Public Act 93-0282
SB566 Enrolled LRB093 10775 NHT 11188 b
AN ACT concerning education.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The School Code is amended by changing
Section 14-8.02 as follows:
(105 ILCS 5/14-8.02) (from Ch. 122, par. 14-8.02)
Sec. 14-8.02. Identification, Evaluation and Placement
of Children.
(a) The State Board of Education shall make rules under
which local school boards shall determine the eligibility of
children to receive special education. Such rules shall
ensure that a free appropriate public education be available
to all children with disabilities as defined in Section
14-1.02. The State Board of Education shall require local
school districts to administer non-discriminatory procedures
or tests to limited English proficiency students coming from
homes in which a language other than English is used to
determine their eligibility to receive special education.
The placement of low English proficiency students in special
education programs and facilities shall be made in accordance
with the test results reflecting the student's linguistic,
cultural and special education needs. For purposes of
determining the eligibility of children the State Board of
Education shall include in the rules definitions of "case
study", "staff conference", "individualized educational
program", and "qualified specialist" appropriate to each
category of children with disabilities as defined in this
Article. For purposes of determining the eligibility of
children from homes in which a language other than English is
used, the State Board of Education, no later than September
1, 1993, shall include in the rules definitions for
"qualified bilingual specialists" and "linguistically and
culturally appropriate individualized educational programs".
In this Section, "parent" includes a foster parent.
(b) No child shall be eligible for special education
facilities except with a carefully completed case study fully
reviewed by professional personnel in a multidisciplinary
staff conference and only upon the recommendation of
qualified specialists or a qualified bilingual specialist, if
available. At the conclusion of the multidisciplinary staff
conference, the parent or guardian of the child shall be
given a copy of the multidisciplinary conference summary
report and recommendations, which includes options
considered, and be informed of their right to obtain an
independent educational evaluation if they disagree with the
evaluation findings conducted or obtained by the school
district. If the school district's evaluation is shown to be
inappropriate, the school district shall reimburse the parent
for the cost of the independent evaluation. The State Board
of Education shall, with advice from the State Advisory
Council on Education of Children with Disabilities on the
inclusion of specific independent educational evaluators,
prepare a list of suggested independent educational
evaluators. The State Board of Education shall include on the
list clinical psychologists licensed pursuant to the Clinical
Psychologist Licensing Act. Such psychologists shall not be
paid fees in excess of the amount that would be received by a
school psychologist for performing the same services. The
State Board of Education shall supply school districts with
such list and make the list available to parents at their
request. School districts shall make the list available to
parents at the time they are informed of their right to
obtain an independent educational evaluation. However, the
school district may initiate an impartial due process hearing
under this Section within 5 days of any written parent or
guardian request for an independent educational evaluation to
show that its evaluation is appropriate. If the final
decision is that the evaluation is appropriate, the parent
still has a right to an independent educational evaluation,
but not at public expense. An independent educational
evaluation at public expense must be completed within 30 days
of a parent or guardian written request unless the school
district initiates an impartial due process hearing or the
parent or guardian or school district offers reasonable
grounds to show that such 30 day time period should be
extended. If the due process hearing decision indicates that
the parent or guardian is entitled to an independent
educational evaluation, it must be completed within 30 days
of the decision unless the parent or guardian or the school
district offers reasonable grounds to show that such 30 day
period should be extended. If a parent disagrees with the
summary report or recommendations of the multidisciplinary
conference or the findings of any educational evaluation
which results therefrom, the school district shall not
proceed with a placement based upon such evaluation and the
child shall remain in his or her regular classroom setting.
