MEMO

FUNDAMENTALS OF EDUCATION

LAW: AN ATTORNEY’S ROLE IN

DISCIPLINE PROCEEDINGS, IEPS,

AND OBTAINING OTHER SERVICES

Presented By:

Neal E. Takiff

3000 Dundee Road Suite 303 Northbrook, Illinois 60062

847.564.8662 Fax: 847.564.8419 www.wct-law.com

ILLINOIS STATE BAR ASSOCIATION

OCTOBER 4, 2013

3:50 – 5 P.M.

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1. School Discipline of Non-Disabled Students 3

2. School Student Records Act 14

3. School Records Release 21

4. Mental Health Release 24

5. Suspension, Expulsion and Discipline Under the IDEA 27

6. Discipline and Manifestation Flowchart 39

7. Special Education in a Nutshell 41

8. Illinois State Board of Education Forms 47

a. Consent for Initial Evaluation 48

b. Consent for Services 50

c. Blank IEP 51

d. Consent to Amend IEP 73

9. Observation of Programs by Parents and Experts 74

10. Response to Intervention (“RTI”) and its Legal Implications 79

11. Special Education: The Rights & Responsibilities of Parents (PowerPoint) 84

Table of Contents

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SCHOOL DISCIPLINE:

SUSPENSIONS &

EXPULSIONS OF

NON-DISABLED

STUDENTS

Whitted Cleary & Takiff LLC 3000 Dundee Road, Suite #303

Northbrook, Illinois 60062 847.564.8662

Fax: 847.564.8419 www.wct-law.com

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INTRODUCTION

A study conducted by the Illinois Criminal Justice Information Authority regarding bal-

anced and restorative justice (“BARJ”) revealed that according to the Illinois State Board of Ed-

ucation (“ISBE”), between 1991 and 2007, Illinois public school suspension rates increased 56

percent and expulsion rates more than doubled. The same study noted that in Chicago Public

Schools (“CPS"), 77 percent of school arrests were of black students, when they constituted 50

percent of the CPS student population. The increase in suspensions and expulsions, and its dis-

proportionate usage based on race, can mostly be attributed to the increasing trend towards

zero tolerance policies that are not applied consistently to all students. The Gun Free Schools

Act of 1994 led to a national zero tolerance policy authorizing expulsion for no less than one

academic year for bringing a weapon to school. However, since then school districts have ex-

panded zero tolerance to include nonviolent student misbehavior.1 School discipline is an area

in which school officials have broad discretion. In Illinois, courts have been reluctant to over-

turn decisions to suspend or expel students.2 The following is an attempt to review laws and

case law related to the suspension or expulsion of non-disabled students.

I. SUSPENSIONS

In Illinois, a suspension is defined as the removal of a student from school for a period

of 10 consecutive school days or less for a serious act of misconduct.3 However, where a stu-

dent is suspended due to gross disobedience or misconduct on a school bus, the suspension

may be more than 10 days in length for safety reasons.4 Illinois state law does not put an up-ward limit on the cumulative number of days that a non-disabled student may be suspended

during the school year; the only limitation is the maximum of 10 days per suspension.

It is important to note that Section 10-22.6 of the Illinois School Code was not intended

to be a self-executing regulation of student conduct; rather, it is a “grant of power” to local

school boards.5 Section 10-22.6 does not prohibit specific acts or omissions which may be pe-

nalized by suspension, but serves as a guide to school boards, suggesting that to be grounds for

suspension or expulsion, the student’s disobedience or misconduct must be “gross”.6

The Supreme Court in Goss v. Lopez, 419 U.S. 565 (1975), recognized that, “[s]tudents

facing temporary suspension have interests qualifying for protection of the Due Process Clause,

and due process requires, in connection with a suspension of 10 days or less, that the student

be given oral or written notice of the charges against him and, if he denies them, an explanation

of the evidence the authorities have, and an opportunity to present his side of the story.”7 In

DEFINITION: Gross disobedience or misconduct that may lead to suspension or

expulsion of a student shall include any activity or behavior which might reasonably

lead school authorities to forecast substantial disruption or material interference with

school activities or which in fact is substantial disruption or material interference with

school activities. 105 ILCS 5/10-22.6.

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Goss, the Court set out the minimum due process required for the suspension of students from

school for 10 days or less, which was subsequently incorporated in 105 ILCS 5/10-22.6(b) by

the Illinois legislature. According to Section 10-22.6(b), when a child is suspended from school,

the School must immediately provide the parent or guardian with oral or written notice of the

suspension, which includes: (1) the reason for the suspension, (2) the length of the suspension,

and (3) notice of a parent or guardian’s right to review the school’s decision to suspend their

child.

If a child is suspended, a parent or guardian may appeal the suspension by requesting a

meeting (or “review”) with school officials. At this review, a parent and his/her child may talk

with school officials about the suspension and reasons that the student should not be suspend-

ed. A school board official or hearing officer appointed by the school board must review the

action of the suspending school official. The hearing officer shall then report to the school

board a written summary of the evidence heard at the review.8 Subsequently, the school board

may take action as it finds appropriate. While the reality may be that by the time a review of

the suspension is scheduled, the period of the suspension will have already been served by the

child, it may nevertheless be important to appeal a child’s suspension. Parents who successfully

CHECKLIST: A student faced with a suspension must be afforded the following due

process:

1. Oral or written notice of the charges and evidence supporting the charges;

2. If the charges are denied, a student must be given an opportunity to explain his

version of the events to the suspending school official;

3. The suspension may not exceed 10 days, unless for safety reasons due to miscon-

duct on a school bus;

4. To have his parents/guardian immediately receive a report of the suspension along

with a full statement of the reasons for it and a notice of right to review;

5. If a hearing is requested, the parent/guardian may appear and may discuss the

suspension with the board or its hearing officer;

6. The school board or hearing officer appointed by it must review the action of the

suspending school official;

7. The hearing officer shall report to the board a written summary of the evidence

heard at the meeting;

8. Any decision rendered must be based upon the evidence; and

9. With respect to any suspension invoked, the student has a right to be informed of

its beginning and ending dates.

10. The Department of Human Services shall be invited to send a representative to

consult with the school board at the hearing whenever there is evidence that men-

tal illness may be the cause for the suspension.

105 ILCS 5/10-22.6(b)-(c).

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appeal a suspension can effectually remove that suspension from their child’s school record,

ultimately reducing the likelihood that the child will be expelled for subsequent misconduct, and

eliminating the stain on the student record that colleges may have considered.

Once it is decided that a student will be suspended by the school board, a par-

ent/guardian may ask for schoolwork for their child during that suspension. The Student Code

of Conduct for CPS states that school principals shall make sure that suspended students re-

ceive homework assignments during their suspension and that those students’ grades will not

be lowered if the work is completed satisfactorily.9 However, not all districts allow make-up

work that can count towards a student’s grade. Parents should check their local school polices

for guidance.

II. EXPULSIONS

An expulsion is defined by the Illinois School Code as a removal of a student from

school for gross disobedience or misconduct for a period of time ranging from in excess of 10

days to a definite period of time not to exceed two school years.10 The Supreme Court in

Goss, as previously cited, noted that in the instance of expulsion, more formal due process pro-

cedures are required since an expulsion involves more serious consequences than a suspen-

sion.11 The Illinois legislature provides for this increase in the due process required in 105 ILCS

5/10-22.6(a). As a result, in Illinois, a student may be expelled only after his/her parent has

been requested to appear at a meeting with the school board, or with a hearing officer appoint-

ed by the school board, to discuss their child’s behavior. The request to appear shall be made by registered or certified mail and state the time, place, and purpose of the meeting. The state

statute requires the hearing officer to report to the board a written summary of the evidence

heard at the hearing, from which the board may take action as it sees fit. It is the non-delegable

authority of the school board to make the final decision regarding the expulsion of a student;

though, the school board may consider recommendations from administrators and may appoint

a hearing officer to conduct the expulsion hearing.12

If the student or parent chooses, they may have an attorney represent the student at

the expulsion hearing at their own expense. This may help to safeguard the student’s due pro-

cess rights and guarantee that proper procedures are being effectuated at the hearing.13 Due

process afforded to students facing expulsion does not require the presence of a stenographer

at the hearing to provide a transcript, so long as there is some other means to allow for ade-

quate review.14 Parents/guardians attending the hearing may be well advised to bring their own

tape recorders or to retain a court reporter. It should also be noted, that while a school board

is considered a public body, student disciplinary hearings are typically closed to the public.15 If

after the hearing, the school board decides to expel the child, that decision may be appealed by

filing in state court. A parent/guardian should consult an attorney about how to file such an ap-

peal.

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Generally, school districts are given much deference in making decisions regarding disci-

plinary actions. Illinois courts will rarely overturn a school board’s decision to suspend or expel

a student. Where no deprivation of a constitutional right was alleged, a school board’s decision

to expel or suspend a student will be overturned only if it is “arbitrary, unreasonable, capricious,

or oppressive.”16 In making this determination, Illinois courts will consider the following factors

before overturning a school board’s decision: (1) the egregiousness of the student’s conduct,

(2) the history or record of the student’s past conduct, (3) the likelihood that such conduct will

affect the delivery of educational services to other students, (4) the severity of the punishment,

and (5) the interest of the child.17

III. PROHIBITED BEHAVIORS, ZERO TOLERANCE MISCONDUCT AND

CRIMINAL PENALTIES

Certain misconduct will not only lead to the automatic expulsion of a student, but may

also result in criminal penalties. The following is a review of zero tolerance policies for certain

prohibited behaviors on school grounds.

CHECKLIST: Student faced with expulsion must be provided with the following due

process:

1. Expulsion shall take place only after the parent/guardian has been requested to

appear at a meeting of the school board, or with a hearing officer appointed by it,

to discuss the student’s behavior. A student may be suspended from school pend-

ing this meeting but must be provided the due process required to support a sus-

pension;

2. Notice of hearing must be sent to the parents/guardian by registered or certified

mail stating the time, place and purpose of the hearing;

3. The school board or its appointed hearing officer must provide a full statement of

the reason for the proposed expulsion at the hearing and must provide notice of

the date on which the proposed expulsion is to become effective;

4. Student is entitled to consult with counsel at the student’s expense (this right is to

be distinguished from the right to be represented by counsel at the hearing);

5. Adequate time must be given to prepare a defense;

6. Student must be given an opportunity to call and examine witnesses, to cross-

examine opposing witnesses, and introduce evidence; and

7. The decision to expel or not to expel must be made by the school board and must

be based upon the evidence presented.

8. The Department of Human Services shall be invited to send a representative to consult with the school board at the hearing whenever there is evidence that men-

tal illness may be the cause for the expulsion.

105 ILCS 5/10-22.6(a) & (c).

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Weapons

Under the Gun-Free Schools Act, a student who brings a weapon to school, any school

sponsored activity, or an event that bears a reasonable relationship to school shall be expelled

for a period of not less than one year, unless the expulsion period is modified by the superinten-

dent, whose decision may be modified by the school board on a case-by-case basis.18 Therefore,

it is important to note that even under the Gun-Free School Act, there are no requirements

for “zero tolerance.” Under Illinois School Code, the school board may expel a student for a

definite period of time not to exceed two calendar years, as determined on a case-by-case basis.19

This type of behavior may also range from Class A misdemeanor to Class X felony for unlawful

use of weapons on school grounds.20

Drugs

While a federal statute does not exist for the automatic expulsion of student who pos-

sesses, transfers, or uses drugs on school grounds, such behavior will lead to some form of dis-

ciplinary action by the school board and shall be reported to enforcement authorities.

As with the possession, use, or transfer of a firearm, under Illinois law, the school prin-

cipal or his/her designee shall immediately notify the local law enforcement agency upon receipt

PRACTICAL APPLICATION OF THE LAW: For purposes of this statute, the term

“school grounds” includes the real property comprising any school, any conveyance

owned, leased, or contracted by a school to transport students to or from school or a

school-related activity, or any public way within 1,000 feet of the real property com-

prising any school. 105 ILCS 5/10-27.1A(d).

PRACTICAL APPLICATION OF THE LAW: A “weapon” is defined as a “firearm,” which

for the purpose of the School Code, means any gun, rifle, shotgun, or weapon as defined

by Section 921 of Title 18 of the United States Code, Section 1.1. of the Firearm Own-

ers Identification Card Act (430 ILCS 65/1.1), or as defined by Section 24-1 of the Crim-

inal Code of 1961 (720 ILCS 5/24-1). For the purposes of the School Code, it also in-

cludes a knife, brass knuckles or other knuckle weapon regardless of its composition, a

billy club, or any other object if used or attempted to be used to cause bodily harm, in-

cluding “look alikes” of any firearm. 105 ILCS 5/10-22.6(d)(1)-(2).

PRACTICAL APPLICATION OF THE LAW: “Drugs” is defined as cannabis as defined in

the Cannabis Control Act (720 ILCS 550/3) or narcotic drug as defined in the Controlled

Substances Act (720 ILC 570/102).

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of verbal, written, or electronic notification from any school official, including a teacher, guid-

ance counselor, or support staff, that they observed a person in possession of a firearm or veri-

fied an incident involving drugs on school grounds.21 If the individual possessing the firearm is a

student, the principal or his/her designee must also immediately notify that student’s parent or

guardian.22

IV. ATTENDING ANOTHER SCHOOL DURING THE TERM OF THE

SUSPENSION OR EXPULSION

It is apparent that when a school board expels or suspends a student, that student’s ed-

ucation will be disrupted. However, once a student has been suspended or expelled from

school, he or she may have the right to attend another school. Some school districts have

adopted policies providing that if a student is suspended or expelled for any reason from any

public or private school, in Illinois or elsewhere, the student must complete the entire term of

that suspension or expulsion before he/she may be admitted into an Illinois public school dis-

trict.23 Where a student has been suspended or expelled for possessing a “weapon”, or for pos-

sessing, selling or delivering a controlled substance or cannabis on school grounds, or for bat-

tering a staff member of the school, and attempts to transfer into another public school in the

same or different district, the student records required to be transferred must include the date

and duration of the period of suspension or expulsion.24 Where the suspension or expulsion is

by reason of the above misconduct, the student must not be permitted to attend class in the

public school into which he/she is transferring until the expiration of the disciplinary pe-

riod. However, that school district may approve placement of the student in an alternative school.25

Alternative Schools

A policy such as the one described above, may still allow for the placement of an ex-

pelled or suspended student in an alternative school program for the remainder of the suspen-

sion or expulsion. An alternative school is intended to educate “disruptive students” in grades 6

through 12, who would otherwise be subject to expulsion or suspension by the school dis-

trict.26 Where a school district has an alternative school program, a student may be administra-

tively transferred into the alternative school.27 However, this administrative transfer may not

occur without first providing the student with the requisite due process, as discussed earlier.28

It should be noted, that not every school district has an alternative school program. Where a

student is administratively transferred into an alternative school, appropriate personnel from

both the sending school and the alternative school must meet to develop an alternative education

plan, and shall invite the parent/guardian of that student to participate in the meeting.29 The stu-

dent may also be invited to the meeting. An alternative education plan must include the date

when the student may return to his/her regular school, specific academic and behavior plans,

and a method for reviewing the student’s progress at the alternative school.

Parents should check with their school districts regarding the availability of an alterna-

tive school program.

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V. A MIDDLE GROUND

The question that remains unanswered is whether there is another option besides ex-

pulsion that is less exclusionary and punitive. The following outlines some disciplinary methods

that may serve as a middle ground.

Balanced and Restorative Justice (BARJ)

The Illinois Criminal Justice Information Authority (ICJIA) has long supported the use of

balanced and restorative justice (BARJ) philosophies in the Illinois juvenile justice system. Re-

cently, the ICJIA published a guide, entitled Implementing restorative justice: A guide for schools, to

assist in the application of restorative justice policies in schools. The three main goals of restor-

ative justice are: accountability, community safety, and competency development. In addition,

restorative justice aims to depart from traditional punitive and exclusionary methods of disci-

pline and those that criminalize school misconduct, leading to the “school-to-prison pipeline.”30

“Restorative discipline combines strict control and strong support of youth, and approaches

wrongdoing in a way that is not punitive, neglectful, or permissive.”31 Restorative justice policies

have already been successfully implemented in schools around the world, including in countries

such as Canada, the United Kingdom, and Japan.32

Restorative discipline polices in schools require the involvement of the victim, which

may be a teacher, school staff, or bystander, as well as other students and the school communi-ty. Approaches that support restorative justice philosophies and may be implemented in

schools include: mentoring, “peacemaking circles,” mediation with a trained mediator, and peer

juries.33 Parents may want to consult their child’s school regarding the use of such restorative

justice policies in their schools.

SMART Program

Public Schools in Chicago have implemented the SMART program in place of expulsion

on a case-by-case basis. SMART stands for “Saturday Morning Alternative Reach-Out and

Teach.” If a child attends a Chicago Public School and is at risk of expulsion, at the hearing a

parent may ask that his/her child attend the SMART program instead. Students in this program

attend classes for eight consecutive Saturday mornings, where they learn to resolve problems

and receive guidance for certain social behaviors, such as drug and alcohol abuse. Additionally,

students in this program are committed to completing 20 hours of community service for a

non-profit organization. Students enrolled in SMART must attend every class; otherwise, they

may be expelled from school. This program has not been made available to incidents involving

the possession of firearms, sale of drugs, or acts of violence, including threats. Parents with

children in other school districts may consider encouraging their local school board to enforce

a similar program.

