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92_SB1818 LRB9214157NTpk 1 AN ACT concerning education. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The School Code is amended by changing 5 Section 14-8.02 as follows: 6 (105 ILCS 5/14-8.02) (from Ch. 122, par. 14-8.02) 7 Sec. 14-8.02. Identification, Evaluation and Placement 8 of Children. 9 (a) The State Board of Education shall make rules under 10 which local school boards shall determine the eligibility of 11 children to receive special education. Such rules shall 12 ensure that a free appropriate public education be available 13 to all children with disabilities as defined in Section 14 14-1.02. The State Board of Education shall require local 15 school districts to administer non-discriminatory procedures 16 or tests to limited English proficiency students coming from 17 homes in which a language other than English is used to 18 determine their eligibility to receive special education. 19 The placement of low English proficiency students in special 20 education programs and facilities shall be made in accordance 21 with the test results reflecting the student's linguistic, 22 cultural and special education needs. For purposes of 23 determining the eligibility of children the State Board of 24 Education shall include in the rules definitions of "case 25 study", "staff conference", "individualized educational 26 program", and "qualified specialist" appropriate to each 27 category of children with disabilities as defined in this 28 Article. For purposes of determining the eligibility of 29 children from homes in which a language other than English is 30 used, the State Board of Education, no later than September 31 1, 1993, shall include in the rules definitions for -2- LRB9214157NTpk 1 "qualified bilingual specialists" and "linguistically and 2 culturally appropriate individualized educational programs". 3 In this Section, "parent" includes a foster parent. 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 -3- LRB9214157NTpk 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 -4- LRB9214157NTpk 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. "Date of referral", as used in this subsection (b), 5 means the date on which an evaluation is requested, and any 6 rule to the contrary is void. In those instances when 7 students are referred for evaluation with fewer than 60 pupil 8 attendance days left in the school year, the eligibility 9 determination shall be made prior to the first day of the 10 following school year. After a child has been determined to 11 be eligible for a special education class, such child must be 12 placed in the appropriate program pursuant to the 13 individualized educational program by or no later than the 14 beginning of the next school semester. The appropriate 15 program pursuant to the individualized educational program of 16 students whose native tongue is a language other than English 17 shall reflect the special education, cultural and linguistic 18 needs. No later than September 1, 1993, the State Board of 19 Education shall establish standards for the development, 20 implementation and monitoring of appropriate bilingual 21 special individualized educational programs. The State Board 22 of Education shall further incorporate appropriate monitoring 23 procedures to verify implementation of these standards. The 24 district shall indicate to the parent or guardian and the 25 State Board of Education the nature of the services the child 26 will receive for the regular school term while waiting 27 placement in the appropriate special education class. 28 If the student may be eligible to participate in the 29 Home-Based Support Services Program for Mentally Disabled 30 Adults authorized under the Developmental Disability and 31 Mental Disability Services Act upon becoming an adult, the 32 student's individualized education program shall include 33 plans for (i) determining the student's eligibility for those 34 home-based services, (ii) enrolling the student in the -5- LRB9214157NTpk 1 program of home-based services, and (iii) developing a plan 2 for the student's most effective use of the home-based 3 services after the student becomes an adult and no longer 4 receives special educational services under this Article. 5 The plans developed under this paragraph shall include 6 specific actions to be taken by specified individuals, 7 agencies, or officials. 8 (c) In the development of the individualized education 9 program for a student who is functionally blind, it shall be 10 presumed that proficiency in Braille reading and writing is 11 essential for the student's satisfactory educational 12 progress. For purposes of this subsection, the State Board 13 of Education shall determine the criteria for a student to be 14 classified as functionally blind. Students who are not 15 currently identified as functionally blind who are also 16 entitled to Braille instruction include: (i) those whose 17 vision loss is so severe that they are unable to read and 18 write at a level comparable to their peers solely through the 19 use of vision, and (ii) those who show evidence of 20 progressive vision loss that may result in functional 21 blindness. Each student who is functionally blind shall be 22 entitled to Braille reading and writing instruction that is 23 sufficient to enable the student to communicate with the same 24 level of proficiency as other students of comparable ability. 25 Instruction should be provided to the extent that the student 26 is physically and cognitively able to use Braille. Braille 27 instruction may be used in combination with other special 28 education services appropriate to the student's educational 29 needs. The assessment of each student who is functionally 30 blind for the purpose of developing the student's 31 individualized education program shall include documentation 32 of the student's strengths and weaknesses in Braille skills. 