No child shall be eligible for admission to a special class
for the educable mentally disabled or for the trainable
mentally disabled except with a psychological evaluation and
recommendation by a school psychologist. Consent shall be
obtained from the parent or guardian of a child before any
evaluation is conducted. If consent is not given by the
parent or guardian or if the parent or guardian disagrees
with the findings of the evaluation, then the school district
may initiate an impartial due process hearing under this
Section. The school district may evaluate the child if that
is the decision resulting from the impartial due process
hearing and the decision is not appealed or if the decision
is affirmed on appeal. The determination of eligibility shall
be made within 60 school days from the date of referral by
school authorities for evaluation by the district or date of
application for admittance by the parent or guardian of the
child. In those instances when students are referred for
evaluation with fewer than 60 pupil attendance days left in
the school year, the eligibility determination shall be made
prior to the first day of the following school year. After a
child has been determined to be eligible for a special
education class, such child must be placed in the appropriate
program pursuant to the individualized educational program by
or no later than the beginning of the next school semester.
The appropriate program pursuant to the individualized
educational program of students whose native tongue is a
language other than English shall reflect the special
education, cultural and linguistic needs. No later than
September 1, 1993, the State Board of Education shall
establish standards for the development, implementation and
monitoring of appropriate bilingual special individualized
educational programs. The State Board of Education shall
further incorporate appropriate monitoring procedures to
verify implementation of these standards. The district shall
indicate to the parent or guardian and the State Board of
Education the nature of the services the child will receive
for the regular school term while waiting placement in the
appropriate special education class.
If the child is deaf, hard of hearing, blind, or visually
impaired and he or she might be eligible to receive services
from the Illinois School for the Deaf or the Illinois School
for the Visually Impaired, the school district shall notify
the parents or guardian, in writing, of the existence of
these schools and the services they provide. This
notification shall include without limitation information on
school services, school admissions criteria, and school
contact information.
If the student may be eligible to participate in the
Home-Based Support Services Program for Mentally Disabled
Adults authorized under the Developmental Disability and
Mental Disability Services Act upon becoming an adult, the
student's individualized education program shall include
plans for (i) determining the student's eligibility for those
home-based services, (ii) enrolling the student in the
program of home-based services, and (iii) developing a plan
for the student's most effective use of the home-based
services after the student becomes an adult and no longer
receives special educational services under this Article.
The plans developed under this paragraph shall include
specific actions to be taken by specified individuals,
agencies, or officials.
(c) In the development of the individualized education
program for a student who is functionally blind, it shall be
presumed that proficiency in Braille reading and writing is
essential for the student's satisfactory educational
progress. For purposes of this subsection, the State Board
of Education shall determine the criteria for a student to be
classified as functionally blind. Students who are not
currently identified as functionally blind who are also
entitled to Braille instruction include: (i) those whose
vision loss is so severe that they are unable to read and
write at a level comparable to their peers solely through the
use of vision, and (ii) those who show evidence of
progressive vision loss that may result in functional
blindness. Each student who is functionally blind shall be
entitled to Braille reading and writing instruction that is
sufficient to enable the student to communicate with the same
level of proficiency as other students of comparable ability.
Instruction should be provided to the extent that the student
is physically and cognitively able to use Braille. Braille
instruction may be used in combination with other special
education services appropriate to the student's educational
needs. The assessment of each student who is functionally
blind for the purpose of developing the student's
individualized education program shall include documentation
of the student's strengths and weaknesses in Braille skills.
Each person assisting in the development of the
individualized education program for a student who is
functionally blind shall receive information describing the
benefits of Braille instruction. The individualized
education program for each student who is functionally blind
shall specify the appropriate learning medium or media based
on the assessment report.
(d) To the maximum extent appropriate, the placement
shall provide the child with the opportunity to be educated
with children who are not disabled; provided that children
with disabilities who are recommended to be placed into
regular education classrooms are provided with supplementary
services to assist the children with disabilities to benefit
from the regular classroom instruction and are included on
the teacher's regular education class register. Subject to
the limitation of the preceding sentence, placement in
special classes, separate schools or other removal of the
disabled child from the regular educational environment shall
occur only when the nature of the severity of the disability
is such that education in the regular classes with the use of
supplementary aids and services cannot be achieved
satisfactorily. The placement of limited English proficiency
students with disabilities shall be in non-restrictive
environments which provide for integration with non-disabled
peers in bilingual classrooms. By January 1993 and annually
thereafter, school districts shall report data on students
from non-English speaking backgrounds receiving special
education and related services in public and private
facilities as prescribed in Section 2-3.30. If there is a
disagreement between parties involved regarding the special
education placement of any child, either in-state or
out-of-state, the placement is subject to impartial due
process procedures described in Article 10 of the Rules and
Regulations to Govern the Administration and Operation of
Special Education.
