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- What is Special Education?
Special education programs in Illinois are governed by both federal and state law. In most cases, state law and federal law are the same. While state law sometimes provides greater or more specific protections than federal law, it cannot limit the protections offered under federal law.
Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (“FAPE”).
- Who is Eligible for Special Education?
Children with a qualifying disability and need specialized educational services to benefit from their education are entitled to receive special education and related services.
- Autism (which includes (but is not limited to) any Autism Spectrum Disorder that adversely affects a child’s educational performance)
- cognitive disability
- developmental delay (may include children from three through nine years of age)
- emotional disability
- hearing impairment
- multiple disabilities
- orthopedic impairment
- other health impaired
- specific learning disability
- speech or language impairment
- traumatic brain injury
- visual impairment
20 Title 20 United States Code (“U.S.C.”) Sec. 1401(3); Title 34, Code of Federal Regulations (“C.F.R.”) Sec. 300.8; 23 Illinois Administrative Code (“IAC”) Sec. 226.75.
Children between the ages of 3 and 21 (up until the day before the student’s 22nd birthday), may be eligible for special education if he/she requires continued public school educational experiences to help him/her transition and integrate into adult life. 105 Illinois School Code Article 14; 34 C.F.R. Sec. 300.102(a)(3).
A child is not eligible for special education if the main reason for the child’s exceptional needs is a lack of appropriate instruction in reading, a lack of instruction in math, or limited English proficiency. 20 U.S.C. Sec. 1414(b)(5); 34 C.F.R. Sec. 300.306(b).
When determining whether an individual evaluation of a particular child is warranted, Illinois bases its conclusion on factors such as a child’s educational progress, interaction with others, or other functioning in the school environment. 23 IAC 226.100(b).
- What Type of Education are Children with a Qualifying Disability Entitled to?
Under both federal and state law, school districts must provide each student with a disability with a free
appropriate public education (FAPE).
FAPE means special education and related services that:
1. are provided at public expense and without charge,
2. meet appropriate standards, including preschool through secondary education, and
3. conform with an Individual Education Program (IEP).
20 USC 1401(9); 34 CFR 300.17.
Special education means specially designed instruction, at no cost to the parent, to meet the unique
needs of a child with disabilities. Specially-designed instruction is instruction that adapts content,
methodology, or delivery of instruction to address the unique needs of the child that result from the
child’s disability. It seeks to ensure access of the child to the general curriculum, so that he/she can
meet the educational standards within the jurisdiction of the public agency that apply to all children. 34
C.F.R. Sec. 300.38(b)(3). Specialized education can be offered in the mainstream classroom, in a resource
room, at home, or in hospitals or residential programs.
- In Addition to a Free Appropriate Public Education, Are There Other Services a Child with a Disability is Entitled to? What are Related Services?
In addition to being required to provide a FAPE, school districts are required to provide related services, which are necessary to allow a student to benefit from his/her special education program at no cost to
the parents. 23 IAC 226.310. 23 IAC 226.310, 34 C.F.R. 300.34
In Illinois, related services may include any of the following:
· speech-language pathology and audiology services
· interpreting services
· psychological services
· physical and occupational therapy
· recreation, including therapeutic recreation
· early identification and assessment of disabilities in children
· counseling services, including rehabilitation counseling, orientation and mobility
· medical services for diagnostic or evaluation purposes
· school health services and school nurse services
· social work services in schools
· parent counseling and training
- Who Provides Special Education?
The state education agency and the local school district are both responsible for ensuring that appropriate special education services are delivered. In Illinois, the school district provides and maintains appropriate and effective educational programs in order to afford every eligible child with a disability a free appropriate public education. The Illinois Department of Education is ultimately responsible for providing special education services. 20 U.S.C. Sec. 1413(a)(1); 20 U.S.C. Sec. 1412(a)(11); 34 C.F.R. Sec. 300.149; 23 IAC 226.50, 226.700; 105 Ill. Compiled Statutes (“ILCS”) 5/14-1.02.
