residential facility, that facility must request the ISBE to appoint a surrogate parent.  A ward of the state living with a foster parent does not require a surrogate parent. The foster parent represents the child in educational matters.   

In addition, the ISBE will appoint a surrogate for an “unaccompanied homeless youth” as defined by the McKinney-Vento Homeless Assistance Act.

Alternatively, a judge overseeing the child’s care can appoint a surrogate parent.

The ISBE must consider the request for a surrogate from the school district within five (5) calendar days of getting it. If a surrogate parent is required, the ISBE must appoint one to represent the interests of the child. The surrogate must be assigned not more than 30 days after the ISBE decides that the child needs a surrogate.

The ISBE must make sure that a person selected as a surrogate has no interest that conflicts with the interest of the child. The ISBE must make all reasonable attempts to secure a surrogate parent whose racial, linguistic, and cultural background is similar to that of the child. The ISBE must train the surrogate to have the knowledge and skills to adequately represent the child.   

The ISBE must provide written notification to the local school district specifying the name and address of the surrogate parent, the specific responsibilities to be fulfilled, and the length of time for which the appointment is valid.

 

 

II. How to Know If Your Rights Have Been Violated

Your rights have been violated if you are a child between the ages of 3- 21 with disabilities, or a parent or guardian of such a child with disabilities; the child needs special education or related services because of those disabilities; and

• The child has been determined ineligible for special education, but has a specified impairment with certain characteristics that qualifies the child.
• The child is not receiving the appropriate special education program or the appropriate related services, or the services are not being provided by qualified persons.
• The school district excludes a child with a disability from school due to disability or expels the child for behavior or for a condition which results from the child’s disability.
• The child is denied access to the same variety of educational programs and services that are available to children without disabilities, such as art, music, industrial arts.
• The parent is required to pay the costs of special education or related services, or required to pay certain charges in connection with a residential placement, including charges for non-medical care and room and board.
• The child has been placed in a placement which is not the least restrictive environment appropriate to the child. 
• The special education system fails to include a range of educational environments, including supported placements, resource programs, special programs, home and hospital programs, state-operated and private programs, and residential placements.
• The child's special education program does not include appropriate physical education or vocational education.
• The child is denied access to the district’s extracurricular activities, or is not given an equal opportunity to participate in such activities.
• The child is grouped with students who have different kinds of disabilities, without regard to common educational need or providing an individualized program.
• The child is grouped together with other children without regard for certain factors, such as age, size, ability and achievement levels.
• The child is in a special class which exceeds the limits on class size.
• A child has not been properly identified as a child who may have a disability or as a child who requires special education.
•  The school district has inappropriately refused a referral for a case study evaluation, even though problems have warranted such an evaluation, or has failed to send parents a proper notice of their decision not to conduct a case study.
• The district performs an improper case study evaluation, or one which lacks certain necessary components, or which uses improper testing and evaluation materials.  
• The district fails to complete the case study and the multi-disciplinary conference (MDC) in a timely way, or does not include all of the necessary participants.
• The district does not perform proper or timely annual reviews and re-evaluations.
• The district fails to pay for an independent evaluation when they should, or fails to properly consider the results of a privately-paid for independent evaluation.
• The district fails in its responsibility to conduct timely meetings for the purpose of developing, reviewing and revising the child’s individualized education program (IEP).
• The school fails to prepare an IEP for a child in a timely way, does not take steps to make sure that parents participate at the IEP meeting, or otherwise fails to include all of the necessary participants at the IEP meeting. 
• The IEP is not prepared properly or fails to include all the necessary components, or the district does not make a good faith effort to help the child achieve the goals and objectives of the IEP.  
• The district does not make a special education placement for an eligible child in a timely way.
• The district denies summer school or extended year services when necessary to avoid significant regression over the summer.
• The child’s special education services are terminated without an IEP meeting at which the parents have been given a reasonable chance to attend, and at which there has been a complete review of the evaluation materials.
• The parent or guardian or their representative has been denied a meaningful opportunity to inspect and review certain educational records, or to amend them.
• The district fails to send a proper and timely written notice to parents or guardians whenever it wants to take an action affecting a child’s special education.
• The district fails to obtain the consent of the parents or guardian before making the initial placement of child in a special education program.
• The district has failed to request that the ISBE appoint a surrogate parent in situations where they must, or the ISBE has failed in its responsibilities to appoint a qualified surrogate parent in a timely way.