VI. SCHOOL DISCIPLINE OF DISABLED STUDENTS

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According to a report published by the Civil Rights Project at Harvard University, Afri-

can-American, Latino, and disabled children “bear the brunt of the consequences” of zero tol-

erance policies.34 In Texas, special education students represent 10 percent of the school popu-

lation, yet they account for 20 percent of those expelled from school.35 In Florida, the imple-

mentation of one such zero tolerance policy led to a disabled 14 year-old student being report-

ed to the police by the principal for allegedly stealing $2 from another student; subsequently,

that disabled student was held in an adult jail for an unusually long period of time before charg-

es were finally dropped.36 Under the Individuals with Disabilities Education Act (“IDEA”), Con-

gress set out specific provisions to guide schools in disciplining students with disabilities, afford-

ing these students certain due process rights.37

If there is a possibility that a student’s misconduct was the result of his/her disability,

and that student is not currently in special education, that child may still have the same rights as

a child with a disability if the school knew or should have known that the child had a disability

before his/her misconduct.38 Please refer to the Whitted, Cleary & Takiff LLC memorandum

entitled “Suspension, Expulsion and Discipline under the IDEA,” for further information regard-

ing school discipline with regards to children with disabilities.

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ENDNOTES 1 Ashley, Jessica and Kimberly Burke, “Implementing restorative justice: A guide for schools,” Illinois Criminal Justice Infor-

mation Authority (ICJIA), 2009.

2 Robinson v. Oak Park and River Forest High School, 571 N.E.2d 931, 933 (1st Dist. 1991).

3 105 ILCS 5/10-22.6(b).

4 Id.

5 Linwood v. Board of Education of City of Peoria, School Dist. No. 150, Peoria County, Ill., 463 F.2d 763, 768 (7th Cir.

1972).

6 Id.

7 Goss v. Lopez, 419 U.S. 565, 581 (1975).

8 Note: The hearing officer is not permitted to give his/her opinion about what the school board should do.

9 Student Code of Conduct for Chicago Public Schools for the 2009-2010 School Year, Section 705.5 (July 22,

2009).

10 105 ILCS 5/10-22.6(a).

11 Goss at 584.

12 105 ILCS 5/10-22.6(a). Note: There have been disputes about the objectivity of hearing officers when a district

employee is utilized for this purpose. We recommend appointment of a completely unrelated party.

13 See Colquitt v. Rich Township High School District, 699 N.E.2d 1109 (1st Dist. 1998) (where the court upheld the

reversal of an expulsion order because the hearing officer had admitted hearsay statements without the student

having a right to confront his accusers).

14 Id.

15 5 ILCS 120/2.

16 Wilson ex rel. Geiger v. Hinsdale Elementary School Dist. 181, 810 N.E.2d 637, 642-43 (2nd Dist. 2004) (where the

court affirmed a school board’s decision to expel) (stating that “[t]he punishment imposed on a student must be

sufficiently egregious in order to come within the narrow concept of arbitrary or capricious official conduct that

justifies the extraordinary intervention by the court in the operation of a public school of this state.”).

17 Robinson at 934-35.

18 20 U.S.C. 7151 et seq.

19 105 ILCS 5/10-22.6(d).

20 720 ILCS 5/24-1.

21 105 ILCS 5/10-27.1A-1B.

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22 105 ILCS 5/10-27.1A(b). See also 105 ILCS 127/2.

23 105 ILCS 5/2-3.13a. See also 105 ILCS 5/10-22.6(g).

24 Id.

25 Note: These rules may not be applicable to disabled students.

26 105 ILCS 5/13A-4.

27 Id.

28 105 ILCS 5/13A-2.5.

29 105 ILCS 5/13A-4.

30 ICJIA, supra at 10.

31 Id. at 11.

32 Id.

33 Note: “Peacemaking circles” bring willing participants together to talk freely about issues and to resolve conflict

with the presence of a trained facilitator.

34 Morris, Bruce and Donna Wells, “School Safety Issues: Zero Tolerance,” Commonwealth Educational Policy

Institute, 2000.

35 Cutter, Jane, “Students with disabilities more often expelled,” PSLweb.org, April 30, 2010.

36 Martin, Ralph C., “Zero Tolerance Policy,” ABA Juvenile Justice Committee, February 2001.

37 See 20 U.S.C. § 1415(k).

38 20 U.S.C. § 1415(k)(5).

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SCHOOL STUDENT

RECORDS ACT

COLLECTION, MAINTENANCE,

INSPECTION, and Dissemination of

Student Educational Records for

Regular and Special Education

Students

Whitted Cleary & Takiff LLC 3000 Dundee Road, Suite #303

Northbrook, Illinois 60062 847.564.8662

Fax: 847.564.8419 www.wct-law.com

14

COLLECTION, MAINTENANCE, INSPECTION,

AND DISSEMINATION OF STUDENT EDUCATIONAL

RECORDS FOR REGULAR AND SPECIAL EDUCATION STUDENTS

CAVEAT: A school student records policy must comply with the Family Educational

Rights and Privacy Act of 1974, the Illinois Student Records Act, and all regulations issued

pursuant to such Acts and the rules of the Illinois State Board of Education. This document is

an overview of the required contents of a school student records policy and compliance with

the requirements stated herein may not satisfy all applicable laws. Therefore, it is advised that a

school district consult an attorney before adopting a given student records policy.

I. NOTIFICATION

Upon initial enrollment or transfer of a student to the school, the school shall notify the

student and the student's parents of their rights under the Illinois School Student Records Act,

the Regulations thereto and the policies stated herein.

II. OFFICIAL STUDENT RECORDS CUSTODIAN

Each school shall designate an official records custodian who is responsible for the

maintenance, care and security of all school student records, whether or not such student

records are in his personal custody or control.

The official records custodian shall take all reasonable measures to prevent

unauthorized access to or dissemination of school student records.

III. MAINTENANCE OF PERMANENT AND TEMPORARY RECORDS

A. Information contained in or added to a school student record shall be limited to

information which is of clear relevance to the education of the student. Information added to a

school student record shall include the name, signature and position of the person who has

added such information and date of its entry into the record.

B. Each school shall maintain student permanent records and the information

contained therein for not less than 60 years after the student has transferred, graduated or

otherwise permanently withdrawn from school.

C. No school shall maintain any student temporary record or the information

contained therein beyond its period of usefulness to the student and the school, and in no case

longer than 5 years after the student has transferred, graduated or otherwise permanently

withdrawn from the school. Notwithstanding the foregoing, a school may maintain indefinitely

anonymous information from student temporary records for authorized research, statistical

reporting or planning purposes, provided that no student or parent can be individually identified

from the information maintained.

15

D. The principal of each school or the person with like responsibilities or his or her

designate shall periodically review each student temporary record for verification of entries and

elimination or correction of all inaccurate, misleading, unnecessary or irrelevant information.

Student records shall be reviewed every four years or upon a student's change in attendance

centers, whichever occurs first, to verify entries and to eliminate or correct all out-of-date,

misleading, inaccurate, unnecessary or irrelevant information.

E. Upon graduation, transfer or permanent of a handicapped student as defined in

the School Code and 23 111. Adm. Code § 226, Subpart A (Special Education), psychological

evaluations, special education files and other information contained in the student temporary

record which may be of continued assistance to the student may, after five years, be transferred

to the custody of the parent or to the student if the student has succeeded to the rights of the

parents. The school shall explain to the student and the parent the future usefulness of these

records.

F. Before any school record is destroyed or information deleted therefrom, the parent shall be given reasonable prior notice in accordance with regulations adopted by the

State Board and an opportunity to copy the record and the information proposed to be

destroyed or deleted.

IV. RIGHT TO INSPECT RECORDS

A. A parent or any person specifically designated as a representative by a parent

shall have the right to inspect and copy all school student permanent and temporary records of

that parent's child. A student shall have the right to inspect and copy his or her school student

permanent record.

B. Whenever access to any person is granted, at the option of either the parent or

the school, a qualified professional, who may be a psychologist, counselor or other advisor, and

who may be an employee of the school or employed by the parent, may be present to interpret

information contained in the student temporary record.

C. 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 in no case later than 15 school days after the date of receipt of such

request by the official records custodian.

D. The school may charge its reasonable costs for the copying of school student

records, not to exceed $.35 per page.

V. DISCLOSURE OF RECORDS

A. No school student records or information contained therein may be released,

transferred, disclosed or otherwise disseminated, except as follows:

(1) To a parent or student or person specifically designated as a representative by a

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parent;

(2) To an employee or official of the school or school district or State Board with

current demonstrable educational or administrative interest in the student in

furtherance of such interest;

(3) To the official records custodian of another school within Illinois or an official

with similar responsibilities of a school outside Illinois, in which the student has

enrolled, or intends to enroll, upon the request of such official or student;

(4) To any person for the purpose of research, statistical reporting or planning,

provided that no student or parent can be identified from the information

released and the person to whom the information is released signs an affidavit

agreeing to comply with all applicable statutes and rules pertaining to school

student records;

(5) Pursuant to court order, provided that the parent shall be given prompt written

notice upon receipt of such order of the terms of the order, the nature and

substance of the information proposed to be released in compliance with such

order and an opportunity to inspect and copy the school student record and to

challenge their contents pursuant to the procedures set forth in 105 ILCS 10/7;

(6) To any person as specifically required by State or federal law;

(7) Subject to regulations of the State Board and to 23 Ill.Adm.Code §375.60 (1996),

in connection with an emergency, to appropriate persons if the knowledge of

such information is necessary to protect the health or safety of the student or

other persons; or

(8) To any person, with prior specific dated written consent of the parent

designating the person to whom the records may be released, provided that at

the time any such consent is requested or obtained, the parent shall be advised

in writing that he has the right to inspect or copy such records in accordance

with 105 ILCS 1015, to challenge their contents in accordance with the

procedures set forth at 105 ILCS 10/7, and to limit any such consent to

designated records or designated portions of the information contained therein.

VI. RELEASE OF RECORDS

A. No information may be released pursuant to paragraphs (3) or (6) unless the

parent receives prior written notice of the nature and substance of the information proposed

to be released, and an opportunity to inspect and copy such records in accordance with 105

ILCS 10/5 and to challenge their contents in accordance with 105 ILCS 10/7.

B. A record of any release of information pursuant to this Section must be made

and kept as a part of the school student record and subject to the access granted herein.

17

A record of any release of information must be made and kept as a part of the

school student record and subject to the access granted by 105 ILCS 101/5. Such record of

release shall be maintained for the life of the school student records and shall be available only

to the parent and the official records custodian. Each record of release shall also include:

(1) The nature and substance of the information released;

(2) The name and signature of the official records custodian releasing such

information;

(3) The name of the person requesting such information, the capacity in which such

a request has been made, and the purpose of such request;

(4) The date of the release; and

(5) A copy of any consent to such release.

C. The school shall grant access to, or release information from, school student

records without parental consent or notification:

(1) To an employee or official of the school or school district or the state board of

education, provided such employee or official has a current demonstrable

educational or administrative interest in the student and the records are in

furtherance of such interest;

(2) To any person for the purpose of research, statistical reporting, or planning,

provided that no student or parent can be identified from the information

released and the person to whom the information is released signs an affidavit

agreeing to comply with all applicable statutes and rules pertaining to school

student records.

VII. PROCEDURE FOR CHALLENGE TO RECORDS

A. Parents shall have the right to challenge the accuracy, relevance or propriety of

any entry in the school student records, exclusive of (I)academic grades of their child and (ii)

references to expulsions or out-of-school suspensions, if the challenge is made at the time the

student's school student records are forwarded to another school to which the student is

transferring. Parents shall be notified of their right to a hearing challenging entries made in the

school student records.

B. The request for a hearing shall be submitted in writing to the school and shall

contain notice of the specific entry or entries to be challenged and the basis for the challenge.

C. Each school shall establish administrative procedures for parents to challenge the

contents of student records. Such procedures shall include:

18

(1) An initial informal conference with the parents, within 15 school days of receipt

of the request for a hearing.

(2) If the challenge is not resolved by the informal conference, formal procedures

shall be initiated.

a) A hearing officer, who shall not be employed in the attendance center in

which the student is enrolled, shall be appointed by the school.

b) The hearing officer shall conduct a hearing within a reasonable time, but

no later than 15 days after the informal conference, unless an extension

of time is agreed upon by the parents and school officials. The hearing

officer shall notify parents and school officials of the time and place of the

hearing.

D. The challenging procedures shall provide for a hearing at which each party shall

have:

(1) The right to present evidence and to call witnesses;

(2) The right to cross-examine witnesses;

(3) The right to counsel;

(4) The right to a written statement of any decision and the reasons therefor;

(5) The right to appeal an adverse decision to an administrative tribunal or official to

be established or designated by the State Board;

E. A verbatim record of the hearing shall be made by a tape recorder or a court

reporter. A typewritten transcript may be prepared by either party in the event of an appeal of

the hearing officer’s decision. However, a typewritten transcript is not required in an appeal.

F. The written decision of the hearing officer shall, no later than 10 school days

after the conclusion of the hearing, be transmitted to the parents and the school district. It

shall be based solely on the information presented at the hearing and shall be one of the

following:

(1) To retain the challenged contents of the student record;

(2) To remove the challenged contents of the student record; or

(3) To change, clarify or add to the challenged contents of the student record.

19

G. Any party shall have the right to appeal the decision of the local hearing officer

to the Regional Superintendent within 20 school days after such decision is transmitted. If the

parent appeals, the parent shall so inform the school and within 10 school days the school shall

forward a transcript of the hearing, a copy of the record entry in question and any other

pertinent materials to the Regional Superintendent. The school may initiate an appeal by the

same procedures. Upon receipt of such documents, the Regional Superintendent shall examine

the documents and record to determine whether the school district’s proposed action in

regard to the student’s record is in compliance with applicable law, make findings and issue a

written decision to the parents within 20 school days of the receipt of the appeal documents. If

the subject of the appeal involves accuracy, relevancy or propriety of any entry in special

education records, the Regional Superintendent should seek advice from special education

personnel.

H. A final decision under the procedures established pursuant to 105 ILCS 10/7 may

be appealed to the Circuit Court of the County in which the school is located.

I. Parents shall also have the right to insert in their child's school student record a

statement of reasonable length setting forth their position on any disputed information

contained in that record. The school shall include a copy of such statement in any subsequent

dissemination of the information in dispute.

20

Whitted Cleary & Takiff LLC 3000 Dundee Road, Suite #303

Northbrook, Illinois 60062 847.564.8662

Fax: 847.564.8419 www.wct-law.com

SCHOOL

RECORDS

RELEASE

21

RELEASE OF CONFIDENTIAL SCHOOL RECORDS

TO:_____________________________ RE:_____________________________________ ________________________________ ADDRESS:_________________________________ ________________________________ __________________________________________ ________________________________ BIRTH DATE: _________ /_________ /__________

Our signatures below grant permission to Whitted, Cleary & Takiff LLC, 3000 Dundee Road, Suite 303, Northbrook, Illinois 60062, and the agency or professional to whom this form is addressed above, to freely exchange personally identifiable oral and/or written school information regarding the above named student. This information is intended for use in educational and legal decisionmaking. The undersigned acknowledges that refusal to sign will result in the information not being released. The undersigned intends that a photocopy or facsimile of this form will carry the same legal force and effect as the original. The undersigned further acknowledges that he/she has the right to revoke this consent in writing at any time, and to inspect, copy or challenge the contents of the records being requested prior to release. Knowing this, the undersigned intends to authorize the release of the designated records pursuant to 105 ILCS 10/6(a)(8) of the Illinois School Student Records Act. This consent covers the full contents of the temporary and permanent files as these are defined in the Illinois School Student Records Act (excerpted on reverse), and data reported by the above-named student’s school district to the Illinois State Board of Education’s data systems, including, and without limitation, the IWAS/SIS system. Redisclosures of third party files are not allowed unless specifically authorized. The undersigned intends for this release to include any mental health files located in the school temporary record.

SIGNED: __________________________________ DATE: ________________________ PARENT OR GUARDIAN

SIGNED: __________________________________ DATE: ________________________ PARENT OR GUARDIAN

WITNESS: _________________________________ DATE: ________________________

WITNESS PRINTED NAME: ____________________________ TITLE: ________________________

EXPIRATION DATE OF THIS RELEASE: _______________________________

N:\GENERAL OFFICE\WCT RELEASES, ETC\SCHOOL RECORDS RELEASE FORM.DOC

PLEASE SEND THE REQUESTED RECORDS TO:

NAME: _______________________________ PHONE: _(847) 564-8662, EXT. ________

3000 DUNDEE ROAD, SUITE 303 NORTHBROOK, ILLINOIS 60062

WCT@WCT-LAW.COM FAX: (847) 564-8419 WWW.WCT-LAW.COM

ALCOHOL/SUBSTANCE ABUSE RECORDS DISCLOSURE If any requested records contain information regarding alcohol or drug abuse treatment, these records are protected by Federal confidentiality rules.

These rules prohibit further disclosure of this information unless further use or disclosure is expressly permitted by the written consent of the person to whom it pertains or as otherwise permitted by Federal rules. A general authorization for the use or release of medical or other information is insufficient

for this purpose. Federal rules restrict use of the information for criminal investigation or prosecution of any alcohol or drug abuse patient.

22

SCHOOL STUDENT RECORDS ACT EXCERPTS:

I. DEFINITIONS – “PERMANENT” AND “TEMPORARY” RECORDS:

105 ILCS 10/2(e) "Student Permanent Record" means the minimum personal information necessary to a

school in the education of the student and contained in a school student record. Such information may include the

student's name, birth date, address, grades and grade level, parents' names and addresses, attendance records,

and such other entries as the State Board may require or authorize.

