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91_SB1447
LRB9107779NTsb
1 AN ACT to amend the School Code by changing Section
2 14-8.02.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The School Code is amended by changing
6 Section 14-8.02 as follows:
7 (105 ILCS 5/14-8.02) (from Ch. 122, par. 14-8.02)
8 Sec. 14-8.02. Identification, Evaluation and Placement
9 of Children.
10 (a) The State Board of Education shall make rules under
11 which local school boards shall determine the eligibility of
12 children to receive special education. Such rules shall
13 ensure that a free appropriate public education be available
14 to all children with disabilities as defined in Section
15 14-1.02. The State Board of Education shall require local
16 school districts to administer non-discriminatory procedures
17 or tests to limited English proficiency students coming from
18 homes in which a language other than English is used to
19 determine their eligibility to receive special education.
20 The placement of low English proficiency students in special
21 education programs and facilities shall be made in accordance
22 with the test results reflecting the student's linguistic,
23 cultural and special education needs. For purposes of
24 determining the eligibility of children the State Board of
25 Education shall include in the rules definitions of "case
26 study", "staff conference", "individualized educational
27 program", and "qualified specialist" appropriate to each
28 category of children with disabilities as defined in this
29 Article. For purposes of determining the eligibility of
30 children from homes in which a language other than English is
31 used, the State Board of Education, no later than September
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1 1, 1993, shall include in the rules definitions for
2 "qualified bilingual specialists" and "linguistically and
3 culturally appropriate individualized educational programs".
4 (b) No child shall be eligible for special education
5 facilities except with a carefully completed case study fully
6 reviewed by professional personnel in a multidisciplinary
7 staff conference and only upon the recommendation of
8 qualified specialists or a qualified bilingual specialist, if
9 available. At the conclusion of the multidisciplinary staff
10 conference, the parent or guardian of the child shall be
11 given a copy of the multidisciplinary conference summary
12 report and recommendations, which includes options
13 considered, and be informed of their right to obtain an
14 independent educational evaluation if they disagree with the
15 evaluation findings conducted or obtained by the school
16 district. If the school district's evaluation is shown to be
17 inappropriate, the school district shall reimburse the parent
18 for the cost of the independent evaluation. The State Board
19 of Education shall, with advice from the State Advisory
20 Council on Education of Children with Disabilities on the
21 inclusion of specific independent educational evaluators,
22 prepare a list of suggested independent educational
23 evaluators. The State Board of Education shall include on the
24 list clinical psychologists licensed pursuant to the Clinical
25 Psychologist Licensing Act. Such psychologists shall not be
26 paid fees in excess of the amount that would be received by a
27 school psychologist for performing the same services. The
28 State Board of Education shall supply school districts with
29 such list and make the list available to parents at their
30 request. School districts shall make the list available to
31 parents at the time they are informed of their right to
32 obtain an independent educational evaluation. However, the
33 school district may initiate an impartial due process hearing
34 under this Section within 5 days of any written parent or
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1 guardian request for an independent educational evaluation to
2 show that its evaluation is appropriate. If the final
3 decision is that the evaluation is appropriate, the parent
4 still has a right to an independent educational evaluation,
5 but not at public expense. An independent educational
6 evaluation at public expense must be completed within 30 days
7 of a parent or guardian written request unless the school
8 district initiates an impartial due process hearing or the
9 parent or guardian or school district offers reasonable
10 grounds to show that such 30 day time period should be
11 extended. If the due process hearing decision indicates that
12 the parent or guardian is entitled to an independent
13 educational evaluation, it must be completed within 30 days
14 of the decision unless the parent or guardian or the school
15 district offers reasonable grounds to show that such 30 day
16 period should be extended. If a parent disagrees with the
17 summary report or recommendations of the multidisciplinary
18 conference or the findings of any educational evaluation
19 which results therefrom, the school district shall not
20 proceed with a placement based upon such evaluation and the
21 child shall remain in his or her regular classroom setting.