III. How to Protect or Enforce Your Rights

Due Process Proceedings

Opportunity To Present Complaints
You have the right to present complaints about any of the following:

• The identification of your child as having or not having a disability;
• Any evaluation of your child;
• The educational placement of your child. 

You have the right to present any complaint that relates to the provision of a free appropriate public education for your child. You can complain about any aspect of your child’s educational placement, even if the situation does not amount to a change in educational placement.

You can present the complaint either to the local school district or to the Illinois State Board of Education (ISBE), or both.

Your Right to Request a Due Process Hearing
Parents and/or students who wish to challenge the following district actions can request an impartial “due process hearing”:

• An eligibility determination or action involving an evaluation of a child;
• Any decision regarding placement or services;
• A manifestation determination finding that a student’s violation of the school’s code of behavior was not related to his disability or did not result from failure to implement an IEP;
• Any action affecting the child’s right to a free, appropriate public education.
• You have the right to go forward to a due process hearing even if a school district suggests the use of mediation as a first step. A request for an impartial due process hearing may not be denied for any reason. 

School districts can request a due process hearing in the following circumstances:

• When a parent refuses to consent to the initial evaluation or any re-evaluation of the student to determine if the student has a disability and to determine educational needs; and
• If the current placement is substantially likely to result in injury to the child or to others.

Deadline for Making the Request. Parents now have 2 years in which to exercise their due process rights after they knew or should have known about the alleged action that forms the basis of the complaint. Illinois law can require that the request be submitted within a shorter time.

These timelines will not apply if:

• The parent was prevented from requesting the hearing because the school district made specific misrepresentations
• The school district withheld information from the parent that it was required to provide.

Information about the time limits for filing for due process must be included in the procedural safeguards notice. 

How To Make the Request for a Hearing 
When making a request for a hearing, a parent or student must make that request in writing. They should direct the request to the superintendent of the school district in which the student is a resident. The district must then promptly (within 5 days) relay that request to the ISBE, and include a letter giving the details and requesting that the ISBE appoint an impartial hearing officer. The district must provide a copy of that letter to the parent. The ISBE is responsible for conducting the hearing.

Reasons To Request A Due Process Hearing.  A hearing may be requested for any of the following reasons:

• Refusal by parent to sign a consent for a proposed case study evaluation, initial placement, or triennial re-evaluation;
• Failure of the school district to provide a case study evaluation;
• Failure of a school district to consider evaluations completed by qualified professional personnel outside the school district;
• Objection to a proposed special education placement, either an initial placement, a continuation of a previous placement, or a change in the placement.

The request for a hearing must include specific information as set forth in a Due Process Complaint Notice (see below).

The Due Process Complaint Notice
The Illinois State Board of Education (ISBE) or local school districts must establish and maintain procedures that require either party (or their attorney) to provide a notice to the other party. The school districts must keep this notice confidential. The procedures must require that a copy of the notice be sent to the ISBE. The notice must include: 

• The child’s name and address (or available contact information in the case of a homeless child), and the name of the school the child is attending;
• A description of the nature of the problem and the facts relating to such problem; 
• A proposed resolution of the problem; and 
• If known, whether the parents will be represented by legal counsel.

Note: The ISBE has a form titled “Parental Request for an Impartial Due Process Hearing” that you can use to serve as your Due Process Complaint Notice. This form is available from the ISBE or you can obtain it online.

A party cannot have a due process hearing until the party or attorney sends this notice to the other party and to ISBE.

Legal Sufficiency of the Notice. The hearing officer must consider the notice to be legally sufficient unless the party receiving the notice, within 15 days of its receipt, notifies the hearing officer and the other party, in writing, that the notice has not met all of the requirements. Within 5 days of receiving that notification, the hearing officer must make a determination on the face of the notice whether it is legally sufficient, and must then immediately notify the parties in writing of such determination.

Note: Parties may not raise issues at the due process hearing that were not addressed in the due process complaint notice, unless the parties agree.

Amending the Due Process Complaint Notice. A party may amend its due process request only if:

• The other party consents in writing to such amendment and is given the opportunity to resolve the complaint through a “resolution session” (see below); or
• The hearing officer grants permission to amend, as long as such permission is given no later than 5 days before a due process hearing actually occurs.

Writing a Separate Due Process Complaint Notice: If you decide you want to seek due process on an issue separate from a request already filed, you can file a separate request for a due process hearing. In that situation, you do not need to try to amend your already filed Due Process Complaint Notice.

All applicable time-lines for due process hearings will start over again at the time a party files an amended notice. 