(e) No child who comes from a home in which a language
other than English is the principal language used may be
assigned to any class or program under this Article until he
has been given, in the principal language used by the child
and used in his home, tests reasonably related to his
cultural environment. All testing and evaluation materials
and procedures utilized for evaluation and placement shall
not be linguistically, racially or culturally discriminatory.
(f) Nothing in this Article shall be construed to
require any child to undergo any physical examination or
medical treatment whose parents or guardian object thereto on
the grounds that such examination or treatment conflicts with
his religious beliefs.
(g) School boards or their designee shall provide to the
parents or guardian of a child prior written notice of any
decision (a) proposing to initiate or change, or (b) refusing
to initiate or change, the identification, evaluation, or
educational placement of the child or the provision of a free
appropriate public education to their child, and the reasons
therefor. Such written notification shall also inform the
parent or guardian of the opportunity to present complaints
with respect to any matter relating to the educational
placement of the student, or the provision of a free
appropriate public education and to have an impartial due
process hearing on the complaint. The notice shall inform
the parents or guardian in the parents' or guardian's native
language, unless it is clearly not feasible to do so, of
their rights and all procedures available pursuant to this
Act and federal law 94-142; it shall be the responsibility of
the State Superintendent to develop uniform notices setting
forth the procedures available under this Act and federal law
94-142 to be used by all school boards. The notice shall
also inform the parents or guardian of the availability upon
request of a list of free or low-cost legal and other
relevant services available locally to assist parents or
guardians in initiating an impartial due process hearing.
Any parent or guardian who is deaf, or does not normally
communicate using spoken English, who participates in a
meeting with a representative of a local educational agency
for the purposes of developing an individualized educational
program shall be entitled to the services of an interpreter.
(h) A Level I due process hearing, hereinafter referred
as the hearing, shall be conducted upon the request of the
parents or guardian or local school board by an impartial
hearing officer appointed as follows: If the request is made
through the local school district, within 5 school days of
receipt of the request, the local school district shall
forward the request to the State Superintendent. Within 5
days after receiving this request of hearing, the State Board
of Education shall provide a list of 5 prospective, impartial
hearing officers. The State Board of Education, by rule or
regulation, shall establish criteria for determining which
persons can be included on such a list of prospective hearing
officers. No one on the list may be a resident of the school
district. No more than 2 of the 5 prospective hearing
officers shall be gainfully employed by or administratively
connected with any school district, or any joint agreement or
cooperative program in which school districts participate.