33 Each person assisting in the development of the 34 individualized education program for a student who is -6- LRB9214157NTpk 1 functionally blind shall receive information describing the 2 benefits of Braille instruction. The individualized 3 education program for each student who is functionally blind 4 shall specify the appropriate learning medium or media based 5 on the assessment report. 6 (d) To the maximum extent appropriate, the placement 7 shall provide the child with the opportunity to be educated 8 with children who are not disabled; provided that children 9 with disabilities who are recommended to be placed into 10 regular education classrooms are provided with supplementary 11 services to assist the children with disabilities to benefit 12 from the regular classroom instruction and are included on 13 the teacher's regular education class register. Subject to 14 the limitation of the preceding sentence, placement in 15 special classes, separate schools or other removal of the 16 disabled child from the regular educational environment shall 17 occur only when the nature of the severity of the disability 18 is such that education in the regular classes with the use of 19 supplementary aids and services cannot be achieved 20 satisfactorily. The placement of limited English proficiency 21 students with disabilities shall be in non-restrictive 22 environments which provide for integration with non-disabled 23 peers in bilingual classrooms. By January 1993 and annually 24 thereafter, school districts shall report data on students 25 from non-English speaking backgrounds receiving special 26 education and related services in public and private 27 facilities as prescribed in Section 2-3.30. If there is a 28 disagreement between parties involved regarding the special 29 education placement of any child, either in-state or 30 out-of-state, the placement is subject to impartial due 31 process procedures described in Article 10 of the Rules and 32 Regulations to Govern the Administration and Operation of 33 Special Education. 34 (e) No child who comes from a home in which a language -7- LRB9214157NTpk 1 other than English is the principal language used may be 2 assigned to any class or program under this Article until he 3 has been given, in the principal language used by the child 4 and used in his home, tests reasonably related to his 5 cultural environment. All testing and evaluation materials 6 and procedures utilized for evaluation and placement shall 7 not be linguistically, racially or culturally discriminatory. 8 (f) Nothing in this Article shall be construed to 9 require any child to undergo any physical examination or 10 medical treatment whose parents or guardian object thereto on 11 the grounds that such examination or treatment conflicts with 12 his religious beliefs. 13 (g) School boards or their designee shall provide to the 14 parents or guardian of a child prior written notice of any 15 decision (a) proposing to initiate or change, or (b) refusing 16 to initiate or change, the identification, evaluation, or 17 educational placement of the child or the provision of a free 18 appropriate public education to their child, and the reasons 19 therefor. Such written notification shall also inform the 20 parent or guardian of the opportunity to present complaints 21 with respect to any matter relating to the educational 22 placement of the student, or the provision of a free 23 appropriate public education and to have an impartial due 24 process hearing on the complaint. The notice shall inform 25 the parents or guardian in the parents' or guardian's native 26 language, unless it is clearly not feasible to do so, of 27 their rights and all procedures available pursuant to this 28 Act and federal law 94-142; it shall be the responsibility of 29 the State Superintendent to develop uniform notices setting 30 forth the procedures available under this Act and federal law 31 94-142 to be used by all school boards. The notice shall 32 also inform the parents or guardian of the availability upon 33 request of a list of free or low-cost legal and other 34 relevant services available locally to assist parents or -8- LRB9214157NTpk 1 guardians in initiating an impartial due process hearing. 2 Any parent or guardian who is deaf, or does not normally 3 communicate using spoken English, who participates in a 4 meeting with a representative of a local educational agency 5 for the purposes of developing an individualized educational 6 program shall be entitled to the services of an interpreter. 7 (h) A Level I due process hearing, hereinafter referred 8 as the hearing, shall be conducted upon the request of the 9 parents or guardian or local school board by an impartial 10 hearing officer appointed as follows: If the request is made 11 through the local school district, within 5 school days of 12 receipt of the request, the local school district shall 13 forward the request to the State Superintendent. Within 5 14 days after receiving this request of hearing, the State Board 15 of Education shall provide a list of 5 prospective, impartial 16 hearing officers. The State Board of Education, by rule or 17 regulation, shall establish criteria for determining which 18 persons can be included on such a list of prospective hearing 19 officers. No one on the list may be a resident of the school 20 district. No more than 2 of the 5 prospective hearing 21 officers shall be gainfully employed by or administratively 22 connected with any school district, or any joint agreement or 23 cooperative program in which school districts participate. 