Written Response to the Due Process Complaint Notice
When a parent or child makes a due process request, the school district must respond to it in writing. Exception: The district need not respond if it had previously sent a written notice to the parents regarding the same subject matter.  
The district’s response must be made within 10 days of receiving the request for a due process hearing. However, if within 15 days of receiving the due process request the district notifies the hearing officer that it is challenging the legal sufficiency of the parent’s due process complaint notice, the response can be delayed. If the hearing officer is not yet known, the district can send that notice to the ISBE.

The written response must include:

• An explanation why the district proposed or refused to take the action raised in the request for due process;
• A description of other options that the IEP team considered and the reasons why the team rejected those options;
• A description of each evaluation procedure, assessment, record or report the district used as the basis for the proposed or refused action; and
• A description of the factors that are relevant to the proposed or refused action.

The district has the right to both file this response and assert that the parent’s due process request was legally insufficient.

If the school district filed the due process request, the parents must send the district a written response. You must send this response within 10 days of receiving the district’s notice of request for due process hearing. The response must specifically address the issues raised in the request.

Resolution Sessions
Within 15 days of receiving the request for hearing, the district must convene a meeting with the parents and the relevant members of the IEP team. This meeting is called a “resolution session.” The school district’s attorney cannot be present at this meeting unless the parent is accompanied by an attorney. If parents choose to have an attorney present, it will be at their own cost, as attorney’s fees cannot be awarded for the resolution session meetings.
Note: Parents may participate at resolution sessions by telephone conference call or other alternative means, if they so choose.
 
At this meeting, the parents will discuss the facts behind their due process hearing request. The district will have an opportunity to resolve the problem. This meeting will not take place if the parents and the district agree in writing to waive the meeting or agree to use the mediation process, described below. If the parties choose to use mediation instead of a resolution session, or to waive the resolution session completely, the parties must agree in writing to these choices. In that event, the parties are expected to inform the Hearing Officer within 3 business days of the choice, and send him or her a copy of the written agreement.

If the district does not resolve the problem to the satisfaction of the parents within 30 days of the district’s receipt of the request for hearing, the due process hearing may occur. Unless the Hearing Officer extends the timelines at the request of a party, due process hearings must be held and a final decision issued within 45 calendar days following the end of the resolution period. 

If the district is able to resolve the problem to the satisfaction of the parents, the parties must sign a legally binding agreement. If necessary, either the district or the parents can enforce the agreement in any state or federal court.  Either party has the right to void such agreement within 3 business days of signing it. Parents and districts may reach a partial agreement, i.e., on less than all issues.

Appointment of a Hearing Officer
When the ISBE receives a request for a hearing, they must appoint an impartial hearing officer within five days (one day in the case of an expedited hearing). The appointment is made using a rotation system provided for by state law. The ISBE must notify the hearing officer and the parties of his or her appointment.

You are permitted to request a substitution of hearing officer, and one substitution will be allowed as a matter of right.  Your request for a substitute hearing officer must be made in writing to the ISBE within five days after you receive  notification of the hearing officer's appointment.

Qualifications for Hearing Officers
To qualify, the hearing officer must:

• Hold a master’s degree or a juris doctor degree or must hold a bachelor’s degree in combination with at least three years’ experience in special education, disability-related issues, or advocacy.
• Neither be an employee of the ISBE or the school district involved in the education or care of the child, nor a person having a personal or professional interest that conflicts with objectivity in the hearing;
• Have knowledge and understanding of both federal and state special education law, including court interpretations of the law; and
• Have the knowledge and ability to conduct hearings as well as to render and write decisions, in accordance with standard legal practice.

Scheduling the Hearing
Except in the case of an expedited hearing, within five days after getting notice of his or her appointment, the hearing officer must contact the parties to determine a time and place reasonably convenient to them.

The hearing officer must provide the parties at least ten day’s written notice of the dates, times, and locations of the pre hearing conference and the hearing.

If the parties cannot agree to a mutually convenient time and place for convening the hearing and/or pre hearing conference, the hearing officer will make those decisions.

Expedited Hearing
Parents are entitled to an expedited hearing if the parent has sought a hearing to challenge the manifestation determination or any interim alternative educational placement. The school district is entitled to an expedited hearing in cases where the school maintains that it is dangerous for the child to be in the current placement.

In any of these situations, the ISBE or the local school district must arrange for an expedited hearing. If the parent requests the hearing, the district must forward the request to ISBE within one (1) day of receiving the request. The hearing must be conducted within four (4) days after the Hearing Officer has contacted the parties. The hearing must not last for more than two days, and hearing officer must render a decision within two days after the close of the hearing. 