22 No child shall be eligible for admission to a special class
23 for the educable mentally disabled or for the trainable
24 mentally disabled except with a psychological evaluation and
25 recommendation by a school psychologist. Consent shall be
26 obtained from the parent or guardian of a child before any
27 evaluation is conducted. If consent is not given by the
28 parent or guardian or if the parent or guardian disagrees
29 with the findings of the evaluation, then the school district
30 may initiate an impartial due process hearing under this
31 Section. The school district may evaluate the child if that
32 is the decision resulting from the impartial due process
33 hearing and the decision is not appealed or if the decision
34 is affirmed on appeal. The determination of eligibility shall
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1 be made within 60 school days from the date of referral by
2 school authorities for evaluation by the district or date of
3 application for admittance by the parent or guardian of the
4 child. In those instances when students are referred for
5 evaluation with fewer than 60 pupil attendance days left in
6 the school year, the eligibility determination shall be made
7 prior to the first day of the following school year. After a
8 child has been determined to be eligible for a special
9 education class, such child must be placed in the appropriate
10 program pursuant to the individualized educational program by
11 or no later than the beginning of the next school semester.
12 The appropriate program pursuant to the individualized
13 educational program of students whose native tongue is a
14 language other than English shall reflect the special
15 education, cultural and linguistic needs. No later than
16 September 1, 1993, the State Board of Education shall
17 establish standards for the development, implementation and
18 monitoring of appropriate bilingual special individualized
19 educational programs. The State Board of Education shall
20 further incorporate appropriate monitoring procedures to
21 verify implementation of these standards. The district shall
22 indicate to the parent or guardian and the State Board of
23 Education the nature of the services the child will receive
24 for the regular school term while waiting placement in the
25 appropriate special education class.
26 If the student may be eligible to participate in the
27 Home-Based Support Services Program for Mentally Disabled
28 Adults authorized under the Developmental Disability and
29 Mental Disability Services Act upon becoming an adult, the
30 student's individualized education program shall include
31 plans for (i) determining the student's eligibility for those
32 home-based services, (ii) enrolling the student in the
33 program of home-based services, and (iii) developing a plan
34 for the student's most effective use of the home-based
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1 services after the student becomes an adult and no longer
2 receives special educational services under this Article.
3 The plans developed under this paragraph shall include
4 specific actions to be taken by specified individuals,
5 agencies, or officials.
6 (c) In the development of the individualized education
7 program for a student who is functionally blind, it shall be
8 presumed that proficiency in Braille reading and writing is
9 essential for the student's satisfactory educational
10 progress. For purposes of this subsection, the State Board
11 of Education shall determine the criteria for a student to be
12 classified as functionally blind. Students who are not
13 currently identified as functionally blind who are also
14 entitled to Braille instruction include: (i) those whose
15 vision loss is so severe that they are unable to read and
16 write at a level comparable to their peers solely through the
17 use of vision, and (ii) those who show evidence of
18 progressive vision loss that may result in functional
19 blindness. Each student who is functionally blind shall be
20 entitled to Braille reading and writing instruction that is
21 sufficient to enable the student to communicate with the same
22 level of proficiency as other students of comparable ability.
23 Instruction should be provided to the extent that the student
24 is physically and cognitively able to use Braille. Braille
25 instruction may be used in combination with other special
26 education services appropriate to the student's educational
27 needs. The assessment of each student who is functionally
28 blind for the purpose of developing the student's
29 individualized education program shall include documentation
30 of the student's strengths and weaknesses in Braille skills.
31 Each person assisting in the development of the
32 individualized education program for a student who is
33 functionally blind shall receive information describing the
34 benefits of Braille instruction. The individualized
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1 education program for each student who is functionally blind
2 shall specify the appropriate learning medium or media based
3 on the assessment report.