24 In addition, no more than 2 of the 5 prospective hearing 25 officers shall be gainfully employed by or administratively 26 connected with private providers of special education 27 services. The State Board of Education shall actively 28 recruit applicants for hearing officer positions. The board 29 and the parents or guardian or their legal representatives 30 within 5 days shall alternately strike one name from the list 31 until only one name remains. The parents or guardian shall 32 have the right to proceed first with the striking. The per 33 diem allowance for the hearing officer shall be established 34 and paid by the State Board of Education. The hearing shall -9- LRB9214157NTpk 1 be closed to the public except that the parents or guardian 2 may require that the hearing be public. The hearing officer 3 shall not be an employee of the school district, an employee 4 in any joint agreement or cooperative program in which the 5 district participates, or any other agency or organization 6 that is directly involved in the diagnosis, education or care 7 of the student or the State Board of Education. All impartial 8 hearing officers shall be adequately trained in federal and 9 state law, rules and regulations and case law regarding 10 special education. The State Board of Education shall use 11 resources from within and outside the agency for the purposes 12 of conducting this training. The impartial hearing officer 13 shall have the authority to require additional information or 14 evidence where he or she deems it necessary to make a 15 complete record and may order an independent evaluation of 16 the child, the cost of said evaluation to be paid by the 17 local school district. Such hearing shall not be considered 18 adversary in nature, but shall be directed toward bringing 19 out all facts necessary for the impartial hearing officer to 20 render an informed decision. The State Board of Education 21 shall, with the advice and approval of the Advisory Council 22 on Education of Children with Disabilities, promulgate rules 23 and regulations to establish the qualifications of the 24 hearing officers and the rules and procedure for such 25 hearings. The school district shall present evidence that 26 the special education needs of the child have been 27 appropriately identified and that the special education 28 program and related services proposed to meet the needs of 29 the child are adequate, appropriate and available. Any party 30 to the hearing shall have the right to: (a) be represented by 31 counsel and be accompanied and advised by individuals with 32 special knowledge or training with respect to the problems of 33 children with disabilities at the party's own expense; (b) 34 present evidence and confront and cross-examine witnesses; -10- LRB9214157NTpk 1 (c) prohibit the introduction of any evidence at the hearing 2 that has not been disclosed to that party at least 5 days 3 before the hearing; (d) obtain a written or electronic 4 verbatim record of the hearing; (e) obtain written findings 5 of fact and a written decision. The student shall be allowed 6 to attend the hearing unless the hearing officer finds that 7 attendance is not in the child's best interest or detrimental 8 to the child. The hearing officer shall specify in the 9 findings the reasons for denying attendance by the student. 10 The hearing officer, or the State Superintendent in 11 connection with State level hearings, may subpoena and compel 12 the attendance of witnesses and the production of evidence 13 reasonably necessary to the resolution of the hearing. The 14 subpoena may be issued upon request of any party. The State 15 Board of Education and the school board shall share equally 16 the costs of providing a written or electronic record of the 17 proceedings. Such record shall be transcribed and transmitted 18 to the State Superintendent no later than 10 days after 19 receipt of notice of appeal. The hearing officer shall 20 render a decision and shall submit a copy of the findings of 21 fact and decision to the parent or guardian and to the local 22 school board within 10 school days after the conclusion of 23 the hearing. The hearing officer may continue the hearing in 24 order to obtain additional information, and, at the 25 conclusion of the hearing, shall issue a decision based on 26 the record which specifies the special education and related 27 services which shall be provided to the child in accordance 28 with the child's needs. The hearing officer's decision shall 29 be binding upon the local school board and the parent unless 30 such decision is appealed pursuant to the provisions of this 31 Section. 32 (i) Any party aggrieved by the decision may appeal the 33 hearing officer's decision to the State Board of Education 34 and shall serve copies of the notice of such appeal on the -11- LRB9214157NTpk 1 State Superintendent and on all other parties. The review 2 referred to in this Section shall be known as the Level II 3 review. The State Board of Education shall provide a list of 4 5 prospective, impartial reviewing officers. No reviewing 5 officer shall be an employee of the State Board of Education 6 or gainfully employed by or administratively connected with 7 the school district, joint agreement or cooperative program 8 which is a party to this review. Each person on the list 9 shall be accredited by a national arbitration organization. 10 The per diem allowance for the review officers shall be paid 11 by the State Board of Education and may not exceed $250. All 12 reviewing officers on the list provided by the State Board of 13 Education shall be trained in federal and state law, rules 14 and regulations and case law regarding special education. 15 The State Board of Education shall use resources from within 16 and outside the agency for the purposes of conducting this 17 training. No one on the list may be a resident of the school 18 district. The board and the parents or guardian or other 19 legal representatives within 5 days shall alternately strike 20 one name from the list until only one name remains. The 21 parents or guardian shall have the right to proceed first 22 with the striking. The reviewing officer so selected shall 23 conduct an impartial review of the Level I hearing and may 24 issue subpoenas requiring the attendance of witnesses at such 25 review. The parties to the appeal shall be afforded the 26 opportunity to present oral argument and additional evidence 27 at the review. Upon completion of the review the reviewing 28 officer shall render a decision and shall provide a copy of 29 the decision to all parties. 