105 ILCS 10/2(f) "Student Temporary Record" means all information contained in a school student record but

not contained in the student permanent record. Such information may include family background information,

intelligence test scores, aptitude test scores, psychological and personality test results, teacher evaluations, and

other information of clear relevance to the education of the student, all subject to regulations of the State Board.

The information shall include information provided under Section 8.6 of the Abused and Neglected Child Reporting

Act. In addition, the student temporary record shall include information regarding serious disciplinary infractions

that resulted in expulsion, suspension, or the imposition of punishment or sanction. For purposes of this provision,

serious disciplinary infractions means: infractions involving drugs, weapons, or bodily harm to another.

II. DEFINITION – “PARENT:”

105 ILCS 10/2(g) "Parent" means a person who is the natural parent of the student or other person who has the

primary responsibility for the care and upbringing of the student. All rights and privileges accorded to a parent

under this Act shall become exclusively those of the student upon his 18th birthday, graduation from

secondary school, marriage or entry into military service, whichever occurs first. Such rights and privileges

may also be exercised by the student at any time with respect to the student's permanent school record.

III. RIGHT TO ACCESS RECORDS:

105 ILCS 10/5(a) A parent or any person specifically designated as a representative by a parent shall have the

right to inspect and copy all school student permanent and temporary records of that parent's child. A student

shall have the right to inspect and copy his or her school student permanent record. No person who is

prohibited by an order of protection from inspecting or obtaining school records of a student pursuant to the Illinois

Domestic Violence Act of 1986, as now or hereafter amended, shall have any right of access to, or inspection of,

the school records of that student. If a school's principal or person with like responsibilities or his designee has

knowledge of such order of protection, the school shall prohibit access or inspection of the student's school

records by such person.

IV. WRITTEN CONSENTS TO RELEASE FILES:

105 ILCS 10/6(a)(8) To any person, with the prior specific dated written consent of the parent designating

the person to whom the records may be released, provided that at the time any such consent is requested or

obtained, the parent shall be advised in writing that he has the right to inspect and copy such records in

accordance with Section 5, to challenge their contents in accordance with Section 7 and to limit any such consent

to designated records or designated portions of the information contained therein;

105 ILCS 10/6(a)(6.5) To juvenile authorities when necessary for the discharge of their official duties who

request information prior to adjudication of the student and who certify in writing that the information will not be

disclosed to any other party except as provided under law or order of court. For purposes of this Section "juvenile

authorities" means: (i) a judge of the circuit court and members of the staff of the court designated by the judge; (ii)

parties to the proceedings under the Juvenile Court Act of 1987 and their attorneys; (iii) probation officers and court

appointed advocates for the juvenile authorized by the judge hearing the case; (iv) any individual, public or private

agency having custody of the child pursuant to court order; (v) any individual, public or private agency providing

education, medical or mental health service to the child when the requested information is needed to determine the

appropriate service or treatment for the minor; (vi) any potential placement provider when such release is

authorized by the court for the limited purpose of determining the appropriateness of the potential placement; (vii)

law enforcement officers and prosecutors…

(all emphasis is added)

23

Whitted Cleary & Takiff LLC 3000 Dundee Road, Suite #303

Northbrook, Illinois 60062 847.564.8662

Fax: 847.564.8419 www.wct-law.com

MENTAL

HEALTH

RELEASE

24

I hereby authorize: ___________________________________________________________

___________________________________________________________

___________________________________________________________

___________________________________________________________

OR: Illinois State Board of Education Illinois Department of Children and Family Services To use, release, and exchange mental health and medical information and records obtained during the course of treatment of:

Patient Name: __________________________________________ Date of Birth: _____________________

Approximate Date(s) of Service: ____________________________ Patient No. ________________________ (if available)

1. The information is to be disclosed/exchanged with the following: 2. Purpose: The purpose of the use or disclosure is for: Treatment Planning At the request of the parent and/or legal guardian

Legal advice

3. Persons Authorized and information to be used or disclosed: The information to be used or disclosed by Whitted, Cleary & Takiff LLC lawyers, paralegals, and other employees includes only those items checked below. I understand that this authorization extends to all of any part of the records/information designated below which may include treatment for physical and mental illness, alcohol/drug abuse, sexually transmitted disease, HIV/AIDS test results or diagnoses. The information to be used or released includes:

This authorization is limited to only that information requested above to be disclosed to the Whitted, Cleary & Takiff, LLC law firm. I/we hereby release Whitted, Cleary & Takiff, LLC from all legal responsibilities or liability that may arise from the use or disclosure of medical or other records and other health information in reliance on this authorization.

Psychological Testing History and Physical Exam Consultation Reports Education – Clinical Progress Education – IEP/School Assessments Education – School Assignments Medication Records Verbal Communication – No Restrictions Verbal Communication Restrictions Limited to Checked Areas Above Restrictions – Specific Individuals

Discharge Summary Integrated Assessments Psychiatric Evaluation Physician Orders Physician Progress Notes Therapist/Social Services Progress Notes Treatment Plans Clinical Aftercare Plan Laboratory Data Other: __________________________________ __________________________________ __________________________________

PLEASE SEE REVERSE

A SEPARATE FORM IS

REQUIRED FOR EACH ENTITY

CHILD

RECIPIENT LAST NAME: _____________________________

Whitted, Cleary & Takiff, LLC 3000 Dundee Road, Suite 303

Northbrook, Illinois 60062 (847) 564-8662

Fax: (847) 564-8419

SEND RECORDS TO THE ATTENTION OF: __________________________________________________ PHONE: (847) 564-8662, EXT. ___________

25

Mandated Recitals:

1. Expiration: I/we understand that unless I revoke the authorization

earlier, this authorization will automatically expire on _________________________________.

2. Redisclosure: I/we understand that information used or disclosed in accordance with this authorization may no longer be protected by federal law, and could be used or redisclosed by the receiving party, pursuant to any agreement I may have with such party.

3. Refusal to sign: I/we understand that I/we may refuse to sign this authorization and the result would be that the records would not be disclosed.

4. Certification: The undersigned affirms that I am (check whichever applies):

The recipient, and the identification that I have provided is true and correct. The recipient’s authorized representative, and that the identification and proof of authority that I/we have provided are true and correct. My relationship to the patient is that of: Parent Guardian Other _____________________________________________

5. Revocation: I/we have the right to stop the use or release of this information at any time if I do so in writing to Whitted, Cleary & Takiff LLC although I/we understand that I/we cannot do anything about information already used or disclosed pursuant to this authorization. 6. Copy Received: I/we understand that I/we will receive a copy of this completed form. 7. Inspect and Copy: I/we understand that I/we have the right to inspect and copy the information to be disclosed. 8. Challenge: I/we understand that I/we have the right to challenge the accuracy of any information contained in the subject file. 9. Effect of Copies: I/we intend that fax, copies or electronic versions of this document shall carry the same force and effect as the original. 10. Alcohol/Substance Abuse Files: If any requested records contain information regarding alcohol or drug abuse treatment, these records are protected by Federal confidentiality rules. These rules prohibit further disclosure of this information unless further use or disclosure is expressly permitted by the written consent of the person to whom it pertains or as otherwise permitted by Federal rules. A general authorization for the use or release of medical or other information is insufficient for this purpose. Federal rules restrict use of the information for criminal investigation or prosecution of any alcohol or drug abuse patient.

_______________ _____________________________ DATE PATIENT SIGNATURE - AGE 12 OR OVER

_______________ _____________________________ _____________________________ DATE WITNESS TO PATIENT SIGNATURE PRINTED NAME

_______________ _____________________________ _____________________________ DATE PERSONAL REPRESENTATIVE SIGNATURE PRINTED NAME (PARENT, GUARDIAN OR OTHER AUTHORIZED AGENT)

_______________ _____________________________ _____________________________ DATE WITNESS TO PERSONAL REPRESENTATIVE SIGNATURE PRINTED NAME

N:\GENERAL OFFICE\WCT RELEASES, ETC\MENTAL HEALTH RECORDS RELEASE FORM.DOC

CHILD

RECIPIENT LAST NAME:___________________________

26

SUSPENSION,

EXPULSION AND

DISCIPLINE UNDER

THE IDEA

Whitted Cleary & Takiff LLC 3000 Dundee Road, Suite #303

Northbrook, Illinois 60062 847.564.8662

Fax: 847.564.8419 www.wct-law.com

27

INTRODUCTION

A New York City study found that while disabled children constitute thirteen

percent of the student body, this minority percentage is responsible for 50.3 percent of

violent incidents directed against staff. Almost all of these attacks emanate from the

categories of autism and seriously emotionally disturbed children. Apparently with

considerations such as these in mind, Congress in 1997 amended the Individuals with

Disabilities Education Act (“IDEA”) so as to encourage state boards of education to set

aside dollars for the purpose of providing direct services to children, including alternative

programming for children who have been expelled from school.1 It is ironic to observe

that state education agencies now have, under §1411(f)(3) of the amendments, the

authority to take money away from school districts that are currently doing a good job of

providing a free appropriate public education (“FAPE”) to students and to reallocate it

to those districts who are not. In the 2004 reauthorization of the IDEA, Congress once

again amended significant portions of the statute as it relates to disciplining students

with disabilities. The recent amendments provided districts more flexibility to discipline students with disabilities. What follows is an attempt to make sense of a number of

quite complicated provisions, some of which have been added for the first time to IDEA.

A serious attempt has been made to write clearly and simply and to reduce the need for

the repeated cross-referencing that is endemic to the amendments. It is hoped that

parents and educators alike will find this initial review helpful.

I. Suspensions

In Illinois, suspensions are defined as “a period not to exceed 10 school days.”2

The IDEA protects students with disabilities from excessive suspensions by defining the

removal from the students “then-current educational placement” for more than 10

school days as a “change of placement”.3 In general, districts cannot unilaterally change

a student’s placement without consent from the parents. Therefore, suspensions 10

school days or less are not considered a “change of placement” and do not require the

parents’ consent. During the 10-days of suspension, the federal implementing

regulations suggest that IEP services do not need to be provided, although the statute

itself does not provide for any interruption of educational services.4

It is clear that districts cannot suspend students with disabilities for longer than

10 days in a row without resorting to the additional procedures required when districts

seek an expulsion or change of placement (which will be discussed in more detail below

in Section II). However, there is currently great debate as to what extent a district can

suspend a student with disabilities more than 10 non-consecutive days within a school

120 U.S.C. §1411(e)(2)(c)(ix). 2 105 ILCS 5/10-22.6(b). 3 20 U.S.C §1415(j) and (k)(1)(B). 4 Compare, 34 CFR 300.530 with 20 USC §1415(k).

28

year before the suspensions constitute a change of placement, and therefore, subject to

these additional procedures.

When looking at more than 10 non-consecutive days of suspensions, the general

rule is that a change of placement occurs when “the child has been subjected to a series

of removals that constitute a [pattern of removals].” 5 To determine whether a

“pattern” exists, the school district will on a case-by-case basis look to factors such as

(1) whether the child’s behavior is substantially similar to previous incidents, (2) the

total amount of time the child has been removed, (3) the length of each removal, and (4)

the proximity of the removals to one another.6 The district’s decision is subject to

review through due process and judicial proceedings. If the parent files for due process,

there is a statutory injunction, referred to as the “stay put provision” enjoining the

school district from changing the “current” educational placement during the pendency

of all proceedings under the IDEA.7

Finally, in addressing cases of suspensions for less than 10 days, it should be noted that

students with disabilities retain the same procedural rights as their non-disabled peers

to contest a school suspension using the regular education procedures. While a

suspension may not be considered a change in placement, school district still must

report the suspension immediately to the parents of guardian of the student along with

a full statement of the reasons for the suspension and notice of the right to review that

decision.8 If the parents or guardian request a review, either the school board or

hearing officer would review the actions of the school administrators. The student

would have the ability to be heard and present evidence contesting the allegations. The

board would then take action “as it finds appropriate.” While decisions regarding

suspensions may be reviewed judicially, Courts are reluctant to overturn a district’s

discretion in disciplinary matters where the deprivation of schooling is 10 days or less.

II. Expulsions

5 34 C.F.R. §300.536. 6 Id. 7 20 U.S.C §1415(j). 8 105 ILCS 5/10-22.6.

PRACTICAL APPLICATION OF THE LAW: Districts should take a conservative

approach toward suspending students for more than 10 school days in any given

school year. Parents and districts should carefully monitor students who are

repeatedly suspended and proactively request a meeting to discuss the student’s

current educational program. Alternative behavioral intervention plans and/or more

supportive placements should be considered in lieu of multiple suspensions from

school. Only in situations where the student has engaged in dangerous behaviors

harmful to the child or educational environment should a district go beyond 10

suspension days in a school year.

29

The general rule as set forth by the United States Supreme Court and the IDEA,

is that no disabled student may be expelled for behavior that is a manifestation of his or

her disability.9 There are significant changes in the 2004 amendments to the IDEA

concerning the standards for determining when behavior is a manifestation of a

student’s disability. In order for a school district to expel a student with disabilities, the

relevant members of the student’s IEP must meet in what is typically called a

manifestation determination review (“MDR”) meeting. An MDR meeting must be

convened within 10 school days of any decision to expel or change the placement of the

student.

At the MDR meeting all relevant information10 shall be considered in order to

address two questions: (1) Is the conduct in question caused by, or had a substantial

relationship to, the student’s disability; and (2) Is the conduct in question the result of

the school district’s failure to implement the IEP. If either answer is “yes” then the

behavior is a manifestation and the school may not expel the student or change his or

her educational placement. In addition, a “yes” to either question creates in the school

district an additional responsibility of conducting a functional behavioral assessment and

implementing a behavioral intervention plan based on that assessment, or if a behavioral

plan already exists, the affirmative duty to review and modify the plan as necessary.

Finally, unless the behavior falls into one of the special circumstances described below in

Section III, the student must be returned back to the educational placement from where

he or she was removed unless the district and parents agree to a change in placement as

part of the behavioral plan.

If the district at the MDR determines that the behavior was unrelated to the

student’s disability and the IEP was properly implemented then the student is subject to

a change of placement and any other disciplinary measures that could be imposed on a

non-disabled student, including expulsion through the regular education expulsion

process. Under the IDEA, the school district must still provide special education

services to an expelled student with disabilities, so as to enable the child to continue to

9 20 U.S.C §1415(k)(3) and Honig v. Doe, 108 S.Ct. 592 (1988). 10 Relevant information can include, among other items, any evaluative and diagnostic results (including all

information supplied by the parents), an observation of the child, and a review of the child’s IEP and

current placement.

PRACTICAL APPLICATION OF THE LAW: Since there are strict 10 day timeframes to

implement the manifestation review meeting, district typically suspend students with

disabilities for 10 days in order to have time to assemble to relevant staff and review

the student’s situation. Parents, on the other hand, often use this time to contact legal

counsel as well as the student’s private clinical providers so that the student’s entire

clinical “picture” will be provided at the meeting as well as other mitigating or relevant

information.

30

progress in the general education curriculum and progress towards meeting his or her

IEP goals. These services would be provided to the expelled student in an alternative

educational setting.

The decision of the MDR team with respect to placement or the manifestation

determination is subject to appeal through a due process hearing. As previously

indicated, the filing of the due process request triggers the “stay put provision” of the

IDEA, which enjoins the district from removing the student from his or her then-

current educational placement during the pendency of any all proceedings under the

IDEA. The U.S. Supreme Court stated unequivocally in Honig v. Doe that unless the

parents and school district agree, the student remains in the then-current educational

placement. Referring to the intent of Congress the Court stated,

We think it clear, ... that Congress very much meant to strip schools of the

unilateral authority they had traditionally employed to exclude disabled

students, particularly emotionally disturbed students, from school. In so doing, Congress did not leave school administrators powerless to deal with dangerous

students; it did, however, deny school officials their former right to "self-help," and

directed that in the future the removal of disabled students could be accomplished only

with the permission of the parents or, as a last resort, the courts.11 (Emphasis Added)

The Court also remarked that the absence of an "emergency" exception to the stay-put

provision for "dangerous" students was "conspicuous."

Therefore, the filing of a due process request enjoins the district from removing

(i.e. expelling) the student until the issues are resolved through the administrative

hearing. The Court’s interpretation is consistent with the reasons for initial passage of

the EHA, which included the fact that school systems across the country had excluded

one out of every eight disabled children from classes. The Supreme Court stated that

participating states must educate all disabled children, regardless of the severity of their

disabilities.

III. Special Circumstances

Prior to the 1997 and 2004 amendments, school districts seeking to override the

“stay put” provision had to affirmatively go into Court and seek a restraining order or

injunction based on the severity or dangerousness of the student’s misconduct. The

legislature finally added an “emergency” exception (previously noted by the Honig Court

to be absent) to stay-put in the 1997 and 2004 amendments. There now exist several

circumstances where upon the commission of certain offenses, the school district can

unilaterally place a student with disabilities in an interim alternative educational setting

regardless of whether the behavior was a manifestation of the student’s disability. If a

11 Honig at 604.

31

student with disabilities while at school, on school premises, or at a school function (1)

carries or possesses a weapon, (2) knowingly possesses or uses illegal drugs or sells or

solicits the sale of a controlled substance, or (3) inflicts “serious bodily injury” upon

another person, that student can be removed to an alternative educational setting for up

to 45 school days without regards to whether the behavior is determined to be a

manifestation of the student’s disability.