- Where Should a Child Receive His or Her Special Education and Related Services? What is a “Least Restrictive Environment?
Students with disabilities may be removed from the regular educational environment only when the nature or severity of the disability is such that modifications, supplementary aids and services are insufficient in the general education environment. Special education must be provided in a Least Restrictive Environment. When appropriate children with disabilities must be educated with their non-disabled peers. 20 U.S.C. Sec. 1412 (a)(5)(A); 34 C.F.R. Sec. 300.114.
Illinois follows the federal requirements for Least Restrictive Environment. See 34 C.F.R. 300.320. Decisions regarding where a child should receive services is determined at least once a year at the IEP meeting (as defined below) and are based on the student’s individual needs.
- The first placement option considered for each child with a disability is the general education classroom in the school that the child would attend if he/she did not have a disability. The Team must also consider what extra supports the student needs that will allow the child to be successful in his/her educational placement.
- If the IEP Team decides that a general education class on a full-time basis is not the most appropriate setting for the student, then they can consider other options like resource rooms, special classes, special schools, or home/hospital instruction.
A placement determination based solely upon the category of a child’s disability or on the current configuration of the School District’s service delivery system is prohibited. 34 C.F.R. 300.551; 105 ILCS 5/15-8.02; 23 IAC 226.240.
- How is a Child Determined to be Eligible for Special Education?
Each school district is responsible for actively seeking out and identifying all children from birth through age 21 within the district (and those parentally-placed private school children for whom the district is responsible under 34 C.F.R. 300.131) who may be eligible for special education related services. See 23 IAC 226.100.
Procedures developed to fulfill the child find responsibility shall include:
1. An annual screening of children under the age of 5 to identify those who may need early intervention or special education and related services.
2. Ongoing review of each child’s performance and progress by teachers and other professional personnel, in order to refer children who exhibit problems which interfere with their educational progress and/or adjustment to the educational setting, suggesting that they may be eligible for special education and related services.
3. Ongoing coordination with early intervention programs to identify children from birth through 2 years of age who have or are suspected of having disabilities, in order to ensure that services are provided in accordance with applicable timelines. Each local school district shall participate in transition planning conferences arranged by the designated lead agency under 20 U.S.C. 1437(a)(9) in order to develop a transition plan that enables the public school to implement an Individualized Family
Service Plan (“IFSP”) or IEP no later than the 3rd birthday of each eligible child.
When the responsible school district staff members conclude that an individual evaluation of a particular child is warranted, based on factors such as a child’s educational progress, interaction with others, or other functioning in the school environment, they must conduct a full evaluation.
If an individual wishes to request an evaluation, the following rules apply (See 23 IAC 226.110):
1. Procedures for requesting an initial evaluation must be developed by each school district and made known to all concerned individuals. These procedures shall:
a. Designate the steps taken in making a request for an evaluation,
b. designate the persons to whom a request may be made,
c. identify the information that must be provided,
d. provide any assistance that may be necessary to enable persons making requests
to meet any related requirements established by the district, and
e. identify the process for providing the parents with notice of their rights with
respect to procedural safeguards.
2. A request may be made by a parent of a child or by an employee of a State educational agency, another State agency, a local educational agency, or a community service agency.
3. The school district is responsible for processing the request, deciding what action should be taken, and initiating the necessary procedures. In determining whether a child needs an evaluation, the district may utilize screening data and conduct preliminary procedures such as observation, assessment, consultation with the teacher or other individual making the request, and a conference with the child.
If the district determines not to conduct an evaluation, it must provide written notice to the parents. 23 IAC 226.110.
If the district determines that an evaluation is to be conducted, it shall convene an “IEP Team” of individuals, including the parent, and shall identify the assessments necessary to complete the evaluation.
- The district must provide written notification to the parents of the convening of a team and the plan. 23 IAC 226.110.
- Parents must give consent for assessment. 23 IAC 226.110.