In addition, no more than 2 of the 5 prospective hearing
officers shall be gainfully employed by or administratively
connected with private providers of special education
services. The State Board of Education shall actively
recruit applicants for hearing officer positions. The board
and the parents or guardian or their legal representatives
within 5 days shall alternately strike one name from the list
until only one name remains. The parents or guardian shall
have the right to proceed first with the striking. The per
diem allowance for the hearing officer shall be established
and paid by the State Board of Education. The hearing shall
be closed to the public except that the parents or guardian
may require that the hearing be public. The hearing officer
shall not be an employee of the school district, an employee
in any joint agreement or cooperative program in which the
district participates, or any other agency or organization
that is directly involved in the diagnosis, education or care
of the student or the State Board of Education. All impartial
hearing officers shall be adequately trained in federal and
state law, rules and regulations and case law regarding
special education. The State Board of Education shall use
resources from within and outside the agency for the purposes
of conducting this training. The impartial hearing officer
shall have the authority to require additional information or
evidence where he or she deems it necessary to make a
complete record and may order an independent evaluation of
the child, the cost of said evaluation to be paid by the
local school district. Such hearing shall not be considered
adversary in nature, but shall be directed toward bringing
out all facts necessary for the impartial hearing officer to
render an informed decision. The State Board of Education
shall, with the advice and approval of the Advisory Council
on Education of Children with Disabilities, promulgate rules
and regulations to establish the qualifications of the
hearing officers and the rules and procedure for such
hearings. The school district shall present evidence that
the special education needs of the child have been
appropriately identified and that the special education
program and related services proposed to meet the needs of
the child are adequate, appropriate and available. Any party
to the hearing shall have the right to: (a) be represented by
counsel and be accompanied and advised by individuals with
special knowledge or training with respect to the problems of
children with disabilities at the party's own expense; (b)
present evidence and confront and cross-examine witnesses;
(c) prohibit the introduction of any evidence at the hearing
that has not been disclosed to that party at least 5 days
before the hearing; (d) obtain a written or electronic
verbatim record of the hearing; (e) obtain written findings
of fact and a written decision. The student shall be allowed
to attend the hearing unless the hearing officer finds that
attendance is not in the child's best interest or detrimental
to the child. The hearing officer shall specify in the
findings the reasons for denying attendance by the student.
The hearing officer, or the State Superintendent in
connection with State level hearings, may subpoena and compel
the attendance of witnesses and the production of evidence
reasonably necessary to the resolution of the hearing. The
subpoena may be issued upon request of any party. The State
Board of Education and the school board shall share equally
the costs of providing a written or electronic record of the
proceedings. Such record shall be transcribed and transmitted
to the State Superintendent no later than 10 days after
receipt of notice of appeal. The hearing officer shall
render a decision and shall submit a copy of the findings of
fact and decision to the parent or guardian and to the local
school board within 10 school days after the conclusion of
the hearing. The hearing officer may continue the hearing in
order to obtain additional information, and, at the
conclusion of the hearing, shall issue a decision based on
the record which specifies the special education and related
services which shall be provided to the child in accordance
with the child's needs. The hearing officer's decision shall
be binding upon the local school board and the parent unless
such decision is appealed pursuant to the provisions of this
Section.
(i) Any party aggrieved by the decision may appeal the
hearing officer's decision to the State Board of Education
and shall serve copies of the notice of such appeal on the
State Superintendent and on all other parties. The review
referred to in this Section shall be known as the Level II
review. The State Board of Education shall provide a list of
5 prospective, impartial reviewing officers. No reviewing
officer shall be an employee of the State Board of Education
or gainfully employed by or administratively connected with
the school district, joint agreement or cooperative program
which is a party to this review. Each person on the list
shall be accredited by a national arbitration organization.
The per diem allowance for the review officers shall be paid
by the State Board of Education and may not exceed $250. All
reviewing officers on the list provided by the State Board of
Education shall be trained in federal and state law, rules
and regulations and case law regarding special education.
The State Board of Education shall use resources from within
and outside the agency for the purposes of conducting this
training. No one on the list may be a resident of the school
district. The board and the parents or guardian or other
legal representatives within 5 days shall alternately strike
one name from the list until only one name remains. The
parents or guardian shall have the right to proceed first
with the striking. The reviewing officer so selected shall
conduct an impartial review of the Level I hearing and may
issue subpoenas requiring the attendance of witnesses at such
review. The parties to the appeal shall be afforded the
opportunity to present oral argument and additional evidence
at the review. Upon completion of the review the reviewing
officer shall render a decision and shall provide a copy of
the decision to all parties.
(j) No later than 30 days after receipt of notice of
appeal, a final decision shall be reached and a copy mailed
to each of the parties. A reviewing officer may grant
specific extensions of time beyond the 30-day deadline at the
request of either party. If a Level II hearing is convened
the final decision of a Level II hearing officer shall occur
no more than 30 days following receipt of a notice of appeal,
unless an extension of time is granted by the hearing officer
at the request of either party. The State Board of Education
shall establish rules and regulations delineating the
standards to be used in determining whether the reviewing
officer shall grant such extensions. Each hearing and each
review involving oral argument must be conducted at a time
and place which are reasonably convenient to the parents and
the child involved.