It is important to note that districts can place students who have committed any

of the three acts unilaterally. However, the interim alternative placement must be

determined by the IEP Team, not an individual school administrator. The placement must be selected so as to enable the child to continue to progress in the general curriculum,

although in another setting, to continue to receive all IEP services that will enable the child

to meet his IEP goals, and finally shall include services and modifications designed to

address the behavior so it will not reoccur.12 Even if the district elects to place a student

in a 45-day placement, they are still obligated to follow the procedural timeframes

regarding holding a MDR meeting.

The decision to place a child in an interim alternative placement may be appealed

through a due process request. Furthermore, under the new amendments, school

districts can file their own due process to request an order from a hearing officer

ordering an alternative placement for 45 school days if the student does not fit into one

of the three special circumstances, but the district believes that maintaining the current

placement is substantially likely to result in injury to the child or to others.

IV. Due Process for Disciplinary Decisions

A special education due process hearing may be requested by the parent of a

child with a disability who disagrees with any decision regarding the manifestation

determination or placement resulting from an MDR or unilateral alternative 45-day

placement. As noted above, the district can also request a hearing to place a student in

an alternative 45-day placement if the district believes that maintaining the current

placement is substantially likely to result in injury to the child or others.

If the school district has placed the student in a 45-day interim alternative

setting, then the student will remain in that placement pending the decision of the

hearing officer or the expiration of the time period, whichever occurs first. Therefore,

12 20 U.S.C. §1415(k)(1) and (2).

PRACTICAL APPLICATION OF THE LAW: A “weapon” is defined as, “A

weapon, device, instrument material, or substance, animate or inanimate, that is

used for or is readily capable of, causing death or serious bodily injury, except

that such term does not include a pocket knife with a blade less than 2 ½ inches

in length.” 20 U.S.C. §812(c)

32

all challenges to 45-day placements are expedited, meaning that they must occur within

20 school days of being requested with a decision issued within 10 school days. At

expedited hearing, the hearing officer will determine one of the following questions: (1)

whether the child shall be placed in the proposed alternative educational setting; or (2)

whether the district has demonstrated that the child’s behavior was not a manifestation

of the child’s disability.13

Consequently, there can be circumstances where two separate due process

hearings are required to resolve all issues. Take for example the situation where a

student brings drugs to his traditional high school where he attends. The District

convenes an MDR and finds that the behavior is related, but determines that after

looking at other disciplinary incidents over the course of the year, that the current

placement is not meeting the student’s needs and therefore also recommends a

therapeutic day placement. In addition, the district exercises its right to unilaterally

place the student at a 45-day placement pending his more permanent placement.

In the above case, the parent has the right to challenge the 45-day placement

through an expedited hearing. In addition, the parent can bring a non-expedited hearing

to challenge the change in placement. So where is the stay-put placement during these

appeals? For 45-school days the student would remain at the 45-day placement until the

expedited hearing is resolved in the student’s favor or the 45-school days expire. At

the conclusion of the 45-day placement the stay-put would convert back to the

traditional high school until the completion of the non-expedited hearing. Of course, if

the facts warrant, the district could bring an additional expedited due process hearing

alleging that the current placement is dangerous to the student or others. If the hearing

officer agrees that the student was a danger to themselves or others, the district could

place the student in subsequent additional 45-day alternative placements while the non-

expedited hearing was pending.

If the nature of the student’s behavior does not fall under one of the special

circumstances, then the filing of a due process triggers the stay-put provision and the

13 23 Ill Admin. Code 226.655

PRACTICAL APPLICATION OF THE LAW:

Events Appeal By Status of Hearing

MDR (Not related) Parents Expedited

Unilateral 45-Day Placement (Special Circumstance) Parents Expedited Unilateral 45-Day Placement (No Special Circumstance) District Expedited

MDR (Related, Change of Placement other than 45-day) Parents Non-expedited

MDR (Related, No Change of Placement, Change of Services) Parents Non-expedited

33

student may not be removed from the last agreed upon IEP placement. While a great

deal of detail has been provided regarding the amendment’s complex special

circumstances, the IDEA remains essentially intact in that there is still a presumptive

injunction enjoining school districts from changing the “current” educational placement

during the pendency of all proceedings under the Act that do not fall under the narrow

special circumstances exceptions.

This is underscored by a recent Massachusetts administrative due process

hearing overturning the district’s decision to place a student with Asperger syndrome,

ADHD and multiple LDs in a 45-day interim alternative setting for pulling the principal’s

tie when he learned he would not be permitted to leave school early. The hearing

officer in that case noted that the student did not cause serious bodily injury and

refused to find that the tie was a “weapon,” as it was not capable of causing death or

serious injury. Furthermore, the hearing officer noted that the student did not

“possess” or “carry” the necktie. Since there were no special circumstances present,

the district was not permitted to change the student’s placement unilaterally. Scituate Public Schools, 47 IDELR 113 (Massachusetts State Educational Agency, January 29, 2007)

V. What is the Current Placement During Appeals?

In summary, when a parent requests a hearing to challenge a disciplinary action

taken by a school district for weapons/drugs/risk of injury behavior, and this challenge

involves a dispute as to the alternative educational setting chosen or the manifestation

determination decision made, the child must remain in the alternative education setting

until the expiration of the time period in the applicable paragraph, i.e., not more than 45

days.14

If a child is placed in an interim 45-day alternative placement for

weapons/drugs/risk of injury behavior and school personnel propose to change the

placement after the expiration of the 45 day time period, during the pendency of any

challenge to the proposed change, the child must remain in the location he was in prior

to being moved to the alternative educational setting, except that the local education

agency may request an “expedited hearing” if they think it is dangerous for the child to

go to the pre-AES placement.15 In this instance, to order a change in placement, the

officer must find that:

the school district has shown that maintenance of the current placement

is substantially likely to result in injury to the child or others;

the current alternative educational setting is appropriate;

the school district has made reasonable efforts to minimize the risk;

14 20 U.S.C. §1415(k)(4). 1520 U.S.C. §1415(k)(7)(B) & (C).

34

the alternative educational setting meets the “additional requirements” to

enable the child to continue to participate in the general

curriculum even though he is placed in another setting and to

continue to receive all IEP services enabling the child to meet his IEP

goals, including modifications designed to address the behavior in

question.

VI. Protections for Children Not Yet Eligible for Special Education - 20

U.S.C. §1415(k)(5)

A child can invoke special education procedures, even if he or she is not yet

eligible for special education, if the school district had knowledge that the child had a

disability before the behavior in question occurred. The basis of such “knowledge” is as

follows:

1. The parent (if not illiterate) has expressed a concern in writing

that the child is in need of special education services to either supervisory or administrative personnel of the district or to a

teacher of the child.

-- OR --

2. The parent has requested a Case Study Evaluation;

-- OR -

3. A teacher or “other [school district] personnel” have expressed

concern about the child’s behavior or performance to the Special

Education Director or to “other supervisory personnel” of the

local education agency.16

If there is no “knowledge” found to be present, the child may be subject to the same

discipline rules as others.17 However, if a request for an evaluation is made during the

time the child is subjected to disciplinary procedures, the evaluation must be

“expedited.”18 No time period is specified, however.

If the child is determined to be a child with a disability, the district must provide

special education services and extend all of the disciplinary procedural protections of

the Act, including holding an MDR meeting.

VII. Other Considerations: Records Confidentiality Issues

A provision requires that any school district reporting a crime must ensure that

copies of the special education and disciplinary records are transmitted for

1620 U.S.C. §1415(k)(5)(B). 1720 U.S.C. §1415(k)(5)(D)(i). 1820 U.S.C. §1415(k)(5)(D)(ii).

35

consideration by the appropriate authorities to whom it reports the crime.19 Although

this provision is explicitly intended to reverse some of the case law which held that a

report to juvenile authorities is an arguable change of placement, the amendment goes

too far and in fact would be a direct violation of the mental health confidentiality acts of

many states. Certainly, any conveyance of “special education and disciplinary records”

without proper consent of the parents and any minor age 12 to 18 would be a clear

violation of the Illinois Department of Mental Health and Developmental Disabilities

Confidentiality Act, thereby raising the possibility of an award of attorney fees and

damages to the parents from the violating district.

1920 U.S.C. §1415(k)(6)(B).

36

APPENDIX A

NOTE: An expedited due process request should be used when contesting the

manifestation determination or placement in an alternative educational setting resulting

from disciplinary action.

EXPEDITED DUE PROCESS REQUEST FORM

(to be hand delivered or sent by certified mail)

Date: _______________________

_______________________, Superintendent

_______________________

_______________________

Re: (Name of Student, Age, Date of Birth)

Dear Superintendent ______________:

Please treat this correspondence as a formal request for a due process hearing

pursuant to 105 ILCS 5/14-8.02b, 23 Illinois Administrative Code §226.655, 20 U.S.C.

1415(k)(3) and 34 CFR 300.532, 300.533, 300.507 and 300.508.

I. Name of Child:

The name, age, and date of birth of the child are stated above.

II. Address of Child’s Residence:

Address:

____________________________________________________

City/State/Zip:

____________________________________________________

Phones:

____________________________________________________

III. Name of School the Child is Attending:

_________________________________________________________________

_________________________________________________________________

IV. Description of the Nature of the Problem, Including Facts Relating to the

Problem:

37

_________________________________________________________________

_________________________________________________________________

V. Proposed Resolution of the Problem to the Extent Known and Available at the

Present Time:

_________________________________________________________________

_________________________________________________________________

For the above listed reasons, it is our position that the district has failed to

provide our child with a free appropriate public education as required by state and

federal law. We will participate in state sponsored mediation efforts.

Sincerely,

________________________________

Parent(s)

38

Whitted Cleary & Takiff LLC 3000 Dundee Road, Suite #303

Northbrook, Illinois 60062 847.564.8662

Fax: 847.564.8419 www.wct-law.com

DISCIPLINE

AND

MANIFESTATION

FLOWCHART

39

4083728.1

Before the misconduct occurred:

o Has the parent express concern in writing that the student needs special education?

o Was the student referred for evaluation? o Has a teacher expressed a specific concern about a

pattern of behavior? o Has a special educat ion evaluation been requested?

No

DISCIPliNE AND MANI~ESTATION FlOWCHART

YES s . enous B d ' l I . o 1 y mury: Yes A bodily injury that School may consider placement involves a substantial .....--- in an interim alternative

risk of death; extreme educational setting for the

physical pain; pr otracted expulsion period. (If disputed, the IAEP is limited to 45 school

and obvious days.)

disfigurement; or protracted loss or impairment of the function of a bodily member, organ and Request an order from a hearing faculty. officer or a court ordering an Yes

alternative placement for the expulsion period. (If ordered, the IAEP is limited to 45 school days.)

School may remove for no more than 10 consecutive days prior to expulsion hearing and/or manifestation determination

• Yes

conference.

Unrelated to Disability Manifestation

r Determination Conference

Student may be expelled through ----+ an expulsion meeting, but the Reconvene IEP meeting within school must continue 10 school days of misconduct educational services through an to determine if behavior was IAES for the duration of the manifestation of disability.

1111 Yes

expulsion period.

Related to Disability

~ Review behavior intervention plan or develop behavior

If the misconduct is a manifestation of assessment plan.

the student's disability, no suspension or expulsion may occur. However, an IAES can be instituted for 45 school days for drugs, weapons, or dangerous behavior regardless of the outcome of the manifestation determination.

Misconduct

Notice to parents of misconduct on the same day and send home procedural protections under special education.

1

~ No

~ No

Determine whether the student needs a functional behavior assessment/behavior intervention plan.

© Monica J. Conrad, 2012

I. Referral for Initial Case Study Evaluation (“CSE”)

Whitted Cleary & Takiff LLC 3000 Dundee Road, Suite #303

Northbrook, Illinois 60062 847.564.8662

Fax: 847.564.8419 www.wct-law.com

SPECIAL EDUCATION IN A

NUTSHELL:

A BRIEF GUIDE TO THE

PROCESS AND

PROCEDURES

41

I. Referral for Initial Case Study Evaluation (“CSE”)

A. A referral for a CSE may be made for any child suspected of having a

disability. Every school district must develop and publicize procedures by

which an evaluation may be made (“child find” procedures”). 34 C.F.R. §

300.111 (2006); 23 Ill. Admin. Code § 226.100 (2007).

B. Referrals may be made by “any concerned person”, however, referrals are

typically made by school district personnel, parents, other persons having

primary care and custody of the child, other professional persons having

knowledge of the child's problems, the Illinois State Board of Education

("ISBE"), and even the child themself. 34 C.F.R. § 300.301 (2006); 23 Ill.

Admin. Code § 226.110(b) (2007).

C. Parent is defined as a natural, adoptive, or foster parent; A guardian (but

not the State if the child is a ward of the State.); An individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent,

or other relative) with whom the child lives, or an individual who is legally

responsible for the child’s welfare; or an individual assigned by the State

Board of Education as a “surrogate” parent. 34 C.F.R. § 300.30 (2006).

D. Parental safeguards notification should always be provided to parents upon

initial referral. 34 C.F.R. § 300.504 (2006).

II. Decision Whether to Conduct a CSE

A. The school district must decide whether or not to conduct the CSE within

14 school days of receiving a referral for the CSE. It may use screening

data and conduct preliminary procedures to assist in making this

determination. If the district decides not to conduct a CSE, it must notify

the parents, in writing, and explain its reasoning. A parent may request a

due process hearing to contest the district’s refusal to conduct the CSE. 34

C.F.R. § 300.503(b) (2006); 34 C.F.R. § 300.507 (2006); 23 Ill. Admin. Code

§ 226.110(c)(3) (2007).

III. Parental Consent

A. Parental consent for initial CSE is required prior to CSE. 34 C.F.R.

§ 300.300 (2006).

B. "Consent" is defined to acknowledge that parents can revoke consent, but

such revocation is not retroactive. This means that revocation does not

negate an action that occurred after the consent was given before it was

revoked. Revocation of consent can be done either verbally or in writing.

If done verbally, the district must confirm the request in writing by letter

to the parents within five days. 23 Ill. Admin. Code § 226.540 (2010).

42

C. If a child is a ward of the State and is not residing with the child’s parent,

the school district shall make “reasonable efforts” to obtain the informed

consent from the parent of the child for an initial evaluation. Following

“reasonable efforts,” however, the district is not required to obtain

consent from the parent if the district cannot discover the parent’s

whereabouts. Also, a district does not need to obtain informed consent if

the parent’s rights have been terminated by state law or if a judge has

lawfully given the parent’s rights to make educational decisions for the

child “to an individual appointed by the judge to represent the child.” 34

C.F.R. § 300.300(a)(2) (2006).

IV. CSE and Eligibility Determination Conference

A. The current federal IEP Regulations state that the “IEP Team” determines

both the relevant “domains” that must be evaluated and the actual

assessments to be utilized. Existing data must be considered. All IEP meetings must be scheduled at a mutually convenient time for both the

school and the parents. 34 C.F.R. § 300.304 (2006); 34 C.F.R. § 300.305

(2006); 34 C.F.R. § 300.322 (2006).

B. The initial CSE and CSE review conference to determine eligibility must be

completed within 60 school days from the date of referral. The "date of

referral" that starts the 60-day timeline is the date on which the parent(s)

sign consent for the CSE. 34 C.F.R. § 300.301(c) (2006); 23 Ill. Admin.

Code § 226.110(d) (2007).

C. According to the Illinois School Code, when a student is referred for an

evaluation with less than 60 days left in the school year, eligibility must be

determined and, if necessary, an IEP developed prior to the first day of the

next school year. 105 ILCS 5/14-8.02 (2008).

D. Parent shall be provided with a copy of the team’s report at the conclusion

of the IEP meeting. A separate written statement may be provided by a

team participant who wishes to be on record as disagreeing with the

conclusions of the team. Within 10 days of the conference, parents shall

receive written notice from the district as to the eligibility determination

reached for the child. 23 Ill. Admin. Code § 226.110 (e) & (f) (2007).

V. Initial Special Education Eligibility Determination

A. Eligibility is based on the federal and state definitions of a disability and is

determined by a majority of team members. The existence of a DSM1

disability will not necessarily mean the child has a special education

disability, unless the disability impacts the child’s education. 34 C.F.R. §

1 Diagnostic and Statistical Manual of Mental Disorders is a manual published by the American Psychiatric

Association that includes all currently recognized mental health disorders.

43

300.8 (2006); 34 C.F.R. § 300.306 (2006); 23 Ill. Admin. Code § 226.75

(2007).

VI. Initial IEP Development by IEP Team

A. If the child is eligible for special education service under a disability

category, then an IEP is drafted. The IDEA requires that specific individuals

be present at the IEP team including the parent, a regular education

teacher, a special education teacher an individual from the school district

capable of making decisions and committing district resources. 34 C.F.R. §

300.306(c)(2) (2006); 34 C.F.R. § 300.321 (2006).

B. An IEP must be developed within 30 days of the eligibility determination.

34 C.F.R. § 300.323(c) (2006).

VII. Special Education Services

A. The IEP must be based on measurable goals. The 2004 IDEA

reauthorization no longer requires districts to draft objectives with goals,

except for children with disabilities who take alternate assessments aligned

to alternate academic achievement standards. District may choose to draft

objectives with goals. 34 C.F.R. § 300.320(a)(2) (2006).