Within 60 school days following the date of written consent from the parent to perform the necessary assessments, the determination of eligibility must be made.23 IAC 226.110.
At the conclusion of the IEP Team meeting, the Team shall prepare a report describing all information relevant to their decision regarding the child’s eligibility.
Within 14 school days after receiving a request for an evaluation, the district must determine whether an evaluation is warranted.
Within 10 school days after the meeting, the school district must provide a copy of the IEP Team’s report to the parent.
The parent is also entitled to receive copies of any evaluation reports upon request. 23 IAC 226.110
If parents disagree with the district’s evaluation, they have the right to obtain an independent educational evaluation (IEE) of their child at public expense.
Their request must be submitted in writing to the local school district superintendent. The district shall provide written notice convening the IEP Team’s meeting within 10 days after receiving the report of an evaluation – conducted at public expense and by an independent evaluator. 23 IAC 226.180.
- Once a child is identified as being eligible for special education, what are the next steps? What is an “IEP” (Individualized Education Program)? Do parents have any say in the IEP?
Once it is determined that a child is eligible for special education, an Individualized Education Plan (IEP) is developed for that child. An IEP outlines in writing the educational program for the student. It is developed at a meeting by a team including the parent, a special education teacher, a regular education teacher, and a district representative or school administrator. Other participants may include the school psychologist, therapists, service providers and the child, if appropriate. 23 IAC 226.210.
Each school district must provide special education and related services to eligible children in accordance with their IEPs. The IEP shall conform to the requirements of 34 C.F.R. 300.320 and must additionally include:
- A statement of measurable annual goals that reflect consideration of the State Goals for Learning and the Illinois Learning Standards (see 23 IAC 1), as well as benchmarks or short-term objectives developed in accordance with the child’s present levels of educational performance.
- A statement regarding the child’s ability to participate in State and district-wide assessments.
- A statement as to the languages or modes of communication in which special education and related services will be provided, if other than or in addition to English.
- A statement as to whether the child requires the provision of services beyond the district’s normal school year in order to receive FAPE (i.e. extended school year services) and, if so, a description of those services that includes their amount, frequency, duration, and location.
If a student with an IEP moves from one school district to another within Illinois, the new district will obtain a copy of the student’s IEP before or at the time the child is presented for enrollment.
- The district may adopt the IEP of the former local school district without an IEP meeting if the parents indicate, either orally or in writing, satisfaction with the current IEP; and the new district determines that the current IEP is appropriate and can be implemented as written. 23 IAC 226.50.
- If the district does not adopt the former IEP and seeks to develop a new IEP for the child, within 10 days after the date of the child’s enrollment the district must provide written notice to the parent, including the proposed date of the IEP meeting. While the new IEP is under development, the district shall implement services comparable to those described in the IEP from the former district. 23 IAC 226.50.
- What if a parent believes the school district is not doing its job (i.e. failing to implement a valid Individualized Education Plan (IEP))?
A parent, individual, organization, or advocate may file a signed, written complaint which alleges that the public school district, cooperative service unit or the state has not complied with special education regulations, or that the educational rights afforded to a student with a disability or his/her parent(s) have been violated.
In order to initiate a formal complaint investigation, the complainant may utilize the Request for State Complaint Investigation form developed by the Illinois State Board of Education. The completed form or written, signed letter of complaint must be submitted to the Illinois State Board of Education and the student’s local school district. (See Illinois State Board of Education, “Request for State Complaint Investigation,” available at http://www.isbe.net/spec-ed/pdfs/complaint_form.pdf.)
The Special Education Support and Services Division may call or write to the parties to the complaint, collect/review relevant documents and materials, provide technical assistance, and apply additional enforcement actions, if necessary. 34 C.F.R. 300.151-300.153 and 23 IAC 226.570.
Within 60 calendar days of the receipt of a formal complaint, the Special Education Support and Services Division will conduct a full investigation relative to the identified allegations.