(k) Any party aggrieved by the decision of the reviewing
officer, including the parent or guardian, shall have the
right to bring a civil action with respect to the complaint
presented pursuant to this Section, which action may be
brought in any circuit court of competent jurisdiction within
120 days after a copy of the decision is mailed to the party
as provided in subsection (j). The civil action provided
above shall not be exclusive of any rights or causes of
action otherwise available. The commencement of a civil
action under subsection (k) of this Section shall operate as
a supersedeas. In any action brought under this Section the
court shall receive the records of the administrative
proceedings, shall hear additional evidence at the request of
a party, and basing its decision on the preponderance of the
evidence shall grant such relief as the court determines is
appropriate. In any instance where a school district
willfully disregards applicable regulations or statutes
regarding a child covered by this Article, and which
disregard has been detrimental to the child, the school
district shall be liable for any reasonable attorney's fees
incurred by the parent or guardian in connection with
proceedings under this Section.
(l) During the pendency of any proceedings conducted
pursuant to this Section, unless the State Superintendent of
Education, or the school district and the parents or guardian
otherwise agree, the student shall remain in the then current
educational placement of such student, or if applying for
initial admission to the school district, shall, with the
consent of the parents or guardian, be placed in the school
district program until all such proceedings have been
completed. The costs for any special education and related
services or placement incurred following 60 school days after
the initial request for evaluation shall be borne by the
school district if such services or placement are in
accordance with the final determination as to the special
education and related services or placement which must be
provided to the child, provided however that in said 60 day
period there have been no delays caused by the child's parent
or guardian.
(m) Whenever (i) the parents or guardian of a child of
the type described in Section 14-1.02 are not known or are
unavailable or (ii) the child is a ward of the State residing
in a residential facility, a person shall be assigned to
serve as surrogate parent for the child in matters relating
to the identification, evaluation, and educational placement
of the child and the provision of a free appropriate public
education to the child. Surrogate parents shall be assigned
by the State Superintendent of Education. The State Board of
Education shall promulgate rules and regulations establishing
qualifications of such persons and their responsibilities and
the procedures to be followed in making such assignments.
Such surrogate parents shall not be employees of the school
district, an agency created by joint agreement under Section
10-22.31, an agency involved in the education or care of the
student, or the State Board of Education. For a child who is
a ward of the State residing in a residential facility, the
surrogate parent may be an employee of a nonpublic agency
that provides only non-educational care. Services of any
person assigned as surrogate parent shall terminate if the
parent or guardian becomes available unless otherwise
requested by the parents or guardian. The assignment of a
person as surrogate parent at no time supersedes, terminates,
or suspends the parents' or guardian's legal authority
relative to the child. Any person participating in good
faith as surrogate parent on behalf of the child before
school officials or a hearing officer shall have immunity
from civil or criminal liability that otherwise might result
by reason of such participation, except in cases of willful
and wanton misconduct.
(n) At all stages of the hearing the hearing officer
shall require that interpreters be made available by the
local school district for persons who are deaf or for persons
whose normally spoken language is other than English.
(o) Whenever a person refuses to comply with any
subpoena issued under this Section, the circuit court of the
county in which such hearing is pending, on application of
the State Superintendent of Education or the party who
requested issuance of the subpoena may compel obedience by
attachment proceedings as for contempt, as in a case of
disobedience of the requirements of a subpoena from such
court for refusal to testify therein.
(Source: P.A. 91-784, eff. 6-9-00.)
Section 90. The State Mandates Act is amended by adding
Section 8.27 as follows:
(30 ILCS 805/8.27 new)
Sec. 8.27. Exempt mandate. Notwithstanding Sections 6
and 8 of this Act, no reimbursement by the State is required
for the implementation of any mandate created by this
amendatory Act of the 93rd General Assembly.
Section 99. Effective date. This Act takes effect upon
becoming law.