If the issue is the appropriateness of the interim alternative placement, the hearing officer must consider the following:

• Whether the district has demonstrated by “substantial evidence” that maintaining the student in the current (non-alternative) setting is substantially likely to result in injury to the student or others;
• Whether the alternative placement is appropriate;
• Whether the district has made reasonable efforts to minimize the risk of harm in the student’s current placement including the use of supplementary aids and services; and
• Whether the alternative placement will permit full implementation of the IEP and includes services to prevent the undesired behavior from recurring. 

If the hearing officer decides to order a change in the child’s placement to an appropriate interim alternative educational setting, it must be for not more than 45 days.

Delaying the Hearing (Continuances)
Either party may request a delay in convening the hearing or the pre hearing conference. The party requesting a delay must do so in writing to the hearing officer, with a copy sent at the same time to the other party. The requesting party must set forth the reasons for the request. The hearing officer must either grant or deny the request, and so inform the parties and the ISBE in writing. If necessary, the hearing officer will set a new time and date for convening the hearing or the pre hearing conference.

If the parties jointly propose a delay in convening the hearing or pre hearing conference, it shall be delayed as agreed.

If you need a delay in the start of a hearing in order to obtain a completed independent evaluation, you should request such a delay. The hearing officer must delay the hearing until such time as the independent evaluation is completed, the report is available, and the opposing party has been given a reasonable opportunity to review it. 

The parents may ask the hearing officer to consider whether an independent evaluation is needed.  If the hearing officer concludes that one is necessary, the hearing will be delayed and an evaluation will be ordered at the district’s cost.

The Pre-Hearing Conference
Except in the case of expedited hearings, the hearing officer must convene a “pre hearing conference,” with at least 10 days notice to parties. The conference must be scheduled no less than 14 days before the hearing.  The conference will help to do the following:

• Identify the issues, the order of presentation, and any scheduling accommodations that have to be made for the parties or witnesses;
• Determine the relevance of documents or witnesses, if raised by a party or the hearing officer; and
• Reach agreements that particular facts are true (called “stipulations”).

The Hearing Officer cannot convene the Pre-Hearing Conference before the expiration of the 30-days allowed to complete the Resolution Session.
 
You are permitted to participate by tele-conference. It is your responsibility to make sure that any information required at the pre hearing conference is received by the hearing officer and the other party at or before the conference.

At the conclusion of the pre hearing conference, the hearing officer must prepare a report of the conference to be entered into the hearing record.

If the Hearing Officer allows additional issues to be presented at the hearing that were not part of the initial due process request, the parties are allowed to reinitiate the resolution session to try to resolve the new issues. The pre-hearing conference will be re-convened after the new resolution session is completed.

Your Rights Before the Hearing
You have the right to be represented by counsel (at your own expense), or to be represented and assisted by other persons having special knowledge of special education law.

You have the right to inspect the child’s educational records, and a right to an independent evaluation, as discussed above.
  
If either the parent or district requests a hearing, or merely if a parent so requests, the school district must inform a parent of the right to mediation and about any free or low cost legal and other publicly funded advocacy services available in the area.

Unless the hearing is expedited, you have the right to receive copies of any evidence which the school district intends to introduce at the hearing, at least five days before the hearing. Likewise, you must provide the school district with copies of your evidence at least five days before the hearing. You may not be able to introduce such evidence at the hearing if you do not comply with this 5-day requirement.

Both parties have the right to require certain people to attend the hearing. Those people include any school district employee, or any other person who may have information relevant to the needs, abilities, the proposed program, or the status of the student. 

At the request of either party, the hearing officer must issue subpoenas to compel the testimony of witnesses or the production of documents relevant to the case. If any person refuses to comply with a subpoena, you can go to court to force them to comply.

Either party, or any other person participating in the hearing, may request that an interpreter be available during the hearing. This may be because one of the participants is hearing impaired and/or uses a primary language other than English. The school district must pay for any such interpreters.

Your Rights During the Hearing
The hearing officer must conduct the hearing in a fair way. The hearing officer must give you an opportunity to present the evidence, testimony, and arguments you believe are necessary.

You have the right to have a lawyer with you at the hearing, or any other person with special knowledge or training in the problems of children with disabilities.

The hearing will be closed to the public unless the parents specifically request that it be an open hearing. The hearing officer must advise the parents of their right to have the hearing open to the public. If the parents make such a request, the hearing will be open.