30 (j) No later than 30 days after receipt of notice of 31 appeal, a final decision shall be reached and a copy mailed 32 to each of the parties. A reviewing officer may grant 33 specific extensions of time beyond the 30-day deadline at the 34 request of either party. If a Level II hearing is convened -12- LRB9214157NTpk 1 the final decision of a Level II hearing officer shall occur 2 no more than 30 days following receipt of a notice of appeal, 3 unless an extension of time is granted by the hearing officer 4 at the request of either party. The State Board of Education 5 shall establish rules and regulations delineating the 6 standards to be used in determining whether the reviewing 7 officer shall grant such extensions. Each hearing and each 8 review involving oral argument must be conducted at a time 9 and place which are reasonably convenient to the parents and 10 the child involved. 11 (k) Any party aggrieved by the decision of the reviewing 12 officer, including the parent or guardian, shall have the 13 right to bring a civil action with respect to the complaint 14 presented pursuant to this Section, which action may be 15 brought in any circuit court of competent jurisdiction within 16 120 days after a copy of the decision is mailed to the party 17 as provided in subsection (j). The civil action provided 18 above shall not be exclusive of any rights or causes of 19 action otherwise available. The commencement of a civil 20 action under subsection (k) of this Section shall operate as 21 a supersedeas. In any action brought under this Section the 22 court shall receive the records of the administrative 23 proceedings, shall hear additional evidence at the request of 24 a party, and basing its decision on the preponderance of the 25 evidence shall grant such relief as the court determines is 26 appropriate. In any instance where a school district 27 willfully disregards applicable regulations or statutes 28 regarding a child covered by this Article, and which 29 disregard has been detrimental to the child, the school 30 district shall be liable for any reasonable attorney's fees 31 incurred by the parent or guardian in connection with 32 proceedings under this Section. 33 (l) During the pendency of any proceedings conducted 34 pursuant to this Section, unless the State Superintendent of -13- LRB9214157NTpk 1 Education, or the school district and the parents or guardian 2 otherwise agree, the student shall remain in the then current 3 educational placement of such student, or if applying for 4 initial admission to the school district, shall, with the 5 consent of the parents or guardian, be placed in the school 6 district program until all such proceedings have been 7 completed. The costs for any special education and related 8 services or placement incurred following 60 school days after 9 the initial request for evaluation shall be borne by the 10 school district if such services or placement are in 11 accordance with the final determination as to the special 12 education and related services or placement which must be 13 provided to the child, provided however that in said 60 day 14 period there have been no delays caused by the child's parent 15 or guardian. 16 (m) Whenever (i) the parents or guardian of a child of 17 the type described in Section 14-1.02 are not known or are 18 unavailable or (ii) the child is a ward of the State residing 19 in a residential facility, a person shall be assigned to 20 serve as surrogate parent for the child in matters relating 21 to the identification, evaluation, and educational placement 22 of the child and the provision of a free appropriate public 23 education to the child. Surrogate parents shall be assigned 24 by the State Superintendent of Education. The State Board of 25 Education shall promulgate rules and regulations establishing 26 qualifications of such persons and their responsibilities and 27 the procedures to be followed in making such assignments. 28 Such surrogate parents shall not be employees of the school 29 district, an agency created by joint agreement under Section 30 10-22.31, an agency involved in the education or care of the 31 student, or the State Board of Education. For a child who is 32 a ward of the State residing in a residential facility, the 33 surrogate parent may be an employee of a nonpublic agency 34 that provides only non-educational care. Services of any -14- LRB9214157NTpk 1 person assigned as surrogate parent shall terminate if the 2 parent or guardian becomes available unless otherwise 3 requested by the parents or guardian. The assignment of a 4 person as surrogate parent at no time supersedes, terminates, 5 or suspends the parents' or guardian's legal authority 6 relative to the child. Any person participating in good 7 faith as surrogate parent on behalf of the child before 8 school officials or a hearing officer shall have immunity 9 from civil or criminal liability that otherwise might result 10 by reason of such participation, except in cases of willful 11 and wanton misconduct. 12 (n) At all stages of the hearing the hearing officer 13 shall require that interpreters be made available by the 14 local school district for persons who are deaf or for persons 15 whose normally spoken language is other than English. 16 (o) Whenever a person refuses to comply with any 17 subpoena issued under this Section, the circuit court of the 18 county in which such hearing is pending, on application of 19 the State Superintendent of Education or the party who 20 requested issuance of the subpoena may compel obedience by 21 attachment proceedings as for contempt, as in a case of 22 disobedience of the requirements of a subpoena from such 23 court for refusal to testify therein. 24 (Source: P.A. 91-784, eff. 6-9-00.) 25 Section 99. Effective date. This Act takes effect upon 26 becoming law.
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