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91_SB1447enr SB1447 Enrolled 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 Enrolled -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 In this Section, "parent" includes a foster parent. 5 (b) No child shall be eligible for special education 6 facilities except with a carefully completed case study fully 7 reviewed by professional personnel in a multidisciplinary 8 staff conference and only upon the recommendation of 9 qualified specialists or a qualified bilingual specialist, if 10 available. At the conclusion of the multidisciplinary staff 11 conference, the parent or guardian of the child shall be 12 given a copy of the multidisciplinary conference summary 13 report and recommendations, which includes options 14 considered, and be informed of their right to obtain an 15 independent educational evaluation if they disagree with the 16 evaluation findings conducted or obtained by the school 17 district. If the school district's evaluation is shown to be 18 inappropriate, the school district shall reimburse the parent 19 for the cost of the independent evaluation. The State Board 20 of Education shall, with advice from the State Advisory 21 Council on Education of Children with Disabilities on the 22 inclusion of specific independent educational evaluators, 23 prepare a list of suggested independent educational 24 evaluators. The State Board of Education shall include on the 25 list clinical psychologists licensed pursuant to the Clinical 26 Psychologist Licensing Act. Such psychologists shall not be 27 paid fees in excess of the amount that would be received by a 28 school psychologist for performing the same services. The 29 State Board of Education shall supply school districts with 30 such list and make the list available to parents at their 31 request. School districts shall make the list available to 32 parents at the time they are informed of their right to 33 obtain an independent educational evaluation. However, the 34 school district may initiate an impartial due process hearing SB1447 Enrolled -3- LRB9107779NTsb 1 under this Section within 5 days of any written parent or 2 guardian request for an independent educational evaluation to 3 show that its evaluation is appropriate. If the final 4 decision is that the evaluation is appropriate, the parent 5 still has a right to an independent educational evaluation, 6 but not at public expense. An independent educational 7 evaluation at public expense must be completed within 30 days 8 of a parent or guardian written request unless the school 9 district initiates an impartial due process hearing or the 10 parent or guardian or school district offers reasonable 11 grounds to show that such 30 day time period should be 12 extended. If the due process hearing decision indicates that 13 the parent or guardian is entitled to an independent 14 educational evaluation, it must be completed within 30 days 15 of the decision unless the parent or guardian or the school 16 district offers reasonable grounds to show that such 30 day 17 period should be extended. If a parent disagrees with the 18 summary report or recommendations of the multidisciplinary 19 conference or the findings of any educational evaluation 20 which results therefrom, the school district shall not 21 proceed with a placement based upon such evaluation and the 22 child shall remain in his or her regular classroom setting. 23 No child shall be eligible for admission to a special class 24 for the educable mentally disabled or for the trainable 25 mentally disabled except with a psychological evaluation and 26 recommendation by a school psychologist. Consent shall be 27 obtained from the parent or guardian of a child before any 28 evaluation is conducted. If consent is not given by the 29 parent or guardian or if the parent or guardian disagrees 30 with the findings of the evaluation, then the school district 31 may initiate an impartial due process hearing under this 32 Section. The school district may evaluate the child if that 33 is the decision resulting from the impartial due process 34 hearing and the decision is not appealed or if the decision SB1447 Enrolled -4- LRB9107779NTsb 1 is affirmed on appeal. The determination of eligibility shall 2 be made within 60 school days from the date of referral by 3 school authorities for evaluation by the district or date of 4 application for admittance by the parent or guardian of the 5 child. In those instances when students are referred for 6 evaluation with fewer than 60 pupil attendance days left in 7 the school year, the eligibility determination shall be made 8 prior to the first day of the following school year. After a 9 child has been determined to be eligible for a special 10 education class, such child must be placed in the appropriate 11 program pursuant to the individualized educational program by 12 or no later than the beginning of the next school semester. 13 The appropriate program pursuant to the individualized 14 educational program of students whose native tongue is a 15 language other than English shall reflect the special 16 education, cultural and linguistic needs. No later than 17 September 1, 1993, the State Board of Education shall 18 establish standards for the development, implementation and 19 monitoring of appropriate bilingual special individualized 20 educational programs. The State Board of Education shall 21 further incorporate appropriate monitoring procedures to 22 verify implementation of these standards. The district shall 23 indicate to the parent or guardian and the State Board of 24 Education the nature of the services the child will receive 25 for the regular school term while waiting placement in the 26 appropriate special education class. 