In most cases, you have the right to have the child who is the subject of the hearing present at the hearing.

You have the right to present whatever evidence, testimony, and arguments you believe necessary to support and/or clarify the issues in dispute and the relief you are requesting.
 
The parties have the right to confront and cross examine witnesses. Either party can keep out any evidence which was not disclosed to that party at least five (5) calendar days before the hearing. Also, the party requesting the hearing will not be allowed to raise issues at the hearing that were not raised in the Due Process Complaint Notice, unless the other party agrees otherwise. 

The hearing officer must make sure that a verbatim record of the hearing is made, either by tape recording or by a court reporter. The parents may obtain a copy of the verbatim record of the hearing without cost.

The Burden of Proof at Hearings

The Burden of Proof: In order to win any administrative hearing, the party who bears the “burden of proof” in a legal dispute must convince the hearing officer that his or her version of the facts is more likely to be true than the other party’s version. Which party bears this burden is especially important in close cases. If the hearing officer cannot decide which party is right, then the party bearing the burden of proof has failed, and will lose the case.

In the context of a due process hearing, this issue is important. Can the parents win the case only if they show that the school district failed to meet its obligations? If so, it is not up to the school district to show that it complied with the law.  Or, on the other hand, can the school district win the case only if it proves that it did comply with the law?

The federal law known as IDEA does not explicitly state who has the “burden of proof” at due process hearings, and different courts have made conflicting decisions on the issue. In 2005, however, the U.S. Supreme Court in Schaffer v. Weast sought to resolve the issue by deciding that, under the federal law, parents have the “burden of proof” when they bring a due process dispute against a school district.

But the Supreme Court in Schaffer left open the question of whether State laws could still place the burden on the school district. Advocates should be aware that there is a provision in the Illinois statutes governing due process hearings that may still place the burden of proof on the school district, or at least the burden of going forward with certain proof. That law expressly requires the school district to “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.” 105 ILCS 5/14-8.02a(g).  

The Child’s Status During the Proceedings (The “Stay-Put” Rule)
Complaint proceedings include any due process hearings or court proceedings to review the due process hearings.  While any of these proceedings are pending, the child must remain in the then current educational placement of the child. This requirement is sometimes called the “stay put rule.” Of course, the parents and the school district can agree to some other arrangement, if mutually acceptable.

The “then current educational placement” of a child with a disability is the placement required by the child's IEP. If there is no IEP in effect, it is the operative placement under which the child is actually receiving instruction at the time that the dispute arises.
  
Note: If the child is applying for initial admission to a public school, the child will be placed in the regular public school program until all proceedings have been completed as long as the parents consent.  

The purpose of the “stay-put” rule is to give the child's parents the choice of keeping the child in his existing program until their dispute with the school authorities is resolved. It is meant to prevent school officials from excluding the child from school or changing his placement, when the parents object and when review proceedings have not been completed.

The “stay-put rule” does not prevent the school from making minor changes in the student’s educational program that do not constitute a “change in placement.”  
Example: Replacing a teacher aide with another is not a change in placement.

The stay put rule does not stop school officials from using normal procedures for dealing with children who are endangering themselves or others. These can include the use of study carrels, timeouts, detention, or the restriction of privilege. If a student poses an immediate threat to the safety of others, officials may temporarily suspend the student for up to 10 days, and may attempt to obtain a court order for a longer temporary suspension.

Exceptions to the Stay-Put Rule
There are several noted exceptions to the stay-put rule. Where an exception is recognized, the school can change the placement even where complaint proceedings are pending.

Expulsion for conduct unrelated to disability. Generally, an expulsion is a “change in placement” and is prohibited by the stay-put rule while complaint proceedings are pending. However, this is true only if the conduct resulting in the proposed expulsion was related to the child’s disabilities. The "stay put" provision of IDEA does not apply where the student's misbehavior is unrelated to his or her disability. IDEA does not protect special education students from the normal consequences of their misconduct if that misconduct has nothing to do with their disabilities.

Note: A parent can seek due process to challenge a manifestation determination where the school district attempts to expel a child after finding there is no relation between the student’s conduct and the disability. In such a case, the stay-put rule would apply to prevent the expulsion until a hearing officer rules on the manifestation determination issue at a due process hearing. However, stay-put will not prevent placement in an interim alternative educational setting in the circumstances discussed below.