B. Parental consent must be obtained by the school district prior to

providing special education and related services. According to the

new IDEA reauthorized statute, School Districts may not file for a due

process hearing to override a parents’ lack of consent for implementing

services. Current Illinois rules are unclear whether a District may file for a

due process hearing if a parent did initially provide consent for

implementing services and then revoked consent. 34 C.F.R. § 300.300(b)

(2006); 23 Ill. Admin. Code § 226.540 (2010).

C. The school district must wait 10 days before placement may occur,

although parents may waive this waiting period. In no case should

placement occur later than the beginning of the next school semester. 105

ILCS 5/14-8.02 (2008); 23 Ill. Admin. Code § 226.520 (2007).

VIII. Annual Review of IEP

A. A review of the IEP must be held at least annually. 34 C.F.R. § 300.324(b)

(2006).

B. 10-day parental notification required for all IEP meetings, or a record of

reasonable attempts to notify parent required by the district prior to any

IEP meeting. Parents may waive 10-day notice. 23 Ill. Admin. Code §

226.530 (2010).

44

C. A parent may request an IEP meeting at anytime (within reason) if desired.

The district has 10 days after receipt of such a request to either agree to

convene the meeting or notify the parents in writing of its refusal. 23 Ill.

Admin. Code § 226.220 (2010).

IX. Three-Year Reevaluation

A. A reevaluation of the student may be conducted at anytime, but must be

conducted at least every three years. 34 C.F.R. § 300.303(b) (2006).

B. Parental consent for all reevaluations must be obtained. If a school district

is unable to obtain parental consent for a reevaluation, it may file for a due

process hearing in order to obtain consent. 34 C.F.R. § 300.300(c)(1)(i) &

(ii) (2006).

C. Upon receiving parental consent, the IEP team is now authorized to review the child’s existing record in order to determine whether any new

evaluations are unnecessary or whether the team may rely on existing

data. 34 C.F.R. § 300.305 (2006).

D. The domain determinations completed for initial evaluations must also be

done for reevaluations. 34 C.F.R. § 300.305 (2006).

X. Transfer Students

A. Same state: A transfer student enrolling in a school district with an IEP

must be enrolled immediately. The new district must provide services

comparable to those in the existing IEP, in consultation with the parents,

until the new district either adopts the existing IEP or develops and adopts

a new IEP. Presumably, the new IEP should be based on the student’s

previous needs and evaluations. 34 C.F.R. § 300.323(e) (2006).

B. Out-of-state: As with in-sate transfers, transfer student enrolling in a

school district with an out-of-state IEP must be enrolled immediately. The

new district must provide services comparable to those in the existing IEP,

in consultation with the parents, until the new district conducts its own

evaluation of the student and develops a new IEP. 34 C.F.R. § 300.323(f)

(2006).

XI. Miscellaneous

A. The IDEA requires prior written notice to parents whenever a district

proposes to change, or refuses to change, a child’s evaluation,

identification, placement or the provision of the free and appropriate

public education (“FAPE”) program. 23 Ill. Admin. Code § 226.520 (2007).

45

B. Parents are entitled to request a due process hearing whenever they have

a complaint regarding the evaluation, identification, placement, or the

provision of FAPE of the child. 34 C.F.R. § 300.507(a)(1) (2006).

C. The new IDEA establishes a two-year statute of limitations for filing a due

process hearing following the date the parent or district knew or should

have known of a violation. 34 C.F.R. § 300.507(a)(2) (2006).

46

ILLINOIS STATE

BOARD OF

EDUCATION

FORMS

Whitted Cleary & Takiff LLC 3000 Dundee Road, Suite #303

Northbrook, Illinois 60062 847.564.8662

Fax: 847.564.8419 www.wct-law.com

47

48

PARENT/GUARDIAN CONSENT FOR INITIAL EVALUATION

DATE:-------STUDENT'S NAME: __________ STUDENT'S DATE OF BIRTH: _____ _

Dear ___ ~~~~~~~~-~----(Parent(s)/Guardian(s) Name)

Each school district shall ensure that a full and individual evaluation is conducted for each child being considered for spe­cial education and related services. The purpose of an evaluation is to determine:

Whether the child has one or more disabilities; The present levels of academic achievement and functional performance of the child; Whether the disability is adversely affecting the child 's education; and, Whether the child needs special education and related services.

An evaluation considers domains (areas related to the suspected disability) that may be relevant to the educational problems experienced by the individual child under consideration . The nature and intensity of the evaluation, including which domains will be addressed, will vary depending on the needs of your child and the type of existing information already available. The IEP Team, of which you are a member, determines the speci fic assessments needed to evaluate the individual needs of your child. Within 60 school days from the date of parent/guardian consent, a conference will be scheduled with you to discuss the findings and determine eligibility for special education and related services.

The IEP team must complete page 2 of this form prior to obtaining parental consent for evaluation.

PARENT/GUARDIAN CONSENT FOR INITIAL EVALUATION

I understand the school district must have my consent for the initial evaluation. If I refuse consent for an initial evaluation, the school district may, but is not required to, pursue override procedures through due process. If the school district chooses not to pursue such procedures, the school district is not in violation of the required evaluation procedures. I understand my rights as explained to me and contained in the Explanation of Procedural Safeguards. I understand the scope of the evaluation as described on page 2 of this form.

D I give consent D I do not give consent to collect and/or review the evaluation data as described on page 2 of this form.

Date: ------------ Parent/Guardian Signature:-------------------

Page 1 of 2 ISBE 34-578 (4/08)

49

This form must be completed by the IEP Team

DOMAIN RELEVANT

YES NO

Academic Achievement Current or past academic achievement data pertinent to D D current educational performance.

Functional Performance Current or past functional performance data pertinent to D D current functional performance.

Cognitive Functioning Data regarding cognitive ability, how the

D D child takes in information, understands information and expresses information.

Communication Status Information regarding communicative abili-

D D ties (language, articulation, voice, fluency) affecting educational performance.

Health Current or past medical diffiCUlties

D D affecting educational performance.

Hearing/Vision Auditory/visual problems that would

D D interfere with testing or educational perfor-mance. Dates and results of last hearing/ visual test.

Motor Abilities Fine and gross motor coordiation difficul-

D D ties, functional mobility, or strength and endurance issues affecting educational performance.

Social/Emotional Status Information regarding how the environ-

D D ment affects educational performance (life history, adaptive behavior, independent function , personal and social responsibility, cultural background).

ISBE 34-57 B/C (4/08)

Student Name: Date: _/_/_

PARENT/GUARDIAN CONSENT FOR EVALUATION Identification of Needed Assessments

EXISTING INFORMATION ABOUT ADDITIONAL EVALUATION DATA THE CHILD NEEDED

SOURCES FROM WHICH DATA WILL BE OBTAINED

50

PARENT/GUARDIAN CONSENT FOR INITIAL PROVISION OF SPECIAL EDUCATION AND RELATED SERVICES

DATE:-------STUDENT'S NAME: __________ .STUDENT'S DATE OF BIRTH:------

Dear ------------------(Parent(s)/Guardian(s) Name)

At a recent conference your child was recommended for initial provision of special education and related services and an Individualized Education Program (IEP) was developed. Before a school district can provide the special education services described in your child's IEP, your informed written consent is required. Your consent is voluntary and you may revoke your consent at anytime. If you revoke consent, it does not negate an action that occurred after the consent was given and before it was revoked.

CHECK ONE:

D I give consent For the initial special education and related services of my chi ld as indicated on the Individualized Education Program (IEP). The proposed special education and related service(s) have been fully explained to me and are consistent with the IEP developed for my child.

I understand that my consent is voluntary. I understand that my consent is not required for continued services or change in services/placement. At least annually, I will be given reasonable opportunity for comment on and input into my child's IEP.

I received a copy of the Explanation of Procedural Safeguards which have been fully explained to me by school personnel, including the procedures for requesting an impartial due process hearing.

I understand that as soon as possible following development of the IEP, but not more than ten (1 0) calendar days, special education and related services will be provided to my child in accordance with the IEP.

D I do not give consent For the special education and related services of my child as indicated in the Individualized Education Program (IEP).

D I have received

I understand that the school district will not be in violation of the requirement to make available a free appropriate public education for my child if I refuse to give consent.

D Copy of the IEP Eligibility Summary D Copy of the Individualized Education Program (IEP) D Other ______________ _

Date:----------- Parent/Guardian Signature:----------------

If you have any questions concerning this process or require additional information regarding your and your child's rights, please contact:

Name: --------------Title: - -----------Phone:---------

Sincerely,

(Signature) Name: ________ _________ ___

Title:----------------ISBE 34-57F (4/08)

51

STUDENT NAME: _______________ ____ DATE OF MEETING:--- --------

INDIVIDUALIZED EDUCATION PROGRAM (CONFERENCE SUMMARY REPORT)

DATE OF MOST RECENT EVALUATION: ~__)__ DATE OF NEXT REEVALUATION: _ _ ! __ ! __

0 Review of Existing Data

0 Initial Ellgibility

0 ReevaluatiOn

0 lnitiaiiEP

PURPOSE OF CONFERENCE (Cileck an that apply)

D IEP Review/Revision

D Transition

D Manifestation Determination

0 Graduation

STUDENT IDENTIFICATION INFORMATION STUDENT'S ADDRESS (Street, City, State, Zip Code) STUDENT'S DATE OF BIRTH

C MALE ETHNICITY LANGUAGE/MODE OF COMMUNICATION CURRENT GRADE LEVEL

[] FEMALE USED BY STUDENT

PLACEMENT (To be completed after placement determination) DISABILITY(S)

0 YES 0 NO Placement is in Resident School

RESIDENT DISTRICT SERVING DISTRICT

RESIDENT SCHOOL SERVING SCHOOL

PARENT/GUARDIAN INFORMATION ·

(1 ) PARENT'S NAME 0 Educational Surrogate Parent (2) PARENT'S NAME

0Termination of Placement

0 Other (e.g . FBNBIP)

SIS ID NUMBER

ANTICIPATED DATE OF HS GRADUATION

MEDICAID NUMBER

0Educational Surrogate Parent

(1) PARENT'S ADDRESS (Street, City, State, Zip Code) (2) PARENT'S ADDRESS (Street , City, State , Zip Code)

(1) PARENT'S TELEPHONE NUMBER (Include Area Code) (2) PARENT'S TELEPHONE NUMBER (Include Area Code)

(1) LANGUAGE/MODE OF COMMUNICATION USED BY PARENT(S) (2) LANGUAGE/MODE OF COMMUNICATION USED BY PARENT(S)

D YES I I NO Interpreter D YES []NO Interpreter

PARTICIPANTS INFORMATION

Signature indicates attendance. Check appropriate boxes to indicate which meetings were attended. Anyone serving in a dual role should indicate so on the following lines. If a required participant participates through written input or is excused from all or part of the lEP meet ing, the required excusal and written report, as necessary, is attached.

ELIG. REVIEW IEP

DC DO D rJ D D D

D D [] 0 0

Parent

Parent

Student

LEA Representative

General Education Teacher

Special Education Teacher

SchooiPsycholog~t

EUG. REVIEW

0 []

D 0 D 0 D

IEP

[""j

- .J

[J

D []

D I"!

Cl

School Social Wo'*er

Speech-Language Pathologist

Bl1mgual Specialist

Interpreter

Other (specify)

Other (specify)

Other (specify)

H the parent (s) d id not attend the IEP meeting, document the attempts to contact the parent(s) prior to the IEP meeting.

PROCEDURAL SAFEGUARDS Explanation of Procedural Safeguards were provided to/reviewed with the parent(s) on

------------------------------------Transfer of Rights - Seventeen-year old student informed of his/ her rights that will transfer to the student upon reaching age 18.

DYES DNA

Parent(s) were given a copy of the : 0 · · 0 Evaluation report and eligibility determ1nat1on IEP

D District's behavioral intervention policies ooistrict's behavioral intervention procedures (initiaiiEP only)

ISBE 37-44 (7/07) Illinois State Board of Education, Special Education Services, 100 North First, Springfield, IL 62777-0001

52

STUDENT NAME:------ -------------DATE OF MEETING:-----------

DOCUMENTATION OF EVALUATION RESULTS

Complete for initial evaluations, reevaluations, or a review of an independent or outside evaluation.

Considering all available evaluation data, record the team's analyses of the student's functioning levels. Only those areas which were identified as relevant to the current evaluation must be completed. All other areas should be noted as "Not Applicable". Evaluation data may include: parental input, teacher recommendations, physical condition, social or cultural background, adaptive behavior, record reviews, interviews, observations, testing etc. Describe the observed strengths and/or deficits in the student's functioning in the following domains.

Academic Achievement (Current or past academic achievement data pertinent to current educational performance.)

Functional Performance (Current or past functional performance data pertinent to current functional performance.)

Cognitive Functioning (Data and other information regarding intellectual ability; how the student takes in information, understands information, and expresses informatton.)

Communicative Status (Information regarding communicative abilities (language, articulation, voice, fluency) affecting educational performance.)

For ELL students explain ELL STATUS: Has Unguistic status Changed: 0 YES 0 NO

Health (Current or past medical difficulties affecting educational performance.)

HearingNision (Auditory/visual problems that would interfere with testing or educational performance. Include dates and results of last hearing/vision test.)

Motor Abilities (Fine and gross motor coordination difficulties, functional mobility, or strength and endurance issues affecting educational performance.)

Social/Emotional Status/Social Functioning (Information regarding how the environment affects educational performance (life history, adaptive behavior, independent functioning, personal and social responsibility, cultural background.)

IS BE 37-44A (7/07) Illinois State Board of Education, Special Education Services, 100 North First, Springfield, IL 62777·0001

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STUDENT NAME:--------------- ----DATE OF MEETING:-----------

ELIGIBILITY DETERMINATION (ALL DISABILITIES OTHER THAN SPECIFIC LEARNING DISABILITY)

DETERMINANT FACTORS

The determinant factor for the student's suspected disability is:

Lack of appropriate instruction in reading, Including the essential components of reading instruction D Yes D No

D Yes 0 No

D Yes 0 No

(Evidence Provided)-------- - -------------------------

Lack of appropriate instruction in math (Evidence Provided)--------------------­

Limited English Proficiency ~Evidence Provided)-------------------------

If any of the above answers is "yes," the student is not eljgjble for services under IDEA and the team must complete Step 1 and 4 below. If all of the answers are "no," complete Steps 1-4

STEP 1-DISABILITY

COMPLETE FOR STUDENTS SUSPECTED OF HAVING A DISABILITY UNDER IDEA

D D

No Disability Identified !Complete Step 4 .llW1 write ' Not Eligible for Special Education Services" in the Disability section of the Conference Summary Report page.)

Disability Identified Based on the team's analysis, identify the disability(s):

Primary

0 Autlsm(O)

r .. ] .....__ Cognitive Disability (A)

l_j1 I_ Deaf/Blindness (H)

[] Deafness (G)

Secondary

0 []

Primary

D Multiple Disabilities (M)

D Orthopedic Impairment (C) ~

L .J Other Health Impairment (L)

0 Speech or Language Impairment (I)

Secondary

D r: L.J

LJ D

0 Developmental Delay (3-9) (N)

0 Emotional Disability (K)

D D D D u

D Traumatic Brain Injury (P) [J [J Visuallmpairmentlncluding Blindness (E) 0

r-1 L..J Hearing Impairment (F)

Step 2 -ADVERSE EFFECTS

No Adverse Effect Identified {Complete Step 4 and write 'Not Eligible for Special Education Services" in the Disability section of the Conference Summary Report page.)

Advarse Effact Identified For each disability identified, describe how the disability adversely affects the student's education performance.

STEP 3 - EDUCATIONAL NEEDS

State to what extent the student requires special education and related services to address educational needs.

STEP 4-EUGIBILITY

Based on the steps above, the student is entitled to special education and related services.

0 No (Not Eligible) D Yes (Eligible)

ISBE 37-448 (7707) llhno1s State Board of Educaflon, Spec1al Educabon Serv1ces, 100 North F1rst. Spnngfleid, IL 62777-0001

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STUDENT NAME: _ ___________________ DATE OF MEETING:-----------

DOCUMENTATION OF INTERVENTION/EVALUATION RESULTS (SPECIFIC LEARNING DISABILITY)

(Required as of the 201D-2011 School Year)

Complete for initial evaluations, reevaluations, or a review of an Independent or outside evaluation when a specific learning disability is suspected.

As part of the evaluation process, relevant behavior noted during observation in the child's age-appropriate learning environment, including the general education classroom setting for school-age children, and the relationship of that behavior to t he child's academic functioning and educationally relevant medical findings, if any, must be documented.

PROBLEM IDENTIFICATION I STATEMENT OF PROBLEM: Using baseline data, please provide an initial performance discrepancy statement for all identified areas of concern In the relevant domains (academic performance; functional performance; cognitive functioning. communicative status (for ELL students includes an explanation of ELL status and any change in linguistic status); social/emotional status/functioning, motor abilities, health, hearing and vis io n) including information about the student's performance discrepancy prior to intervention. Attach evidence.

PROBLEM ANALYSIS I STRENGTHS AND WEAKNESSES: Describe student's skill strengths and weaknesses in the identified area(s) of concern within the relevant domains. Attach evidence, including evi­dence of skills deficit versus performance deficit.

PLAN DEVELOPMENT /INTERVENTION(S): Describe the previous and current intervention planli (core/Tier 1, supplemental/Tier 2, and intensive/Tier 3) including evidence that the intervention is scientifically based and was implemented with integrity. Attach plan/evidence.