27 If the student may be eligible to participate in the 28 Home-Based Support Services Program for Mentally Disabled 29 Adults authorized under the Developmental Disability and 30 Mental Disability Services Act upon becoming an adult, the 31 student's individualized education program shall include 32 plans for (i) determining the student's eligibility for those 33 home-based services, (ii) enrolling the student in the 34 program of home-based services, and (iii) developing a plan SB1447 Enrolled -5- LRB9107779NTsb 1 for the student's most effective use of the home-based 2 services after the student becomes an adult and no longer 3 receives special educational services under this Article. 4 The plans developed under this paragraph shall include 5 specific actions to be taken by specified individuals, 6 agencies, or officials. 7 (c) In the development of the individualized education 8 program for a student who is functionally blind, it shall be 9 presumed that proficiency in Braille reading and writing is 10 essential for the student's satisfactory educational 11 progress. For purposes of this subsection, the State Board 12 of Education shall determine the criteria for a student to be 13 classified as functionally blind. Students who are not 14 currently identified as functionally blind who are also 15 entitled to Braille instruction include: (i) those whose 16 vision loss is so severe that they are unable to read and 17 write at a level comparable to their peers solely through the 18 use of vision, and (ii) those who show evidence of 19 progressive vision loss that may result in functional 20 blindness. Each student who is functionally blind shall be 21 entitled to Braille reading and writing instruction that is 22 sufficient to enable the student to communicate with the same 23 level of proficiency as other students of comparable ability. 24 Instruction should be provided to the extent that the student 25 is physically and cognitively able to use Braille. Braille 26 instruction may be used in combination with other special 27 education services appropriate to the student's educational 28 needs. The assessment of each student who is functionally 29 blind for the purpose of developing the student's 30 individualized education program shall include documentation 31 of the student's strengths and weaknesses in Braille skills. 32 Each person assisting in the development of the 33 individualized education program for a student who is 34 functionally blind shall receive information describing the SB1447 Enrolled -6- LRB9107779NTsb 1 benefits of Braille instruction. The individualized 2 education program for each student who is functionally blind 3 shall specify the appropriate learning medium or media based 4 on the assessment report. 5 (d) To the maximum extent appropriate, the placement 6 shall provide the child with the opportunity to be educated 7 with children who are not disabled; provided that children 8 with disabilities who are recommended to be placed into 9 regular education classrooms are provided with supplementary 10 services to assist the children with disabilities to benefit 11 from the regular classroom instruction and are included on 12 the teacher's regular education class register. Subject to 13 the limitation of the preceding sentence, placement in 14 special classes, separate schools or other removal of the 15 disabled child from the regular educational environment shall 16 occur only when the nature of the severity of the disability 17 is such that education in the regular classes with the use of 18 supplementary aids and services cannot be achieved 19 satisfactorily. The placement of limited English proficiency 20 students with disabilities shall be in non-restrictive 21 environments which provide for integration with non-disabled 22 peers in bilingual classrooms. By January 1993 and annually 23 thereafter, school districts shall report data on students 24 from non-English speaking backgrounds receiving special 25 education and related services in public and private 26 facilities as prescribed in Section 2-3.30. If there is a 27 disagreement between parties involved regarding the special 28 education placement of any child, either in-state or 29 out-of-state, the placement is subject to impartial due 30 process procedures described in Article 10 of the Rules and 31 Regulations to Govern the Administration and Operation of 32 Special Education. 33 (e) No child who comes from a home in which a language 34 other than English is the principal language used may be SB1447 Enrolled -7- LRB9107779NTsb 1 assigned to any class or program under this Article until he 2 has been given, in the principal language used by the child 3 and used in his home, tests reasonably related to his 4 cultural environment. All testing and evaluation materials 5 and procedures utilized for evaluation and placement shall 6 not be linguistically, racially or culturally discriminatory. 7 (f) Nothing in this Article shall be construed to 8 require any child to undergo any physical examination or 9 medical treatment whose parents or guardian object thereto on 10 the grounds that such examination or treatment conflicts with 11 his religious beliefs. 12 (g) School boards or their designee shall provide to the 13 parents or guardian of a child prior written notice of any 14 decision (a) proposing to initiate or change, or (b) refusing 15 to initiate or change, the identification, evaluation, or 16 educational placement of the child or the provision of a free 17 appropriate public education to their child, and the reasons 18 therefor. Such written notification shall also inform the 19 parent or guardian of the opportunity to present complaints 20 with respect to any matter relating to the educational 21 placement of the student, or the provision of a free 22 appropriate public education and to have an impartial due 23 process hearing on the complaint. The notice shall inform 24 the parents or guardian in the parents' or guardian's native 25 language, unless it is clearly not feasible to do so, of 26 their rights and all procedures available pursuant to this 27 Act and federal law 94-142; it shall be the responsibility of 28 the State Superintendent to develop uniform notices setting 29 forth the procedures available under this Act and federal law 30 94-142 to be used by all school boards. The notice shall 31 also inform the parents or guardian of the availability upon 32 request of a list of free or low-cost legal and other 33 relevant services available locally to assist parents or 34 guardians in initiating an impartial due process hearing. SB1447 Enrolled -8- LRB9107779NTsb 1 Any parent or guardian who is deaf, or does not normally 2 communicate using spoken English, who participates in a 3 meeting with a representative of a local educational agency 4 for the purposes of developing an individualized educational 5 program shall be entitled to the services of an interpreter. 