4 (d) To the maximum extent appropriate, the placement
5 shall provide the child with the opportunity to be educated
6 with children who are not disabled; provided that children
7 with disabilities who are recommended to be placed into
8 regular education classrooms are provided with supplementary
9 services to assist the children with disabilities to benefit
10 from the regular classroom instruction and are included on
11 the teacher's regular education class register. Subject to
12 the limitation of the preceding sentence, placement in
13 special classes, separate schools or other removal of the
14 disabled child from the regular educational environment shall
15 occur only when the nature of the severity of the disability
16 is such that education in the regular classes with the use of
17 supplementary aids and services cannot be achieved
18 satisfactorily. The placement of limited English proficiency
19 students with disabilities shall be in non-restrictive
20 environments which provide for integration with non-disabled
21 peers in bilingual classrooms. By January 1993 and annually
22 thereafter, school districts shall report data on students
23 from non-English speaking backgrounds receiving special
24 education and related services in public and private
25 facilities as prescribed in Section 2-3.30. If there is a
26 disagreement between parties involved regarding the special
27 education placement of any child, either in-state or
28 out-of-state, the placement is subject to impartial due
29 process procedures described in Article 10 of the Rules and
30 Regulations to Govern the Administration and Operation of
31 Special Education.
32 (e) No child who comes from a home in which a language
33 other than English is the principal language used may be
34 assigned to any class or program under this Article until he
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1 has been given, in the principal language used by the child
2 and used in his home, tests reasonably related to his
3 cultural environment. All testing and evaluation materials
4 and procedures utilized for evaluation and placement shall
5 not be linguistically, racially or culturally discriminatory.
6 (f) Nothing in this Article shall be construed to
7 require any child to undergo any physical examination or
8 medical treatment whose parents or guardian object thereto on
9 the grounds that such examination or treatment conflicts with
10 his religious beliefs.
11 (g) School boards or their designee shall provide to the
12 parents or guardian of a child prior written notice of any
13 decision (a) proposing to initiate or change, or (b) refusing
14 to initiate or change, the identification, evaluation, or
15 educational placement of the child or the provision of a free
16 appropriate public education to their child, and the reasons
17 therefor. Such written notification shall also inform the
18 parent or guardian of the opportunity to present complaints
19 with respect to any matter relating to the educational
20 placement of the student, or the provision of a free
21 appropriate public education and to have an impartial due
22 process hearing on the complaint. The notice shall inform
23 the parents or guardian in the parents' or guardian's native
24 language, unless it is clearly not feasible to do so, of
25 their rights and all procedures available pursuant to this
26 Act and federal law 94-142; it shall be the responsibility of
27 the State Superintendent to develop uniform notices setting
28 forth the procedures available under this Act and federal law
29 94-142 to be used by all school boards. The notice shall
30 also inform the parents or guardian of the availability upon
31 request of a list of free or low-cost legal and other
32 relevant services available locally to assist parents or
33 guardians in initiating an impartial due process hearing.
34 Any parent or guardian who is deaf, or does not normally
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1 communicate using spoken English, who participates in a
2 meeting with a representative of a local educational agency
3 for the purposes of developing an individualized educational
4 program shall be entitled to the services of an interpreter.
5 (h) A Level I due process hearing, hereinafter referred
6 as the hearing, shall be conducted upon the request of the
7 parents or guardian or local school board by an impartial
8 hearing officer appointed as follows: If the request is made
9 through the local school district, within 5 school days of
10 receipt of the request, the local school district shall
11 forward the request to the State Superintendent. Within 5
12 days after receiving this request of hearing, the State Board
13 of Education shall provide a list of 5 prospective, impartial
14 hearing officers. The State Board of Education, by rule or
15 regulation, shall establish criteria for determining which
16 persons can be included on such a list of prospective hearing
17 officers. No one on the list may be a resident of the school
18 district. No more than 2 of the 5 prospective hearing
19 officers shall be gainfully employed by or administratively
20 connected with any school district, or any joint agreement or
21 cooperative program in which school districts participate.
22 In addition, no more than 2 of the 5 prospective hearing
23 officers shall be gainfully employed by or administratively
24 connected with private providers of special education
25 services. The State Board of Education shall actively
26 recruit applicants for hearing officer positions. The board
27 and the parents or guardian or their legal representatives
28 within 5 days shall alternately strike one name from the list
29 until only one name remains. The parents or guardian shall
30 have the right to proceed first with the striking. The per
31 diem allowance for the hearing officer shall be established
32 and paid by the State Board of Education. The hearing shall
33 be closed to the public except that the parents or guardian
34 may require that the hearing be public. The hearing officer
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1 shall not be an employee of the school district, an employee
2 in any joint agreement or cooperative program in which the
3 district participates, or any other agency or organization
4 that is directly involved in the diagnosis, education or care
5 of the student or the State Board of Education. All impartial
6 hearing officers shall be adequately trained in federal and
7 state law, rules and regulations and case law regarding
8 special education. The State Board of Education shall use
9 resources from within and outside the agency for the purposes
10 of conducting this training. The impartial hearing officer
11 shall have the authority to require additional information or
12 evidence where he or she deems it necessary to make a
13 complete record and may order an independent evaluation of
14 the child, the cost of said evaluation to be paid by the
15 local school district. Such hearing shall not be considered
16 adversary in nature, but shall be directed toward bringing
17 out all facts necessary for the impartial hearing officer to
18 render an informed decision. The State Board of Education
19 shall, with the advice and approval of the Advisory Council
20 on Education of Children with Disabilities, promulgate rules
21 and regulations to establish the qualifications of the
22 hearing officers and the rules and procedure for such
23 hearings. The school district shall present evidence that
24 the special education needs of the child have been
25 appropriately identified and that the special education
26 program and related services proposed to meet the needs of
27 the child are adequate, appropriate and available. Any party
28 to the hearing shall have the right to: (a) be represented by
29 counsel and be accompanied and advised by individuals with
30 special knowledge or training with respect to the problems of
31 children with disabilities at the party's own expense; (b)
32 present evidence and confront and cross-examine witnesses;
33 (c) prohibit the introduction of any evidence at the hearing
34 that has not been disclosed to that party at least 5 days
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1 before the hearing; (d) obtain a written or electronic
2 verbatim record of the hearing; (e) obtain written findings
3 of fact and a written decision. The student shall be allowed
4 to attend the hearing unless the hearing officer finds that
5 attendance is not in the child's best interest or detrimental
6 to the child. The hearing officer shall specify in the
7 findings the reasons for denying attendance by the student.