PLAN EVALUATION I EDUCATIONAL PROGRESS: Provide documentation of student progress over time as a result of the intervention. Attach evidence/graphs.

PLAN EVALUATION I DISCREPANCY: State the current performance discrepancy after intervention, i.e., the difference between a student's level of performance compared to the performance of peers or scientifically-based standards of expected performance. Attach evidence.

PLAN EVALUATION / INSTRUCTIONAL NEEDS: Summarize the student's needs in the areas of curriculum, instruction, and environment. Include a statement of whether the student's needs in terms of materials, planning, and personnel required for intervention Implementation are significantly different from those of general education peers. Attach evidence.

ADDITIONAL INFORMATION NECESSARY FOR DECISION-MAKING (INCLUDE AS APPROPRIATE): Report any educationally relevant information necessary for decision-making, including information regarding eligibility exclusionary and inclusionary criteria. Attach evidence.

IS BE 37-44C (7/07) Illinois State Board of Education, Special Education Services, 100 North First, Springfield, IL 62777-0001

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STUDENT NAME:-------------------DATE OF MEETING:-----------

ELIGIBILITY DETERMINATION (SPECIFIC LEARNING DISABILITY)

(Required as of the 2007·2008 School Year)

Complete for Initial evaluations, reevaluations, or a review of an Independent or outside evaluation when a specific learning disability is suspected.

· QETEBMINANJ fACTORS

The determinant factor for the student's suspected disability is:

0 Yes 0 No Lack of appropriate instruction in reading, including the essential components of reading instruction

(Evidence Provided)----------------------------

L]Yes

DYes

0 No

L-1 No

Lack of appropriate instruction in math (Evidence_Provided) _______________ _

limited English Proficiency (Evidence_Provided) __________________ _

If any of the above answers is "yes," the student is not eligible for services under IDEA_and the team must complete the Eligibility Determination section accordingly. If all of the answers are "no," complete the following sections.

EXCLUSIONARY CRITERIA

The team determined that the following factors are the primary basis for the student's learning difficulties. Document the source of evidence in each area:

D Yes 0 No A visual, hearing or motor disability: D Yes D No Cognitive Disability: ~10 ) Yes ~=~ No Emotional disability:

~~ Yes [:j No Cultural factors: L~ Yes No Environmental or economic disadvantage:

If any of the boxes immediately above is checked "yes," the student cannot have a primary eligibility of specific learning disability and the team must complete the Eligibility Determination section accordingly.

Is the student progressing at a significantly slower rate than is expected In any areas of concern? (Select One) ,--,

; _J No

~ ·~I Yes - The student is progressing at a significantly slower rate than expected L-. Yes - The student Is currently making an acceptable rate of progress but only because of the intensity of the intervention that is

being provided.

If yes, in which area(s)?

Discrepancy (At One Point in Time) Evidence In the Documentation of Evaluation Results should support the team's answer to this question.

Is the student's performance significantly below performance of peers or expected standards in any areas of concern? (Select One)

0 No 0 Yes - The student's performance is significantly discrepant. 0 Yes - The student's performance is not currently discrepant but only because of the intensity of the intervention that is being

provided.

If yes, in which area(s)?

IS BE 37-440 (7/07) Illinois State Board of Education, Special Education Services, 100 North First, Springfield, IL 62777-0001

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STUDENT NAME: -------------------DATE OF MEETING:-----------

ELIGIBILITY DETERMINATION (SPECIFIC LEARNING DISABILITY)

(Required as of the 2007-2008 School Year)

Instructional Need Evidence In the Documentation of Evaluation Resuns should support the team's answer to this question.

Are this student's needs in any areas of concern significantly different from the needs of typical peers and of an intensity or type that exceeds general education resources?

(Select One)

qNo U Yes - The student's instructional needs are significantly different and exceed general education resources.

If yes, in which area(s)?

If any of the boxes in lnclusionary Criteria are marked "No", the student does not have a Specffic Learning Disability and the team must complete the Eligibility Determination section accordingly.

Optional Criteria After determining that the criteria in the preceding section are met, the district may choose to use an 10-achievement discrepancy model. If using this model, complete this section.

IQ-Achievement Discrepancy:

["jYes ! ] No 0 NA Does a severe discrepancy exist between achievement and abi lity that is not correctable without special - ~-- education and related services? (Please refer to evidence in Documentation of Evaluation Results)

If yes, in which area(s)?

ELIGISIUTV DEJERMINATION

Step 1: Disability Adversely Affecting Educational Performance

[]Yes [] No Based on the answers to the questions in the "Determinant Factors, Exclusionary Criteria, " and "lnclusionary Criteria," sections, does the student have a specific learning disability?

If the answer is "no" the student is not eligible for special education services under the category of Specific Learning Disability and the team must complete Step 2 below.

If the answer is "yes," indicate the area below and complete Step 2.

D Basic reading skills

0 Reading fluency skills

0 Reading comprehension

0 Mathematical calculation

[] Mathematical problem solving

0 Written expression

Step 2: Special Education and Related Services

D Oral expression

D Listening comprehension

0 Specialized instruction is required in order for the student to make progress and reduce discrepancy {Eligible)

[J Specialized instruction is not required in order for the student to make progress and reduce d iscrepancy (Not Eligible)

Each team member must sign below to certify that the report reflects his/her conclusions for specific learning disability. Any participant who d isagrees with the team's decision must submit a separate statement presenting her/his conclusions.

D Yes D No 0 Yes D No

0 Yes D No D Yes 0 No

D Yes 0 No 0 Yes D No

D Yes 0 No 0 Yes 0 No - - ----- - - ---

IS BE 37-44E (7/07) Illinois State Board of Education, Special Education Services, 100 North First, Springfield, IL 62777-0001

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STUDENT NAME: ____________________ DATE OF MEETING: -----------

DATA CHART (OPTIONAL)

REPORT OF PERFORMANCE (READING, WRITING, MATH)

Insert a data chart that displays the student's performance in reading, writing, and/or math relative to his/her peer group. Data charts may be provided for other areas, as well.

REPORT OF PERFORMANCE (INSERT OATA CHARD

REPORTOtPERFORMANCE . . . (INSERT DATA CHART) .

IS BE 37-44F (7/07) Illinois State Board of Education, Special Education Services, 100 North First, Springfield, IL 62777-0001

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STUDENT NAME: - - - ------------- ---DATE OF MEETING:-----------

PRESENT LEVELS OF ACADEMIC ACHIEVEMENT AND FUNCTIONAL PERFORMANCE

Complete for initlaiiEPs and annual reviews.

When completing this page, Include all areas from the following list that are Impacted by the student's disability: academic perfor­mance, social/emotional status, independent functioning, vocational, motor skills, and speech and language/communication. This may include strengths/weaknesses identified In the most recent evaluation.

Student's Strengths

Parental Educational Concerns/Input

Student's Present Level of Academic Achievement (Include strengths and areas needing improvement)

Student's Present Levels of Functional Performance (Include strengths and areas needing improvement)

Describe the effect of this individual's disability on involvement and progress in the general education curriculum and the functional implications of the student's skills.

* For a preschool child, describe the effect of this individual's disability on involvement in appropriate activities.

* By age 14V2, describe the effect of this individual's disability on the pursuit of post-secondary expectations (living, learning, and working).

ISBE 37-44G (7/07) Illinois State Board of Education, Special Education Services, 100 North First, Springf ield, IL 62777-0001

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STUDENT NAME: _ _ ____ _____________ DATE OF MEETING:--------- --

SECONDARY TRANSITION

Complete for students age 14Y. and older, and when appropriate for students younger than age 14Y.. Post-school outcomes should guide the development of the IEP for students age 14Y. and older.

· AGE-APPROPRIATE TRANSITION ASSESSMENTS TRANSITION ASSESSMENTS ASSESSMENT RESPONSIBLE DATE REPORT

GOAL# (INCLUDING STUDENT AND FAMILY SURVEY/INTERVIEW) TYPE AGENCY/PERSON CONDUCTED ATTACHED

EMPLOYMENT U NONE NEEDED

EDUCATION U NONE NEEDED .

TRAINING U NONE NEEDED

INDEPENDENT LIVING SKILLS U NONE NEEDED

POST-SECONDARY OUTCOMES (ADDRESS BY AGE 141/2) ·

Indicate and project the desired appropriate measurable post-secondary outcomes/goals as identified by the student, parent and IEP team. Goals are based upon age appropriate transition assessments related to employment, education and/or training, and where appropriate, independent living skills

Employment (e.g., competitive, supported shelter, non-paid employment as a volunteer or training capacity, military):~

Post-Secondary Education (e.g., community college, 4-year university, technical/vocational/trade school) : ANQ/OB

Post-Secondary Training (e.g., vocational or career field, vocational training program, independent living skills training, apprenticeship, OJT, job corps): AHQ

IF APPLICABLE, Independent Uving (e.g., independent living, health/safety, self-advocacy/fUture planning, transportation/mobility, social. relationships, recreation/leisure, financial/income needs):

COURSE OF STUDY (address by age 14%)

Identify a course of study that is a long-range educational plan or multi-year description of the educational program that directly relates to the student's anticipated post-school goals preferences and Interests u described above

' Year 1 -Age 14/15 Year 2 -Age 15/16 Year 3 -Age 16/17 Year4 -Age 17/18 Extended -Age 18/21

IS BE 37-44H (7/07) Illinois State Board of Education, Special Education Services, 100 North First, Springfield, IL 62777-0001

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STUDENT NAME: ------ ------------- DATE OF MEETING:-----------

TRANSmON SERVICES (address by age 141/2)

Please Include, If appropriate, needed linkages for outside agencies, (e.g., DMH, DRS, DSCC, PAS, SASS, SSI, WIC, DHFS, etc.)

INSTRUCTION (e.g., Moring, skills training , prep for college entrance exam, accommodations, adu!t basic ed.)

Provider Agency and Position

Goal #(s) if appropriate

1 uatetYear to be Addressee

(If none, indicate "none") Date/Year completed

RELATED SERVICES (e.g., transportation, social services, medical services, technology, support services)

Provider Agency and Pos1t 1on

Goal #(s) if appropriate

1 uareJTear ro oe Aaaressea

(If none, indicate "none" ·Date/Year completed

COMMUNI1Y EXPERIENCES (e.g., job shadow, work experiences, banking, shopping, Provider Agency and Position transportation, tours of post-secondary settings)

Goal #(s) if appropriate

1 uatetyear to ce Aaaressea

(If none, indicate "none" 1 uatetYear L;ompretea

DEVELOPMENT OF EMPLOYMENT AND OTHER POST-SCHOOL ADULT LIVING Provider Agency and Position OBJECTIVES (e.g. , career planning, guidance counseling, job try-outs, register to vote, adult benefits planning) Goal #(s) if appropriate

1 uatetYear to be Addressee

(If none, indicate "none"), Date/Year Completed

APPROPRIATE ACQUISITION OF DAILY LIVING SKILLS AND/OR Provider Agency and Position FUNCTIONAL VOCATIONAL EVALUATION (e.g., self-care, home repair, home health, money, independent living, job and career interests, aptitudes and skills) Goal #(s) if appropriate

Date/Year to be Addressed

Date/Year Completed

LINKAGES TO AFTER GRADUATION SUPPORTS/SERVICES (e.g. DRS, DMH, DSCC, Provider Agency and Position PAS, SASS, SSI , WIC, DHCFS, Clls)

Goal #(s) if appropriate

Date/Year to be Addressed

Date/Year Completed

HOME-BASED SUPPORT SERVICES PROGRAM

f i ves or No L......! I The student has a developmental disability and may become eligible for the program after reaching age 18 and when no longer receiving special education services.

If yes, complete the following statements: Plans for determining the student's eligibility for home-based services:

Plans for enrolling the student in the program of home-based services:

Plans for developing a plan for the student's most effective use of home-based services after reaching age 18 and when no longer receiving special education services:

IS BE 37-441 (7/07) Illinois State Board of Education. Special Education Services, 100 North First, Springfield, IL 62777-0001

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STUDENT NAME:-------------------DATE OF MEETING:-----------

FUNCTIONAL BEHAVIORAL ASSESSMENT (AS APPROPRIATE) Complete when gathering Information about a student's behavior to detennlne the need for a Behavioral Intervention Plan. When used In developing a Behavioral Intervention Plan, the Functional Behavioral Assessment must be reviewed at an IEP meeting and should be attached to the IEP.

The Functional Behavioral Assessment must include data collected through direct observation of the target behavior. Attach documentation of data collection.

Particlpant/TlUe ParUclpant/Trtle

Student's Strengths -Include a description of behavioral strengths (e.g., ignores inappropriate behavior of peers, positive interactions with staff, accepts responsibility, etc.)

Operational Definition of Target Behavior - Include a description of the frequency, duration and intensity of the behavior.

Setting -Include a description of the setting in which the behavior occurs (e.g., physical setting, time of day, persons involved.)

Antecedents- Include a description of the relevant events that preceded the target behavior.

Consequences- Include a description of the result of the target behavior (e.g. removed from classroom and did not complete assignment. What is the payoff for the student?)

Environmental Variables -Include a description of any environmental variables that may affect the behavior (e.g., medication, weather, diet, sleep, social factors.)

Hypothesis of Behavioral Function - Include a hypothesis of the relationship between the behavior and the environment in which it occurs.

IS BE 37-44J(7/07) Illinois State Board of Education, Special Education Services, 100 North First, Springfield , IL 62777-0001

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STUDENT NAME:--- ----------------DATE OF MEETING:-----------

BEHAVIORAL INTERVENTION PLAN (AS APPROPRIATE)

Complete when the team has determined a Behavioral Intervention Plan is needed.

Student's Strengths - Describe student's behavioral strengths

Target Behavior Is this behavior aD Skill Deficit or aD Performance Deficit?

Skill Deficit: The student does not know how to perform the desired behavior. Performance Deficit: The student knows how to perform the desired behavior, but does not consistently do so.

Hypothesis of Behavioral Function -Include hypothesis developed through the Functional Behavioral Assessment (attach completed form). What desired thing(s) is the student trying to Slii? OR What undesired thing(s) is the student trying to~?

Summary of Previous Interventions Attempted- Describe any environmental changes made, evaluations conducted, instructional strategy or curriculum changes made or replacement behaviors taught.

Replacement Behaviors- Describe which new behaviors or skills will be taught to meet the identified function of the target behavior (e.g. student will slap his desk to replace striking out at others). Include description of how these behaviors/skills will be taught.

IS BE 37-44K (7/07) Illinois State Board of Education, Special Education Services , 100 North First, Springfield, IL 62777-0001

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STUDENT NAME: _______ _____ ________ DATE OF MEETING: - ----------

BEHAVIORAL INTERVENTION PLAN (AS APPROPRIATE) -"· Behavioral Intervention Strategies and Supports

Environment- How can the environment or circumstances that trigger the target behavior be adjusted?

Instruction and/or Curriculum -What changes in instructional strategies or curriculum would be helpful?

Positive Supports - Describe all additional services or supports needed to address the student's identified needs that contribute to the target behavior.

Motivators and/or Rewards - Describe how the student will be reinforced to ensure that replacement behaviors are more motivating than the target behavior.

Restrictive Disciplinary Measures - Describe any restrictive disciplinary measures that may be used with the student and any conditions under which such measures may be used (include necessary documentation and timeline for evaluation.)

Crisis Plan - Describe how an emergency situation or behavior crisis will be handled.

Data Collection Procedures and Methods - Describe expected outcomes of the interventions, how data will be collected and measured, timelines for and criteria to determine success or lack of success of the interventions.

Provisions For Coordination with Caregivers - Describe how the school will work with the caregivers to share information, provide training to caregivers if needed, and how often this communication will take place.

IS BE 37-44L (7/07) Illinois State Board of Education, Special Education Services, 100 North First, Springfield, IL 62777-0001

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STUDENT NAME:------ ---------- ----DATE OF MEETING: - ---------­GOALS AND OBJECTIVES/BENCHMARKS

Complete for initial IEPs and annual reviews. (Anyone responsible for implementing the IEP (e.g., goals and objectives/benchmarks, accommodations, modifications and supports) must be notified of her/his specific responsibilities.)

REPORTING ON GOALS

The progress on annual goals will be measured by the short-term objectives/benchmarks. Check the methods that will be used to notify parents of the student's progress on annual goals and if the progress is sufficient to achieve the goals by the end of the IEP year:

D Report card r ·l Progress reports 0 Parent conference ll Other (specify) _____ _

CURRENT ACADEMIC ACHIEVEMENT AND FUNCTIONAL PERFORMANCE Results of the initial or most recent evaluation and results on district-wide assessments relevant to this goal; perfor­mance In comparison to general education peers and standards.

~OALS AI\ID OBJECTIVES/BENCHMARKS The goals and short-term objectives or benchmarks shall~ meet the student's educational needs that result from the student's disabil­ity, including involvement fn and progress In the general curriculum, or for preschool students, participation In appropriate activities.