6 (h) A Level I due process hearing, hereinafter referred 7 as the hearing, shall be conducted upon the request of the 8 parents or guardian or local school board by an impartial 9 hearing officer appointed as follows: If the request is made 10 through the local school district, within 5 school days of 11 receipt of the request, the local school district shall 12 forward the request to the State Superintendent. Within 5 13 days after receiving this request of hearing, the State Board 14 of Education shall provide a list of 5 prospective, impartial 15 hearing officers. The State Board of Education, by rule or 16 regulation, shall establish criteria for determining which 17 persons can be included on such a list of prospective hearing 18 officers. No one on the list may be a resident of the school 19 district. No more than 2 of the 5 prospective hearing 20 officers shall be gainfully employed by or administratively 21 connected with any school district, or any joint agreement or 22 cooperative program in which school districts participate. 23 In addition, no more than 2 of the 5 prospective hearing 24 officers shall be gainfully employed by or administratively 25 connected with private providers of special education 26 services. The State Board of Education shall actively 27 recruit applicants for hearing officer positions. The board 28 and the parents or guardian or their legal representatives 29 within 5 days shall alternately strike one name from the list 30 until only one name remains. The parents or guardian shall 31 have the right to proceed first with the striking. The per 32 diem allowance for the hearing officer shall be established 33 and paid by the State Board of Education. The hearing shall 34 be closed to the public except that the parents or guardian SB1447 Enrolled -9- LRB9107779NTsb 1 may require that the hearing be public. The hearing officer 2 shall not be an employee of the school district, an employee 3 in any joint agreement or cooperative program in which the 4 district participates, or any other agency or organization 5 that is directly involved in the diagnosis, education or care 6 of the student or the State Board of Education. All impartial 7 hearing officers shall be adequately trained in federal and 8 state law, rules and regulations and case law regarding 9 special education. The State Board of Education shall use 10 resources from within and outside the agency for the purposes 11 of conducting this training. The impartial hearing officer 12 shall have the authority to require additional information or 13 evidence where he or she deems it necessary to make a 14 complete record and may order an independent evaluation of 15 the child, the cost of said evaluation to be paid by the 16 local school district. Such hearing shall not be considered 17 adversary in nature, but shall be directed toward bringing 18 out all facts necessary for the impartial hearing officer to 19 render an informed decision. The State Board of Education 20 shall, with the advice and approval of the Advisory Council 21 on Education of Children with Disabilities, promulgate rules 22 and regulations to establish the qualifications of the 23 hearing officers and the rules and procedure for such 24 hearings. The school district shall present evidence that 25 the special education needs of the child have been 26 appropriately identified and that the special education 27 program and related services proposed to meet the needs of 28 the child are adequate, appropriate and available. Any party 29 to the hearing shall have the right to: (a) be represented by 30 counsel and be accompanied and advised by individuals with 31 special knowledge or training with respect to the problems of 32 children with disabilities at the party's own expense; (b) 33 present evidence and confront and cross-examine witnesses; 34 (c) prohibit the introduction of any evidence at the hearing SB1447 Enrolled -10- LRB9107779NTsb 1 that has not been disclosed to that party at least 5 days 2 before the hearing; (d) obtain a written or electronic 3 verbatim record of the hearing; (e) obtain written findings 4 of fact and a written decision. The student shall be allowed 5 to attend the hearing unless the hearing officer finds that 6 attendance is not in the child's best interest or detrimental 7 to the child. The hearing officer shall specify in the 8 findings the reasons for denying attendance by the student. 9 The hearing officer, or the State Superintendent in 10 connection with State level hearings, may subpoena and compel 11 the attendance of witnesses and the production of evidence 12 reasonably necessary to the resolution of the hearing. The 13 subpoena may be issued upon request of any party. The State 14 Board of Education and the school board shall share equally 15 the costs of providing a written or electronic record of the 16 proceedings. Such record shall be transcribed and transmitted 17 to the State Superintendent no later than 10 days after 18 receipt of notice of appeal. The hearing officer shall 19 render a decision and shall submit a copy of the findings of 20 fact and decision to the parent or guardian and to the local 21 school board within 10 school days after the conclusion of 22 the hearing. The hearing officer may continue the hearing in 23 order to obtain additional information, and, at the 24 conclusion of the hearing, shall issue a decision based on 25 the record which specifies the special education and related 26 services which shall be provided to the child in accordance 27 with the child's needs. The hearing officer's decision shall 28 be binding upon the local school board and the parent unless 29 such decision is appealed pursuant to the provisions of this 30 Section. 