8 The hearing officer, or the State Superintendent in
9 connection with State level hearings, may subpoena and compel
10 the attendance of witnesses and the production of evidence
11 reasonably necessary to the resolution of the hearing. The
12 subpoena may be issued upon request of any party. The State
13 Board of Education and the school board shall share equally
14 the costs of providing a written or electronic record of the
15 proceedings. Such record shall be transcribed and transmitted
16 to the State Superintendent no later than 10 days after
17 receipt of notice of appeal. The hearing officer shall
18 render a decision and shall submit a copy of the findings of
19 fact and decision to the parent or guardian and to the local
20 school board within 10 school days after the conclusion of
21 the hearing. The hearing officer may continue the hearing in
22 order to obtain additional information, and, at the
23 conclusion of the hearing, shall issue a decision based on
24 the record which specifies the special education and related
25 services which shall be provided to the child in accordance
26 with the child's needs. The hearing officer's decision shall
27 be binding upon the local school board and the parent unless
28 such decision is appealed pursuant to the provisions of this
29 Section.
30 (i) Any party aggrieved by the decision may appeal the
31 hearing officer's decision to the State Board of Education
32 and shall serve copies of the notice of such appeal on the
33 State Superintendent and on all other parties. The review
34 referred to in this Section shall be known as the Level II
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1 review. The State Board of Education shall provide a list of
2 5 prospective, impartial reviewing officers. No reviewing
3 officer shall be an employee of the State Board of Education
4 or gainfully employed by or administratively connected with
5 the school district, joint agreement or cooperative program
6 which is a party to this review. Each person on the list
7 shall be accredited by a national arbitration organization.
8 The per diem allowance for the review officers shall be paid
9 by the State Board of Education and may not exceed $250. All
10 reviewing officers on the list provided by the State Board of
11 Education shall be trained in federal and state law, rules
12 and regulations and case law regarding special education.
13 The State Board of Education shall use resources from within
14 and outside the agency for the purposes of conducting this
15 training. No one on the list may be a resident of the school
16 district. The board and the parents or guardian or other
17 legal representatives within 5 days shall alternately strike
18 one name from the list until only one name remains. The
19 parents or guardian shall have the right to proceed first
20 with the striking. The reviewing officer so selected shall
21 conduct an impartial review of the Level I hearing and may
22 issue subpoenas requiring the attendance of witnesses at such
23 review. The parties to the appeal shall be afforded the
24 opportunity to present oral argument and additional evidence
25 at the review. Upon completion of the review the reviewing
26 officer shall render a decision and shall provide a copy of
27 the decision to all parties.
28 (j) No later than 30 days after receipt of notice of
29 appeal, a final decision shall be reached and a copy mailed
30 to each of the parties. A reviewing officer may grant
31 specific extensions of time beyond the 30-day deadline at the
32 request of either party. If a Level II hearing is convened
33 the final decision of a Level II hearing officer shall occur
34 no more than 30 days following receipt of a notice of appeal,
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1 unless an extension of time is granted by the hearing officer
2 at the request of either party. The State Board of Education
3 shall establish rules and regulations delineating the
4 standards to be used in determining whether the reviewing
5 officer shall grant such extensions. Each hearing and each
6 review involving oral argument must be conducted at a time
7 and place which are reasonably convenient to the parents and
8 the child involved.
