State of Illinois
91st General Assembly
Public Acts

[ Home ]  [ ILCS ] [ Search ] [ Bottom ]
 [ Other General Assemblies ]

Public Act 91-0784

SB1447 Enrolled                                LRB9107779NTsb

    AN ACT to amend  the  School  Code  by  changing  Section
14-8.02.

    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 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 Persons  shall  be
assigned  as surrogate parents 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.  88-45;  89-397,  eff.  8-20-95;  89-425,  eff.
6-1-96; 89-626, eff. 8-9-96.)

    Section  99.  Effective date.  This Act takes effect upon
becoming law.

[ Top ]