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91_SB1447eng SB1447 Engrossed 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 SB1447 Engrossed -2- LRB9107779NTsb 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 SB1447 Engrossed -3- LRB9107779NTsb 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 SB1447 Engrossed -4- LRB9107779NTsb 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 SB1447 Engrossed -5- LRB9107779NTsb 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 SB1447 Engrossed -6- LRB9107779NTsb 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 SB1447 Engrossed -7- LRB9107779NTsb 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 SB1447 Engrossed -8- LRB9107779NTsb 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 SB1447 Engrossed -9- LRB9107779NTsb 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 SB1447 Engrossed -10- LRB9107779NTsb 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 SB1447 Engrossed -11- LRB9107779NTsb 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, SB1447 Engrossed -12- LRB9107779NTsb 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 SB1447 Engrossed -13- LRB9107779NTsb 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 parentsPersonsshall be 23 assignedas surrogate parentsby 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 may be an employee of a nonpublic agency that provides 34 only non-educational care. Services of any person assigned SB1447 Engrossed -14- LRB9107779NTsb 1 as surrogate parent shall terminate if the parent or guardian 2 becomes available unless otherwise requested by the parents 3 or guardian. The assignment of a person as surrogate parent 4 at no time supersedes, terminates, or suspends the parents' 5 or guardian's legal authority relative to the child. Any 6 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.