9 (k) Any party aggrieved by the decision of the reviewing
10 officer, including the parent or guardian, shall have the
11 right to bring a civil action with respect to the complaint
12 presented pursuant to this Section, which action may be
13 brought in any circuit court of competent jurisdiction within
14 120 days after a copy of the decision is mailed to the party
15 as provided in subsection (j). The civil action provided
16 above shall not be exclusive of any rights or causes of
17 action otherwise available. The commencement of a civil
18 action under subsection (k) of this Section shall operate as
19 a supersedeas. In any action brought under this Section the
20 court shall receive the records of the administrative
21 proceedings, shall hear additional evidence at the request of
22 a party, and basing its decision on the preponderance of the
23 evidence shall grant such relief as the court determines is
24 appropriate. In any instance where a school district
25 willfully disregards applicable regulations or statutes
26 regarding a child covered by this Article, and which
27 disregard has been detrimental to the child, the school
28 district shall be liable for any reasonable attorney's fees
29 incurred by the parent or guardian in connection with
30 proceedings under this Section.
31 (l) During the pendency of any proceedings conducted
32 pursuant to this Section, unless the State Superintendent of
33 Education, or the school district and the parents or guardian
34 otherwise agree, the student shall remain in the then current
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1 educational placement of such student, or if applying for
2 initial admission to the school district, shall, with the
3 consent of the parents or guardian, be placed in the school
4 district program until all such proceedings have been
5 completed. The costs for any special education and related
6 services or placement incurred following 60 school days after
7 the initial request for evaluation shall be borne by the
8 school district if such services or placement are in
9 accordance with the final determination as to the special
10 education and related services or placement which must be
11 provided to the child, provided however that in said 60 day
12 period there have been no delays caused by the child's parent
13 or guardian.
14 (m) Whenever (i) the parents or guardian of a child of
15 the type described in Section 14-1.02 are not known, or are
16 unavailable, unless the child resides with a foster parent,
17 or (ii) the child is a ward of the State residing in a
18 residential facility, a person shall be assigned to serve as
19 surrogate parent for the child in matters relating to the
20 identification, evaluation, and educational placement of the
21 child and the provision of a free appropriate public
22 education to the child. Surrogate parents Persons shall be
23 assigned as surrogate parents by the State Superintendent of
24 Education. The State Board of Education shall promulgate
25 rules and regulations establishing qualifications of such
26 persons and their responsibilities and the procedures to be
27 followed in making such assignments. Such surrogate parents
28 shall not be employees of the school district, an agency
29 created by joint agreement under Section 10-22.31, an agency
30 involved in the education or care of the student, or the
31 State Board of Education. For a child who is a ward of the
32 State residing in a residential facility, the surrogate
33 parent shall be an employee of a nonpublic agency that
34 provides only non-educational care. Services of any person
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1 assigned as surrogate parent shall terminate if the parent or
2 guardian becomes available unless otherwise requested by the
3 parents or guardian. The assignment of a person as surrogate
4 parent at no time supersedes, terminates, or suspends the
5 parents' or guardian's legal authority relative to the child.
6 Any person participating in good faith as surrogate parent on
7 behalf of the child before school officials or a hearing
8 officer shall have immunity from civil or criminal liability
9 that otherwise might result by reason of such participation,
10 except in cases of willful and wanton misconduct.
11 (n) At all stages of the hearing the hearing officer
12 shall require that interpreters be made available by the
13 local school district for persons who are deaf or for persons
14 whose normally spoken language is other than English.
15 (o) Whenever a person refuses to comply with any
16 subpoena issued under this Section, the circuit court of the
17 county in which such hearing is pending, on application of
18 the State Superintendent of Education or the party who
19 requested issuance of the subpoena may compel obedience by
20 attachment proceedings as for contempt, as in a case of
21 disobedience of the requirements of a subpoena from such
22 court for refusal to testify therein.
23 (Source: P.A. 88-45; 89-397, eff. 8-20-95; 89-425, eff.
24 6-1-96; 89-626, eff. 8-9-96.)
25 Section 99. Effective date. This Act takes effect upon
26 becoming law.