Exception for children who have brought a weapon or drugs to school, or where there is a risk of serious bodily injury. Regardless of whether or not the conduct is determined to be a manifestation of the child’s disability, a school is permitted to remove a child with a disability to an interim alternative educational setting for not more than 45 school days, in cases where a child does any of the following while at school, on school premises, or at a school function:

• Carries or possesses a weapon;
• Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance; or
• Has inflicted “serious bodily injury” on another person.

“Serious bodily injury” means any bodily injury or illness that involves a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ or mental faculty.

Likewise, a hearing officer can permit removal to an interim alternative educational setting if the hearing officer determines that maintaining the current placement of the child is “substantially likely to result in injury to the child or others.”

Note: In making this decision, IDEA no longer requires the hearing officer to consider whether the school district’s proposed change in placement is based on a preponderance of the evidence. Also, IDEA no longer requires the hearing officer to consider whether the school has made reasonable efforts to minimize the risk of harm, including the use of supplementary aids and services. These changes, to the degree they have the effect of punishing the child even if proper supports could have prevented the problem, arguably violate Section 504 of the Rehabilitation Act.

The interim alternative educational setting should be a joint decision, if possible. It should be reached by a representative of the school district who is qualified to provide or supervise special education, by the teacher, by the parents or guardian of the child, and, whenever appropriate, by the child.

If a parent requests a due process hearing to challenge the interim alternative educational setting or the manifestation determination, the child shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the 45-day period, whichever occurs first, unless the parent and the district agree otherwise. The same shall apply if a parent appeals the decision of a hearing officer. However, parents do have a right to an expedited hearing in this situation.

If school personnel consider that it is too dangerous for the child to be returned to the current placement, the district may request an expedited due process hearing to extend the length of time the student may remain in the interim alternative educational setting.

Students not previously diagnosed as having a disability. Before a hearing officer issues a "stay put" order for a student who has not yet been identified as disabled, the parent must show must reasonably show that school officials knew, or should have known, of the student's genuine disability.

The Decision of the Hearing Officer
After a due process hearing, you have the right to receive a written decision from the hearing officer. This decision must be sent to you within 10 days after the conclusion of the hearing (2 days for an expedited hearing). The decision must set out the issues in dispute, and make findings of fact and conclusions of law.

The decision must be made on substantive grounds (i.e, must be based on a rational basis consistent with the facts and the law). It also must be based on a determination of whether the child received a free, appropriate public education (FAPE).

In matters involving a procedural violation, the hearing officer may find that a child did not receive FAPE only if the procedural inadequacies:

• Impeded the child’s right to FAPE;
• Significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of FAPE to the child; or
• Caused a deprivation of educational benefits.

In any event, nothing stops a hearing officer from ordering a school district to comply with any of the procedural safeguards. 
 
The hearing officer must decide whether the student has needs which require special education services. If so, he or she must decide whether the services and placement that are being proposed or provided by the district are appropriate, given the student's identified needs. The hearing officer must order the parties to take all steps necessary to make sure that the eligible student receives the appropriate placement and services. The hearing officer must specify what needs to be done to make sure the order is complied with in a timely way.

Remedies that a Hearing Officer Can Order. The hearing officer cannot order the school district to pay your attorney’s fees. Otherwise, if appropriate, the hearing officer can order any of the relief available from a Court. See “Relief Available from a Court,” below.

Whenever the parent of a child with a disability disagrees with any decision regarding placement or the manifestation determination, or whenever a school district believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others, the hearing officer may order a change of placement as follows:

• Return the child to the placement from which the child was removed, or
• Order a change in placement of the child to an appropriate interim alternative educational setting for not more than 45 school days, if the hearing officer determines that maintaining the current placement is substantially likely to result in injury to the child or to others. 

The hearing officer's decision must be sent by certified mail to the parties. The decision must be translated into the native language of the parents if their primary language is other than English.

The written decision is binding on the parties unless a party aggrieved by the decision starts a lawsuit to have the decision reviewed. If the decision is not appealed, it can be enforced by the ISBE.

Requests for Clarification. After the hearing officer makes a decision, you have 45 days to request a clarification from the hearing officer, if a clarification is needed. You should submit this request in writing.

Monitoring of Hearing Officer Decision by the ISBE
The Illinois State Board of Education must review the decision and monitor the parties’ compliance with the terms of the decision. If the district fails to comply with the decision in the time specified by the hearing officer, the ISBE must notify the parties in writing by certified mail that it finds the district to be in noncompliance with the decision. In that notice, the ISBE must explain that the following could happen unless the district remedies the noncompliance within a specified amount of time:

• Loss of recognition status of the district's programs by the State;
• Withholding of State or federal funds which the district would otherwise be eligible to receive; or
• Other enforcement action.