The Division will issue a written decision which details the investigative process, any findings of compliance or noncompliance, and relevant corrective action requirements, if appropriate. (Illinois State Board of Education, Special Education Support and Services Division, “Special Education Complaint Procedures,” June 2011, available at http://isbe.state.il.us/SPEC-ED/pdfs/complaint_procedures.pdf.)
- What options does a parent have if he/she disagrees with the proposed IEP placement or services? What are the procedures for due process?
If an individual believes that a school district has not complied with the law or that a child’s educational rights have been violated:
- The individual should try to resolve the issues with the local school district through the following steps:
- Communicating directly with the school staff, principal, superintendent, or director of the special education cooperative
- Requesting an IEP meeting to discuss the issues with the IEP Team
- Utilizing the state-sponsored mediation system to resolve the areas of concern.
- A parent may also file a due process complaint. A complaint for due process is typically sufficient if it contains the following:
- The child’s name, address, and school;
- A description of the nature of the problem and related facts;
- A proposed resolution of the problemIf the district believes that the complaint is insufficient, it may file a notice of insufficiency within 15 days of receiving the complaint. The hearing officer must then determine within 5 days whether the complaint is sufficient. 34 C.F.R. § 300.508(d)
The parent and school district must participate in an informal resolution meeting unless both parties agree to waive it.34 C.F.R. § 300.510(a)(3)
This meeting must occur within 15 days of the district’s receipt of the due process complaint, and the meeting must be concluded within 30 days of receipt. 34 C.F.R. § 300.510(a)(3); 34 C.F.R. § 300.510(b)(1)
If the parties have not waived the meeting and the parent refuses to attend, the district may ask the hearing officer to dismiss the complaint. 34 C.F.R. § 300.510(b)(4).
If the parent and district reach an agreement at the resolution meeting, the agreement must be put in writing. Both parties have three days to revoke their agreement, but if hey do not, then the agreement is binding and enforceable. 34 C.F.R. § 300.510(a)(3)
If the parent and district fail to reach an agreement at this meeting, a due process hearing must occur within 30 days of the district’s receipt of the complaint. 34 C.F.R. § 300.510(b)(1).
A parent’s rights at the due process hearing:
- The parent must be notified of free or low-cost legal assistance. 34 C.F.R. § 300.507(b).
- The hearing must be conducted by an impartial hearing officer. 34 C.F.R. § 300.511.
- The child may attend the hearing. 34 C.F.R. § 300.512(c)(1).
- The parent may request that the hearing be closed or open to the public. 34 C.F.R. § 300.512(c)(2); 19 TAC § 89.1185(i).
- The parent has the right to have a copy of the record of the hearing and the decision at no cost. 34 C.F.R. § 300.512(c)(3).
- Parents may present witnesses and cross-examine witnesses presented by the district. 34 C.F.R. § 300.181(n).
Once a complaint has been filed, the student is entitled to “stay put” while the due process hearing is pending. This means the child must remain in his/her current educational program unless the district and parents agree otherwise. 34 C.F.R. § 300.518(a). If the hearing involves a child who is pending expulsion and the hearing officer determines that the child would injure or be injured in his/her current educational setting, the child may be moved to an interim alternative educational setting. 34 C.F.R. § 300.532(b)(2).
After the hearing is completed the final decision must be issued in writing by the hearing officer within 45 days. 34 C.F.R. § 300.510(b)(2). Disagreements with the final decision may be appealed in state or federal civil court.
- Can a special education student be disciplined?
The school district must comply with the provisions of the Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”) when disciplining students. 23 IAC 226.400.
If a special education student’s act of disobedience or misconduct is because of his/her disability, the student cannot be expelled.
If a special education student’s disobedience or misconduct is not because of his/her disability, then the student may be expelled in accordance with the expulsion procedures, except that he/she shall continue to receive educational services as provided in IDEA during the period of expulsion.
If the student’s act may subject him/her to expulsion from school or more than 10 cumulative days of suspension during any one school year, the School District will convene an IEP meeting to review the student’s behavioral intervention plan. If a behavioral intervention plan has not yet been developed, an IEP meeting will be convened to develop one. 23 IAC 226.400.