31 (i) Any party aggrieved by the decision may appeal the 32 hearing officer's decision to the State Board of Education 33 and shall serve copies of the notice of such appeal on the 34 State Superintendent and on all other parties. The review SB1447 Enrolled -11- LRB9107779NTsb 1 referred to in this Section shall be known as the Level II 2 review. The State Board of Education shall provide a list of 3 5 prospective, impartial reviewing officers. No reviewing 4 officer shall be an employee of the State Board of Education 5 or gainfully employed by or administratively connected with 6 the school district, joint agreement or cooperative program 7 which is a party to this review. Each person on the list 8 shall be accredited by a national arbitration organization. 9 The per diem allowance for the review officers shall be paid 10 by the State Board of Education and may not exceed $250. All 11 reviewing officers on the list provided by the State Board of 12 Education shall be trained in federal and state law, rules 13 and regulations and case law regarding special education. 14 The State Board of Education shall use resources from within 15 and outside the agency for the purposes of conducting this 16 training. No one on the list may be a resident of the school 17 district. The board and the parents or guardian or other 18 legal representatives within 5 days shall alternately strike 19 one name from the list until only one name remains. The 20 parents or guardian shall have the right to proceed first 21 with the striking. The reviewing officer so selected shall 22 conduct an impartial review of the Level I hearing and may 23 issue subpoenas requiring the attendance of witnesses at such 24 review. The parties to the appeal shall be afforded the 25 opportunity to present oral argument and additional evidence 26 at the review. Upon completion of the review the reviewing 27 officer shall render a decision and shall provide a copy of 28 the decision to all parties. 29 (j) No later than 30 days after receipt of notice of 30 appeal, a final decision shall be reached and a copy mailed 31 to each of the parties. A reviewing officer may grant 32 specific extensions of time beyond the 30-day deadline at the 33 request of either party. If a Level II hearing is convened 34 the final decision of a Level II hearing officer shall occur SB1447 Enrolled -12- LRB9107779NTsb 1 no more than 30 days following receipt of a notice of appeal, 2 unless an extension of time is granted by the hearing officer 3 at the request of either party. The State Board of Education 4 shall establish rules and regulations delineating the 5 standards to be used in determining whether the reviewing 6 officer shall grant such extensions. Each hearing and each 7 review involving oral argument must be conducted at a time 8 and place which are reasonably convenient to the parents and 9 the child involved. 10 (k) Any party aggrieved by the decision of the reviewing 11 officer, including the parent or guardian, shall have the 12 right to bring a civil action with respect to the complaint 13 presented pursuant to this Section, which action may be 14 brought in any circuit court of competent jurisdiction within 15 120 days after a copy of the decision is mailed to the party 16 as provided in subsection (j). The civil action provided 17 above shall not be exclusive of any rights or causes of 18 action otherwise available. The commencement of a civil 19 action under subsection (k) of this Section shall operate as 20 a supersedeas. In any action brought under this Section the 21 court shall receive the records of the administrative 22 proceedings, shall hear additional evidence at the request of 23 a party, and basing its decision on the preponderance of the 24 evidence shall grant such relief as the court determines is 25 appropriate. In any instance where a school district 26 willfully disregards applicable regulations or statutes 27 regarding a child covered by this Article, and which 28 disregard has been detrimental to the child, the school 29 district shall be liable for any reasonable attorney's fees 30 incurred by the parent or guardian in connection with 31 proceedings under this Section. 32 (l) During the pendency of any proceedings conducted 33 pursuant to this Section, unless the State Superintendent of 34 Education, or the school district and the parents or guardian SB1447 Enrolled -13- LRB9107779NTsb 1 otherwise agree, the student shall remain in the then current 2 educational placement of such student, or if applying for 3 initial admission to the school district, shall, with the 4 consent of the parents or guardian, be placed in the school 5 district program until all such proceedings have been 6 completed. The costs for any special education and related 7 services or placement incurred following 60 school days after 8 the initial request for evaluation shall be borne by the 9 school district if such services or placement are in 10 accordance with the final determination as to the special 11 education and related services or placement which must be 12 provided to the child, provided however that in said 60 day 13 period there have been no delays caused by the child's parent 14 or guardian. 15 (m) Whenever (i) the parents or guardian of a child of 16 the type described in Section 14-1.02 are not known,or are 17 unavailable or (ii) the child is a ward of the State residing 18 in a residential facility, a person shall be assigned to 19 serve as surrogate parent for the child in matters relating 20 to the identification, evaluation, and educational placement 21 of the 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 Enrolled -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.