Collection of All Decisions
The ISBE must collect all past decisions of hearing officers, and make them available to the following parties:

• The hearing officer in your case;
• The Illinois State Advisory Council on Education of Children with Disabilities; and
• Other interested parties upon request. 

The set of collected decisions will be indexed by subject matter. They must have deleted all personally identifiable information. You can use these decisions to support your case if you find any that seem similar to your case and provide a good remedy.

Taking the Case to Court

 

Lawsuits in Court
If you are not satisfied by the findings and decision made by the hearing officer at the due process hearing, you have the right to bring a civil lawsuit under IDEA. You can sue the school district in any state court, or in a Federal District Court.
  
Generally, you cannot file your lawsuit under IDEA until all administrative proceedings have been completed. In Illinois, that means after you have received a decision from the due process hearing officer.

Deadline for filing suit. Under federal law, you must file your lawsuit within 90 days from the date of the due process hearing officer’s decision, unless state law requires a different amount of time. Illinois presently allows 120 days from the date of the decision to file a lawsuit. You may file your lawsuit within such time as state law allows.
Note: This provision is subject to change, and the reader should take care to note any changes in the Illinois law with regard to the amount of time to file a lawsuit.

The court will determine whether the school district has complied with administrative procedures of IDEA. The court also can decide whether the child's IEP is reasonably calculated to provide educational benefits to child.

The court must consider the record made at the due process hearing, but can hear new evidence. The court must give due weight to the findings of the hearing officer, but must independently decide whether the requirements of IDEA have been met. However, the court is not allowed to substitute its own notions of sound educational policy for those of school authorities.

Relief Available from A Court
IDEA gives the court broad discretion in fashioning a remedy based on the needs of the child and to ensure a free, appropriate public education.

Monetary damages are not available under IDEA. There is no private right to recover damages for educational malpractice, or pain and suffering, or physical or emotional harm, or the like.

Reimbursement for private school placement. In some cases, a court has the power to order school officials to reimburse parents for their expenditures on private special education for a child with a disability. This includes private school tuition and related expenses. Such an order is appropriate if the court decides that the private placement was the more appropriate placement than the one proposed by the school district.

Where the local school board offers the child an appropriate placement, the parents are not entitled to reimbursement of the cost of private school. Parents may bear the financial risk of paying for a private tuition if they cannot show that the IEP calling for the placement of the child in a public school was inappropriate.

Orders relating to IEPs or placement. A court can direct school officials to develop and implement at public expense an IEP placing the child in a private school, where the court concludes that placement in a public school is inappropriate. 

A trial court may require a residential placement, or some other placement, or may direct the schools to prepare an IEP in a particular way.

Orders relating to compensatory education services. This refers to extra educational services to make up for any earlier deprivation of a free, appropriate public education. Compensatory education requires that a school district belatedly provide the services it should have provided earlier. 
Example: A school district may have to provide extra services if it wrongly excluded a child from school or denied a child appropriate educational services for an extended period of time.

A court can order a school district to provide compensatory education services when it is established that a student has not received appropriate services during any time in which the student was entitled to them. This includes the authority to award compensatory education past age 21.

Attorney’s fees. If you are a child’s parent or guardian and you win the case, the court may order the school district to pay your reasonable attorneys' fees. 
Note: Only a court has this power. Due Process hearing officers do not have the power to order a party to pay the other party’s attorney’s fees.

On the other hand, if the court determines that your complaint was presented for any “improper purpose,” then the court, in its discretion, may order you or your attorney to pay the reasonable attorney’s fees incurred by the school district (or ISBE).  An improper purpose is one in which you present the complaint merely to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

Likewise, the court can order your attorney (but not you) to pay the reasonable attorney’s fees incurred by the school district (or by ISBE) if the court determines that your request for a due process hearing or any subsequent court action was “frivolous, unreasonable or without foundation.” Your attorney may also be subject to pay the school’s attorney’s fees if your attorney continued to litigate after the case clearly became frivolous, unreasonable or without foundation.

Other Means of Resolving Conflicts with the School District

You may be able to come up with the right services and placement for your child without having to request a due process hearing or going to court. There are other conflict resolution procedures available. These include:

• Complaints to the State Board of Education; and
• Mediation.
   