Although students with disabilities are subject to the same suspension rules as nondisabled students, suspensions of students with disabilities cannot exceed 10 consecutive days without a manifestation determination review. 20 U.S.C. Sec. 1415(k)(1)(B).
Suspensions for more than 10 consecutive school days and expulsions are considered “changes of placement,” and schools cannot change special education students’ placements without parental consent, or without a manifestation determination meeting. However, an exception can be made for certain behaviors such as where the student is involved with drugs, weapons or presents a danger to himself or others. 20 U.S.C. Sec 1415(k)(1)(G); 23 IAC 226.655. In such circumstances, the district may place the student in an interim alternative setting for up to 45 days. 20 U.S.C. Sec. 1415(k), 23 IAC 226.655.
The manifestation determination meeting is a meeting of the relevant members of the IEP Team to determine whether a child with a disability may be expelled or have his placement changed for more than 10 consecutive school days for misconduct. It must be held within 10 days of the school’s decision to expel the student or change his placement.
At the manifestation determination meeting, the IEP Team must consider two issues:
1. was the behavior caused by, or did it have a direct and substantial relationship to, the child’s disability, and
2. was the behavior the direct result of the school’s failure to implement the IEP?
If the Team answers yes to either question, the child cannot be expelled and a placement change would require the consent of the parent or a hearing officer’s order.
If the IEP Team answers yes to the first question, that is, if the Team determines that the behavior is a manifestation of the child’s disability, the child must return to his original placement, unless the parents and school agree otherwise, or the child has not served a full 10 school day suspension imposed for the misconduct. In the case that the suspension has not been served fully, the child may be required to serve the remaining days of his/her suspension. The school must also do a behavioral assessment for the student or modify the student’s existing behavior plan to address the behavior.
If the IEP Team answers no to the first question, that is, if the Team denies that the behavior is a manifestation of the child’s disability, the parent may appeal by requesting a due process hearing. The appeal should be resolved within 30 days, and in the interim, the child remains in the interim educational setting. 20 U.S.C. Sec. 1415(k (1)(F); 34 C.F.R. Sec. 300.530(f).
Students with disabilities must continue to receive educational services during any period of suspension beyond 10 days, during any period of interim placement, and during any period of expulsion. 20 U.S.C. Sec. 1412(a)(1) and 1415(k)(1)(D); 34 C.F.R. Sec. 300.530(d)(1). The services a child receives under these circumstances must enable him/her to continue to participate in the general curriculum and to continue to progress toward meeting his IEP goals and to receive needed behavioral assessments and services. 20 U.S.C. Sec. 1415(k)(1)(D); 34 C.F.R. Sec. 300.530(d)(1)(i)(ii).
- Can parents see the school records of their special education child?
People who have the right to inspect and copy all permanent and temporary school records of a student:
- The student him/herself
- The parent(s) of the student
- Any person specifically designated as a representative by a parent
Note: No person who is prohibited by an order of protection from inspecting or obtaining school records of a student in accordance with the Illinois Domestic Violence Act of 1986 shall have any right of access to, or inspection of, the school records of that student.105 ILCS 10/5(a).
A parent’s or student’s request to inspect and copy records, or to allow a specifically designated representative to inspect and copy records, must be granted within a reasonable time, and no later than 15 school days after the official records custodian receives the request. 105 ILCS 10/5(c).
Whenever access is granted, at the option of either the parent or the school, a qualified professional may be present to interpret the information contained in the student temporary record. The professional may be a psychologist, counselor, or other advisor, and who may be an employee of the school or employed by the parent. 105 ILCS 10/5(b).
Illinois State Board of Education, Special Education and Support Services, “Educational Rights and Responsibilities/ Understanding Special Education in Illinois”, June 2009, available at http://www.isbe.net/spec-ed/pdfs/parent_guide_english.pdf.