Goal Statement # of

Indicate Goal Area: 0 Academic D Functional 0 Transition Title(s) of Goallmplementer(s)

Short-Term Objective/Benchmark for Measuring Progress on the Annual Goal

Evaluation Criteria

_ __ % Accuracy I # of attempts __......,-

_w_ Other (specify)

Evaluation Procedures

r-, . .-..1.-L_ Observation Log _D_ Data Charts , . ., --'..-L Tests _j: l_ Other (specify)

Short-Term Ob)ectlve/Benchmai'k for Measunng Progress on the Annual Goal

Evaluation Criteria

% Accuracy __i__ #of attempts __LL_ Other (specify)

Evaluation Procedures

__ [] __ Observation Log _[1--!...._ Data Charts __il Tests n_ Other (specify)

Short-Term Objective/Benchmark for Measuring Progress on the Annual Goal

Evaluation Criteria

__ % Accuracy __j__ # of attempts _D_ Other (specify)

Evaluation Procedures

_il_ Observation Log _.D_ Data Charts __D._ Tests _D_ Other (specify)

Illinois Learning Standard: #

Schedule for Determining Progress

Daily Weekly Quarterly Semester Other (specify)

~cnedUie tor Determining Progress

_CL__ Daily _D_ Weekly _D._ Quarterly __ L.l_ Semester .....il_ Other (specify)

Schedule for Determining Progress

_D_ Daily _.D._ Weekly _[]_Quarterly ..ll_ Semester ....D__ Other (specify)

Dates Reviewed/ Extent of Progress (Optional)

Dates Reviewed/ Extent of Progress (Optional)

Dates Reviewed/ Extent of Progress (Optional)

ISBE 37-44M (7/07) Illinois State Board of Education, Special Education Serv1ces, 100 North First, Springfield , IL 62777-0001

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STUDENT NAME:------ -------- - - ---DATE OF MEETING:----------­

EDUCATIONAL ACCOMMODATIONS AND SUPPORTS

Complete for lnitiaiiEPs and annual reviews. (Anyone responsible for implementing the educational accommodations must be notified of her/his specific responsibilities).

TRANSITION .·.

DYes 0No 0 NA Consideration of service needs, goals, and support/services is required (by age 14 ~ , the team must address transition service needs). If yes, complete the " Transition Services" section of the IEP.

0 Yes 0 No DNA Consideration of "Home-Based Support Services Program for Mentally Disabled Adults" for eighteen-year-old student is required. If yes, complete the "Home-Based Support Services Program" section of the IEP.

CONSIDERATION OF SPECIAL FACTORS

Check the boxes to indicate if the student requires any supplementary aids and/or services due to the following factors. For any box checked "yes," spe~lfy the special factors in the "Supplementary Aids, Accommodations and Modifications" section listed below.

D Yes 0 No assistive technology devices and services

[] Yes C.:: No communication needs

D Yes 0 No deaf/hard of hearing - languages and communication needs

DYes [] No limited English proficiency -language needs

0 Yes ["J No blind/visually impaired - provision of Braille instruction DYes D No behavior impedes student's learning or that of others. If yes. the team must consider strategies, including positive

r-·- 0 L_jYes L_ No

[-=:1 Yes lJ No

behavioral interventions and supports to address behavior. This may Include a Functional Behavioral Assessment and/or a Behavioral Intervention Plan. If so, attach any completed forms.

LINGUISTIC At.ID CULTURAL ACCOMMODATIONS

The student requires accommodalions for the IEP to meet her/his linguistic and cultural needs. If yes, specify any needed accommodations:

Special education and related services will be provided in a language or mode of communication other than or in addition to English. If yes, specify any needed accommodations:

·. SUPPLEMENTARY AIDS. ACCOMMODATIONSr AND.MODIFICATIONS ;

Specify what aids, accommodations, and modifications are needed for the child to make progress toward annual goals, to progress in the general education curriculum, participate in extracurricular and other non-academic activities, and to be educated and participate with other children with disabilities and/or nondis­abled children (e.g., accommodations for daily work. environmental accommodations, moving from class to class, etc.). Supplementary aids, accommodations, and modifications must be based upon peer-review research to the extent practicable.

[]Yes D No

· · SUPPORTS FOR SCHOOL PERSONN_EL

Program trainings and/or supports for school personnel are needed for the studetrt to advance appropriately toward attaining the annual goals, participate in the general curriculum, and be educated and participate with other students in educational activities. If yes, specify what trainings and/or supports are needed, Including when appropriate, the Information that clarifies when the trainings and/or supports will be provided, by whom, in what location, etc.

IS BE 37-44N (7/07) Illinois State Board of Education, Special Education Services, 100 North First. Springfield, IL 62777-0001

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STUDENT NAME: ______ _____ _________ DATE OF MEETING:--- --------

ASSESSMENT

CLASSROOM-BASED ASSESSMENtS

0 Yes 0 No Student requires accommodations to participate in classroom-based assessments.

D Yes D No Student requires alternate assessment/methods to participate in classroom-based assessments

DISTRICT-WIDE ASS~SSMENTS

0 District does not administer district-wide assessments

0 District does not administer district-wide assessments at this grade level: __

Student will: 0 Participate in the entire district-wide assessment with no accommodations

LJ Participate in the entire district-wide assessment with accommodations

LJ Participate in part(s) of the district wide assessment (specify)

[J Participate in the district-wide alternate assessment

.. · · STATE ACADEMIC ASSESSME.NTS

The State academic assessments are the Illinois Standards Achievement Test (ISAT) at grades 3-8 and the Prairie State Achievement Exam (PSAE) at grade 11, Illinois Measure of Annual Growth in English (IMAGE) In grades 3-8 and 11 (for English Language Learner (ELL) students), and Illinois alternate Assessment (IAA) in grades 3-8 and 11 .

LJ State academic assessments are not administered at this grade level: __

Student will:

D Participate in the ISAT/PSAE/IMAGE with no accommodations

D Participate in the ISAT/PSAE/IMAGE with accommodations

D Participate in the IAA

If the student will participate In the IAA, the following were met:

[J The ISAT/PSAE/IMAGE is not appropriate (specify)

[J The IAA participation guidelines were met

[J The alternate assessment selected is appropriate for the student (explain)

STATE ASSESSMENT OF LANGuAGE PROFICIENCY

The State assessment of language proficiency is Assessing Comprehension and Communication in English State to State (ACCESS) in grades K-12

D D Yes ,_No ENGLISH LANGUAGE LEARNER (ELL). If "NO", skip to next section Student will:

D participate in the ACCESS with no accommodations

[] participate in the ACCESS with accommodations

A$SESSMENT ACCOMf!IODATIONS

If the student is participating in any of the above assessment(s) with accommodations, specify the needed accommodations (e.g., extended time, alternate setting, auditory testing) necessary to measure the student's academic achievement and functional performance. The accommoda­tions should be appropriate for that particular assessment and reflective of those already idenUfled for the student in the Supplementary Aids, Accommodations, and Modifications section.

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STUDENT NAME:-------------------DATE OF MEETING: ----------­EDUCATIONAL SERVICES AND PLACEMENT

Initiation Date: __ / __ / __ Duration Date: __ / __ / __

PARTICIPATION IN GENERAL EDUCATION CLASSES

The IEP must address all content areas, classes, and specify if the student will participate in general physical education. General Education with No Supplementary Aids Minutes Per Week (Specify content areas, classes, whether or not the child will participate in general physical education, and extracurricular in Setting and other nonacademic activities.) (Optional)

General Education with Supplementary Aids (as specified in the Supplementary Aids section) Minutes Per Week (Specify content areas, classes, whether or not the child will participate in general physical education. and extracurricular in Setting and other nonacademic activities with supports, if applicable.) (Optional)

Special Education and Related Services within the General Education Classroom Minutes Per Week (Specify content areas and classes in which the child will participate with the provision of special education and in Setting related services List each special education and related service that will be provided during each class.)

., PARTICIPATION IN SPECIAL EDUCATION CLASSES/SERVICES

The IEP must address all special education and related services.

Special Education Services - Outside General Education Minutes Per Week in Setting

Related Services - Outside General Education Minutes Per Week in Setting

Educational Environment (EE) Calculation (Ages 3-5) Educational Environment (EE) Calculation (Ages 6-21 )

1. Minutes spent in regular early childhood program.

2. Minutes spent receiving special education and related services outside regular early childhood (A + B)

___ 1. Total Bell to Bell Minutes

2. Total Number of Minutes Outside of the General Education Setting (A + B)

IS BE 37-44P (7/07) Illinois State Board of Education, Special Education Services, 100 North First, Springfield, IL 62777-0001

A.

B.

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STUDENT NAME: - ------------------ DATE OF MEETING:--- - ------ ­EDUCATIONAL SERVICES AND PLACEMENT

EDUCATIONAL ENVIRONMENT CONS1DERATIONS To the maximum extent appropriate, all students shall be educated and participate with students INho are norHlisabled. Provide an explanation of the extent if any, to which the student will not participate in general education classes and activities.

D Yes 0 No Special education classes, separate schooling, or removal from the regular education environment Is required because the nature or severity of the student's disability is such that education in general classes with the use of supplementary aids and services cannot be achieved satisfactorily.

D Yes 0 No

D Yes 1 "j No

Explain: ___ _________ ___ _____________ __________ _

Will participate in nonacademic activities with nondisabled peers and have the same opportunity to participate in extracurricular activities as nondisabled peers.

If no, explain:·---------- - ------------------------ --

Will attend the school he or she would attend if nondisabled.

If no, explain: _______________________ _____________ _

PLACEMENT CONSIDERATIONS 'When determining the placement, consider any potentially harmful effect either on the student or the quality of services that he/she needs. After determining the student's placement, complete the 'Piacemenr section on this cover sheet.

[""""!Yes 0 NA For a child who is deaf, hard or hearing, blind or visually impaired, parents have been informed of existence of the Illinois School for the Deaf or the Illinois School for the Visually Impaired, and other local schools that provide similar services._

PLACEMENT OPTIONS CONSIDERED POTENTIALLY HARMFUL EFFECT/

TEAM ACCEPTS PLACEMENT REASONS REJECTED

Check all that apply

D Yes 0 No

D Yes 0 No

DYes C No

TRANSPORTATION

Special transportation is required to and from schools and/or between schools.

Special transportation is required In and around school buildings.

Specialized equipment (such as special or adapted buses, lifts, and ramps) is required

EX.T!Nbl;o scRooL YEAR SERV!CES

D Yes ,........., UNo

D Yes L] No

[J Yes ,--· ..._~ No

r-j_jYes Extended school year services are needed. The IEP team must document the consideration of the need for extended

school year services and the basis for the determination.

If yes, the IEP must Indicate the type, amount and duration of services to be provided.

SPECIAL EDUCATION LOCATION AMOUNT/FREQUENCY INITIATION OF DURATION OF GOAL(S) SERVICE(S) OF SERVICES SERVICES SERVICES ADDRESSED

IS BE 37-440 (7/07) IllinOIS State Board of Educat1on, Spec1al Educat1on Services, 100 North F1rst. Springfield, IL 62777-0001

69

STUDENTNAME: _______________________________________ DATEOFMEETING: ____________________ _

MANIFESTATION DETERMINATION (AS APPROPRIATE)

Complete when determining whether a student's behavior was a manifestation of her/his disability.

Disability:

lncident(s) that Resulted in Disciplinary Action

The Student's IEP and Placement (include a review of all relevant information in the child's file, including the child's IEP)

Observations of the Student (include a review of staff observations regarding the student's behavior)

Information provided by the Parents (indude a review of any relevant information provided by the parent(s)

Based upon the above Information, the team has determined that:

......., D u Yes No The conduct was caused by or had a direct and substantial relationship to the student's disability.

The conduct was the direct result of the school district's failure to implement the I EP. r-. l"""i L._} Yes L..J No

If "Yes" to either of the above, the behavior must be considered a manifestation of the student's disability.

Check the appropriate box:

D

D

The student's behavior WAS NOT a manifestation of her/his disability. The relevant disciplinary procedures applicable to students without disabilities may be applied to the student in the same manner in which they are applied to students without disabilities. If the district initiates disciplinary procedures applicable to all students, the district shall ensure that the special education and disciplinary recorr:Js of the student with a disability are transmitted for consideration by the person or persons making the final determination regarr:Jing the disciplinary action.

The student's behavior WAS a manifestation of her/his disability. The team must review and revise the student's IEP as appropriate and the district must take appropriate action. A functional behavior analysis will or has been completed. The behavior intervention plan shall be completed or modified/reviewed as required to address behavior.

ISBE 37-44R (7/07) Illinois State Board of Education, Special Education Services, 100 North First, Springfield, IL 62777-0001

70

STUDENT NAME: - - -----------------DATE OF MEETING:--------- --REPORT OF PROGRESS ON ANNUAL GOALS (OPTION 1)

Specify the extent to which the student's progress is sufficient to enable the student to achieve the goals by the end of the IEP year. Districts may use this page to report on student progress OR may use the option two page that would include data charts to indicate a student's progress.

Student's Name Type of Report

Date D1D2D3D Report Card Quarter

Staff Name Progress Report 0102030 Quarter

Title D Parent Conference

GOAL REPORT OF PROGRESS: MEASU RABL.e ANlllUAL GOAL Making Not Making ADDITIONAL COMMENTS

NUM.aER' Completed Expected · Expected Pr()gress Progress

ISBE 37--44 T (7/07) mlnols Sta1e BnarrJ o f Education, Special Education Services, 100 North First, Springfield, IL 62777-0001

71

STUDENT NAME: -------------------DATE OF MEETING: ----------­REPORT OF PROGRESS ON ANNUAL GOALS (OPTION 2)

Specify the extent to which the student's progress is sufficient to enable the student to achieve the goals by the end of the IEP year. Districts may use this page to report on student progress OR may use the option one page.

Student's Name Type of Report

Date Report Card 01020304 Quarter

Staff Name Progress Report 01020304 Quarter

Title D Parent Conference

GOAL ... MEASURABLE ANNUALGOA:L. REPORT OF PROGRESS NUMBER (INSERT DATA CHARTS)

-ISBE 37-44U (7/07) IllinOIS State Board of Educ:alklll. Spac!al Edlu:alioo Sarvlces. 100 Nocth f<1rst, Spnngfield, IL 62777-0001

72

STUDENT NAME: - - -----------------DATE OF MEETING:------ -----

--- --------·- - -- - - -------·----.. · ..

ISBE 37-44S (7/07) Illinois State Board of Education, Special Education Services , 100 North First, Springfield, IL 62777-0001

73

PARENT/GUARDIAN NOTIFICATION OF INDIVIDUALIZED EDUCATION PROGRAM AMENDMENT

DATE:-------STUDENT'S NAME: __________ STUDENT'S DATE OF BIRTH:------

* Use this form to document that the parent and school district agreed to make changes to the IEP without recon­vening the IEP meeting. This cannot take place of an annual review meeting and the form must be attached to the child's IEP.

Dear ___ ~~-~~---------(Parent(s)/Guardian(s) Name)

On ____ -=~~~~~-----youand _______ ~~~~~--~-=~-------(Date of Contact) (School District Personnel and Title)

D met in person D spoke on the phone D exchanged e-mails D exchanged faxes

and agreed to make the following changes to your child's current IEP as indicated below.

Changes and Explanation of Changes:

Enclosed is a copy of your child's current IEP along with the changes. The changes will beg in on--------­and be implemented in your child's current placement.

If you disagree with the changes, want to request a meeting to discuss the changes above, or want to request a copy of Explanation of Procedural Safeguards, please contact the person indicated below with any questions in regards to the above changes.

Name: _______________ Title: ____________ Phone: ---------

Sincerely,

(Signature) Name: ________________ _

Title:----------------

ISBE 34-57G (4/08)

OBSERVATION

OF PROGRAMS

BY PARENTS

AND EXPERTS

Whitted Cleary & Takiff LLC 3000 Dundee Road, Suite #303

Northbrook, Illinois 60062 847.564.8662

Fax: 847.564.8419 www.wct-law.com

74

Enclosed please find excerpts from the above captioned new law, effective August 25,

2009. You probably are already aware that public school districts must allow observation by

parents and their retained experts or other qualified professionals. There is an evolving

procedure for submitting requests for observation in writing, then agreeing to an appropriate

time for the observation. These procedures, as they continue to be adopted by school

districts, should not be so rigid or constrained that the observation is rendered meaningless.

The school district should be reasonably flexible in allowing observations that, of course, are

not disruptive and that do not interfere with the education of other students. This law does

not apply to private schools.

75

76

Public Act 096- 0657

PROVIDED FOR YOUR INFORMATION

BROOKE R. WHITIED

HB0628 Enrolled LRB096 07454 NHT 17546 b

2804 (Pub

forth the

Individua.

2004 (Pub:

notice sh;

PUBLIC ACT 96-0657 (EXCERPT)

REGARDING mandated observation of edu­cational programs by parents & professionals

;ibili ty of

:es setting

:he federal

!Dt Act of

)Oards . The

>ili ty upon

request of a ~~st o! tree or low- cost legal and other relevant

services available locally to assist parents in initiating an

impartial due process hearing . Any parent who is deaf , or does

not normally communicate using spoken English , who

participates in a meeting with a representat ive of a local

educational agency for the purposes of developing an

i ndividualized educational program shall be entitled to the

services of an interpreter .

(g-5) For purposes of this subsection (g-5) , "qualified

professional " means an individual who holds credentials to

evaluate the child in the domain or domains for which an

evaluation is sough t or an intern working under the direct

supervision of a quali fied professional , including a master ' s

or doctoral degree candidate .