Complaints to the State Board of Education
If you believe that the local school district has not complied with the law, you can file a complaint with the Illinois State Board of Education (ISBE). A letter of complaint can be submitted to the following address:

Illinois State Board of Education
Special Education Compliance Division
100 North First Street
Springfield, IL 62777-0001

When preparing the letter, you should include the following information:

• A statement detailing the alleged violations and the facts on which your statement is based;
• Student information, including the names of the student and parents or guardian, your mailing address, your daytime phone number, and the name of the student’s resident school district.

The ISBE will send you and the local school district written notice within 10 days of receipt of the complaint. The notice will explain the nature of the complaint, and any contact that has been made with the school district about it. 

If the ISBE is unable to resolve the issue within 10 days of receiving the complaint, a full investigation will be conducted to gather more information. If necessary, the ISBE will make an on-site visit. This investigation should be completed within 60 calendar days unless more time is necessary. Following the investigation, the ISBE will give you and the school
district another notice. This notice will set forth the allegations of the complaint and explain:

• The ISBE findings;
• The specific action to be taken to reach compliance with the law, if any; and
• The time by which such action must be taken.

If the local school district or the special education cooperative does not verify compliance with the ISBE, additional enforcement proceedings may begin. If you disagree with the findings of this investigation, you can request that the final decision be reviewed by the United States Department of Education. You may write a letter to them at:

U.S. Department of Education
Federal Office Building 6,
Room 4181
400 Maryland Ave., S.W.
Washington, D.C. 20202

If you want to learn more about the complaint process, you may contact the ISBE Division of Program Compliance at 217/782-5589.

The Mediation Process
Under federal law, the ISBE and local school districts must establish and implement procedures that allow parties to resolve disputes through a mediation process, at any time before the due process hearing. You may want to make a request to the ISBE for “mediation” if you cannot work out your concerns about the appropriateness of your child’s special education program and related services. You may choose to also file for a due process hearing, but you do not need to do so in order to request mediation. 

Mediation is a voluntary process in which parents and school district personnel meet to resolve disputes with the help of a trained mediator. In mediation, both sides are brought together to discuss and consider alternative solutions to the issue, your child’s capabilities, and the concerns or problems expressed by the other party.

Mediation is designed to resolve issues without going to the more expensive and more formal due process hearing. On the other hand, even if you request mediation, you have the additional right to request a  due process hearing at any time.

The State provides mediation service at no cost to you or to the local school district. However, it can occur only if both sides agree to participate. If the school district participates, the mediation must include persons who have the authority to act for the school district.  

Mediation is conducted by an impartial, trained mediator, provided by the ISBE. The mediator will establish the issues, determine points of agreement, and offer suggestions for resolution of the disagreement. Each session in the mediation process must be scheduled in a timely manner and held in a location that is convenient to all parties.

The mediator cannot force you or the school district to take an action. The mediator does not have the authority to require or compel any particular outcome. If no agreement comes out of mediation, then the proceeding comes to a close without any result.

If a resolution is reached through the mediation process, the parent and an authorized representative of the district must sign a legally binding agreement that:

• Sets forth the resolution, and
• States that all discussions that occurred during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil court case.

This agreement is enforceable in any state or federal court. Parents can get the court to order the district to pay their  attorney’s fees if the court enforces the agreement. 

Mediation is conducted in complete confidentiality and will not be used for any other purpose. The only record kept of the mediation will be a listing of participants; the dates, times and locations of the sessions; and a summary of the outcome. Discussions taking place at the sessions will not be transcribed and cannot be used by either party in a due process hearing. 

“Disinterested Party” Meetings. If parents or schools do not choose to use the mediation process, the local school district can establish procedures to offer both parents and schools an opportunity to meet with a disinterested party.  That party will be under contract with a parent training and information center, a community parent resource center that is funded with a federal grant under IDEA.

If you want to request a mediation or learn more about the mediation process, you may contact the mediation coordinator at the ISBE Special Education Compliance Division at 217/782-5589.

 

IV. Where To Go For More Information

Statutes and Regulations
Part B of the federal Individuals with Disabilities Education Act (IDEA) can be found at 20 USCA §§ 1411-1420.

The IDEA federal regulations are at 34 CFR Parts 300, 301.

The Illinois School Code provisions relating to children with disabilities can be found at 105 ILCS 5/14.

The Illinois regulations concerning special education and related services are at 23 Ill. Admin. Code Part 226.

Illinois State Board of Education
The ISBE website is located at: http://www.isbe.state.il.us/. There you will find many resources for parents, including guidelines and policies, legislation and rules, forms to request a due process hearing, IEP forms, notice and consent forms, a parent handbook, and informative memoranda on various subjects relating to special education.

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