To ensur e t ha t a parent can participate fully and

effectively with school personnel in the development of

appropriate educational and related services for his or her

child , the parent , an independent educational e~aluator , or a

qualified professional retained by or on behalf of a parent or

child must be afforded reasonable access to educational

77

Public Act 096-065 7

HB0628 Enrolled LRBO 96 0 7 4 54 NHT 17 54 6 b

facilities , personnel, classrooms, and buildings and to the

child as provided in this subsection (g- 5) . The requirements of

this subsection (g-5) apply to any public school facili tv,

building, or program and to any facility , builciing , or program

supported in whole or in part by public funds. Prior to

visiting a school , school building, or school facility , the

parent , independent educational evaluator, or qual ified

professional may be required by the school district to inform

the building pri ncipal or supervi s or in writing of the proposed

visit , the purpose of t he visit , and the approximate duration

of the visit . The visitor and the school district shall arranae

the visit or visits at times that are mutually agreeable .

Visitors shall comoly with school safet y, securi t y, and

visitation policies at all times. School district visitation

poli cies must not conflict with this subsection (g- 5) . Visitors

shall be required to comply with the requirements of applicable

privacy laws , including those laws protecting the

confidentiality o f education records such as the federal Family

Educational Rights and Privacy Act and the Illinois School

Student Records Act. The visitor shall not d i srupt the

educational process .

( 1) A parent must be afforded reasonable access of

sufficient duration and scooe f o r the purpose of observing

his or her child ln the child's curre~t educational

placement, services, or proqram or for the purpose of

visiting an educational placement or prooram proposed for

78

public Act 096-0657

HB0628 Enrolled LRB096 07454 NHT 17546 b

the child .

( 2) An independen t educational evaluator or a

qualified professional retained by or on behalf of a parent

or child must be afforded reasonable access of sufficient

duration and scope for the ourpose of conducting an

evaluation of the child , the child ' s performance , the

child ' s current educational program, placement , services ,

or environment , or any educational p rogram, ola cement,

services , or environment proposed for the child, including

interviews of educational personnel , chi ld observations ,

assessments , tests or assessments of the child ' s

educational program, services , or olacement or of any

o r ooosed educa tional program , services , or placement. If

one or more interviews of school personnel are part of the

evaluation , the interviews must be conducted at a mutually

agreed upon time, date , and place that do not interfere

with the school employee ' s school duties . The school

district may limit interviews to personnel having

information r elevant to the child ' s current educational

services , proqram, o r p lacement or to a proposed

educational service , program, or p acement .

PUBLIC ACT 96-0657 Citation:105/LCS 5114-8.02(g-5)

EFFECTIVE DATE: AUGUST 25. 2009 Whitted, Cleary & Takiff LLC

3000 Dundee Road Suite303

Northbrook, Illinois 60062 Phone: (847) 564-8662

Fax: (847) 564-8419

: Response to Intervention and its legal implications

Response to

Intervention

and its Legal

Implications

Whitted Cleary & Takiff LLC 3000 Dundee Road, Suite #303

Northbrook, Illinois 60062 847.564.8662

Fax: 847.564.8419 www.wct-law.com

79

Ever since the reauthorization of the Individuals with Disabilities Education Improvement Act

in 2004 (“IDEIA”), the term “Response to Intervention,” or “RTI” has become the new buzz

word in special education circles, as related to the identification and treatment of Specific

Learning Disabilities (“SLD”). The IDEIA statute now specifies that when school districts are

determining a child’s eligibility under the category of “Specific Learning Disabilities,” they

“may use a process that determines if the child responds to scientific, research-based

intervention as a party of the evaluation procedures.” (20 U.S.C. 1400 § 614(b)(6).

In addition, the new IDEIA regulations published in August of 2006 specifies that states, when

adopting criteria for determining whether a child has an SLD “Must permit the use of other

alternative research-based procedures,” and stated that the IEP team may identify a child as

having an SLD if “The child does not make sufficient progress to meet age or State-approved

grade-level standards in one or more of the areas… when using a process based on the

child’s response to scientific, research-based intervention.” In addition, in order to rule out

that the child’s LD is not due to lack of appropriate instruction in reading or math, the IEP

team “must consider… data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction,

which was provided to the child’s parents.”

But what is RTI? An internet search of the term will provide you phrases such as “systematic

and data-based set procedures,” “tier system,” and “scientifically-based curriculum,” but none

of them really explain what RTI is or how it will benefit children.

In a broad sense, RTI is a teaching methodology1 which, when properly implemented, will

allow a school to take a proactive (rather than reactive) approach to identifying children

performing below grade level and who may have some type of disability. The ultimate goal of

RTI is to identify and provide early intervention services for children who are “at risk” for

developing disabilities later in their academic career.

Background:

Research has developed two main models of practice for Response to Intervention: 1) The

Standard Treatment Protocol and 2) the Problem-Solving Model (a.k.a. the Heartland Model).

These models were originally created, and

have only been scientifically proven, to focus on the early intervention and identification of

learning disabilities. So, the trick has been to generalize the “three-tiered” systems so that

they can be implemented for the identification and treatment of all disability categories.

Here’s what a typical three-tier system looks like:

1 These methodologies are “scientifically based,” meaning that they are based on research which includes: a)

systematic, empirical methods, b) rigorous data analyses that test the hypothesis and justify the general

conclusions drawn, c) reliance on measurements or observational methods that provide reliable and valid data

allowing for replication, and d) acceptance by a peer-reviewed journal or panel of independent experts. 20

U.S.C. 7801 § 9101, the federal Elementary and Secondary Education statute.

80

All children start on Tier 1, which involves regular education teachers providing the same

core curriculum in a subject area to all of their students. After beginning this curriculum, the

teacher then conducts brief, Curriculum-Based Measurements (“CBMs,”) which are short,

timed assignments individually administered within the classroom to assess how each child is

progressing.

If the teacher identifies children who are not performing at grade level, then the teacher is to

identify the reason(s) each child is struggling and provide more intensive instruction to those

children. At the Tier 1 stage, this additional instruction is termed “universal interventions,” as

they are broad enough to apply to all children, regardless of each child’s specific deficit areas.

After applying this additional instruction, the teacher would once again conduct CBMs for all

of the “at-risk” students, to determine if they had progressed to grade level.

If not at grade level, the students would then move up to the second tier of the system. At

this point in the process, additional supports are brought into a regular education classroom

to target the specific deficits of the child, in the hopes of remediating some of those deficits.

Depending on the child’s specific deficits, examples of these interventions could include

additional remediation in a specific subject, additional emotional supports (e.g. social work

services), or behavioral supports (e.g. behavioral plan). These services would be implemented

in small groups (up to five students) for approximately 30 additional minutes a day2, and

would be monitored on a weekly basis. After a given amount of time,3 if the child

still does not appear to be responding to additional supports, they would move to Tier 3.

Many educators approach Tier 2 activities as “pre-referral” interventions.

It is here, between tiers 2 and 3, that a child would most likely be referred for a full case

study evaluation to determine if they are eligible for special education services.

2 RtI instruction is to be implemented as a supplement to a child’s regular school curriculum, not in replacement

of it. 3 There is no specification of how long each tier should last, however time frames mentioned in research articles

indicate anywhere from 8 – 16 weeks for Tier 2 and longer for Tier 3.

Tier 3: Remedial/

Intensive Instruction

and Interventions

(5% of children)

Tier 2: Targeted

Instruction and

Interventions

(15% of children)

Tier 1: Universal

Interventions

(80% of children)

Regular ed

with supports

Special

education

Regular

education

81

Tier 3 instruction is described as “high intensity/high frequency” instruction directed at

students who have “significant difficulties” who have failed to respond to Tier 1 and Tier 2

interventions. This “high intensity” instruction is to be given in small groups (1 – 3 students)

for at least 60 additional minutes a day, with at least weekly progress monitoring (twice

weekly is preferential). The hope is that eventually, with this “high intensity” instruction,

children will gradually slide back down the pyramid to grade level. However, it will be

inevitable that some children will never be able to function at grade level. Yet none of the

current research provides guidance on what the next steps are for this group of children.

What model of RTI does Illinois utilize?

Illinois does not currently have a finalized RTI model for school districts to utilize. Although,

Illinois is in the process of a five-year (2005 – 2010) study entitled the Illinois ASPIRE4 Project,

funded by the U.S. Department of Education and run by the Illinois State Board of Education

(“ISBE”), to coordinate a regionalized RTI5 model in Illinois for districts to utilize when

implementing interventions. This program has trained and identified specific “RTI/Problem Solving trainers” located throughout the state who currently are available to districts for

training in the implementation of RTI.

As the ASPIRE project continues in its early developmental stage, ISBE has yet to develop a

uniform set of guidelines for school districts to begin implementing a unified RTI model. This

is one of the reasons why Illinois’ proposed special education regulations were rejected in

January 2007 – these proposed regulations originally mandated that school districts utilize RTI

prior to the identification of students with learning disabilities without appropriate (and

uniform) guidance, and school administrators as well as parent advocates have agreed that

this would be impossible. In response to these objections, ISBE changed the deadline for the

mandate to utilize RTI to the 2010 – 2011 school year, at which time the ASPIRE project will

be completed and guidelines will be published.

New language within Illinois’ recently-revised special education regulations also indicates,

however, that the district cannot deny parents a full case study evaluation (“CSE”) based on

the child’s participation in RTI. In addition, Illinois also indicated that school districts still “may

use a severe discrepancy between intellectual ability and achievement for determining

whether a child has an [SLD].”

Current Legal Implications:

To date, only a few state cases litigated RTI issues, including California, Colorado,

Pennsylvania, and Illinois, and those have been limited to the administrative level.

The two decisions which have been rendered in Illinois are Yorkwood Community Unit School

District 225, 46 IDELR 235 (Ill. SEA, September 25, 2006) and Deerfield School District #109, 46

IDELR 90 (Ill. SEA, February 3, 2006). In Yorkwood, Hearing Officer Janet Kidd found in favor

of the school district who argued that, after implementation of specialized interventions

(including RTI), one of its students was no longer eligible for special education services as her

disabilities were no longer impacting her ability to benefit educationally. Ms. Kidd found that

4 Alliance for School-Based Problem-Solving and Intervention Resources in Education 5 Also referred to in Illinois as the “School-Based Problem Solving,” or “Flexible Service Delivery,” models.

82

the district’s reliance on “scientifically-based intervention and measurement techniques

moved [the student] out of the realm of special education and back into the general

education classroom. This is not only in accordance with the letter of IDEIA, but with its

spirit as well.”

In Deerfield, hearing officer Susan Cox found in partial favor of the school district in

determining whether it provided FAPE to a child within their homeschool. Ms. Cox addressed

the issue of the difficulty of identifying a young child (in this case, an eight-year-old) positively

for a learning disability, and agreed that utilizing a RTI approach was a “better method” than

using the IQ discrepancy model currently utilized by many school districts.

The remaining administrative hearing cases decided in other states generally appear to defer

to the use of RTI because of its inclusion in the IDEIA. A Pennsylvania administrative officer

found a school district’s re-evaluation of a child “fatally flawed” because it did not follow “the

prescribed protocol for an RTI process” Upper Darby School District, 106 LRP 60495 (Pa. SEA,

September 12, 2006). A Colorado hearing officer also suggested that if a district or special education cooperative was going to utilize an RTI approach, then they should “[meet] with

the Complainants to explain in detail the RTI model and answer any questions the

Complainants may have around the RTI model and special education eligibility.” Pikes Peak

BOCES, 106 LRP 42562 (Co. SEA, June 19, 2006)

In contrast, several California administrative hearing decisions seem to indicate that despite

RTI’s current popularity in the education community, it is not the “end all, be all” for

appropriate diagnosis of special education.

In High Tech Middle Media Arts School and Desert Mountain SELPA, 47 IDELR 114 (Ca. SEA,

February 8, 2007) the hearing officer indicated that “this RTI method of determining SLD is

not a test or procedure that must be conducted with every child … but is instead a way to

explore whether a child’s underachievement is a result of a disability…” (emphasis added).

One administrative law judge went further in Etiwanda Unified School District, 107 LRP 16067

(Ca. SEA, March 15, 2007) and stated that the RTI additions to the 2004 IDEIA

reauthorization “do not equate to a change in the substantive definition of SLD that

eliminated the requirement of a ‘severe discrepancy’ between academic achievement and

intellectual ability. Instead… [it] merely permits a local education agency to use the RTI

method as alternative to the ‘severe discrepancy’ method when determining SLD eligibility.”

Another California administrative law judge, in Capistrano Unified School District, 107 LRP 7427

(Ca. SEA, January 2, 2007) emphasized the new IDEIA language which indicated that “An RTI

process does not replace the need for a comprehensive evaluation. A public agency must use

a variety of data gathering tools and strategies even if an RTI process is used.”

While it appears that Congress had good intentions when adding RTI into the newly

reauthorized IDEIA, (much like the No Child Left Behind Act) it will take years for states and school districts to become well educated enough to accurately implement these models with

the consistency and precision needed in order to be effective on a large scale basis.

83

SPECIAL

EDUCATION:

THE RIGHTS &

RESPONSIBILITIES OF

PARENTS

Whitted Cleary & Takiff LLC 3000 Dundee Road, Suite #303

Northbrook, Illinois 60062 847.564.8662

Fax: 847.564.8419 www.wct-law.com

84

85

--------- -- ---- ----

Special Education:

An Introduction to the Individuals With Disabilities

Education Act (IDEA) Neal Takiff WHITTED CLEARY & TAKJFF LLC

"EDUCATION"

I-FREE

• A PPROPRIATE

•Pusuc

•EDUCATION

o0200l! byWh.itted, CJ-.y & TMUI.Ll C.M rlghb .--d

i~~ FREE -

• NO CHARGE TO

• STUDENT OR HIS FAMILY

• PARENTS OR GUARDIAN

• PARKS V. PA VKOVIC:

"FREE MEANS FREE"

• IRRELEVANT WHO'S PAYING -- ----

C2008 byWhintod,C~ & Tt~kHf.lLC.i\Pr~r_,ved

86

APPROPRIATE

~WLEY CASE: ACCORDING TO I EACH STUDENT'S UNIQUE NEEDS

• THE FACTS OF ROWLEY

------ --------------------------C2008byWhill&d, Ciaary&TaiUII,llC. AIIrlght..~

PUBLIC

P ROVIDED -OR--

• PAID FOR -BY--

• A PUBLIC SCHOOL DISTRICT (LOCAL EDUCATION AGENCY "LEA'}

EDUCATION THE ROWLEY CASE- ESTABLISHING EDUCATIONAL BENEFIT

Standard for Special Education Services- ~some educational benefit~

- Not the MAXIMUM, not th e bare minimum - Not a "Cadillac," just a serviceable "Chevy.''

Two-Prong Legal Analvsis

1. PROCEDURAL: Has the district complied with the procedural requirements of the Act?

2. SUBSTANTIVE: Is the IEP " Reasonably Calculated" to confer educational benefit?

Procedural Violation- Must result in a deprivation of educational opportunity in order to be actionable

Cl2008by Whifted,Ciouty &l-"ll, llC.AIIrightllr~.

87

EDUCATION • Disability category should NEVER drive

services

• IEPs must be individualized- Districts must NEVER state that they provide "set" services or that they "don't provide" a requested service.

• "Consider" all requests - Even under Lachman

PRACTICAL APPLICATION OF

SPECIAL

EDUCATION LAW

The Process of Obtaining Special Education Sery[ces

[ Child Find respons~ilities- affirmative duty

• Referral for initial Case Study Evaluation (CSE)

-May be made by a parent, employee of school district, ISBE, another State agency, or a community service agency

- RTI does not delay district's need to respond to a parent request for CSE

88

Response to Intervention I - -T A word about RTI .. ..

------------------------- -----------Cl2008byWhitted,Cieary & Takjii, LLC. AII rights resei'Yed

The Process of Obtaining Special Education Services

District has 14 days to respond to parents requesting case study evaluation -Parents can request a due process hearing to

contest district's refusal to conduct CSE

-If District agrees, parent must sign consent for evaluations (domain meeting)

-Date parents sign starts the 60 school day timeline

Is a Denial of a CSE Justified?

Grades

Behavior

• Peer relationships

Emotional well being

Attendance

Home Issues

Court Involvement

Drug and Alcohol Issues

• Hospitalizations

C2008 by WtlitNd, C'-ry& Tellil, LLC . All righi!II81!181Ved

89

Is a Denial of a CSE Justified?

Isolated Incidents: Two suicides not enough when behavioral assessments within the average range, depression in remission, no difficulties with peers or teachers, above-average grades St. Joseph-Ogden Comm. H.S. Dist. No .305 v. ISBE, 49 IDELR 125 (Jan 17, 2008).

Medical diagnosis has to constitute a disability under the IDEA , mere medical diagnosis does not qualify)(Aiopecia Areata). Bloom Township HS Dist. 206, 112 LRP 21291 (April23, 2012

Cl2008 by Whltled,Ct-y& Tal<.it', llC. AI r'.ghb l_.,.ed,

Is a Denial of a CSE Justified? r '!Educational performance" means more than a child's

ability to meet academic criteria. It must also include reference to the child's development of communication skills, social skills, and personality, as the Code, itself, requires. 34 CFR 300.533(a)(1); Mary P. v. ISBE, 919 F. Supp. 1173 (N.D. Illinois 1996).

Truancy does not automatically exclude special education. Emotional disturbance should be evaluated independently.

Drug and Alcohol Issues: Can be self-medication of _ldn£1erlyirm ernojional issues.

C> 200& try WMied,C'-t)' & f•klfl' , LLC . AM righlaree«Ved

The Process of Obtaining Special Education Services

Conference is then held to determine eligibility

• If eligible, an IEP is written for the child within 30 days of eligibility determination

• Initial placement decision made

• School must wait 10 days before placement and services are made (parents can wglv~_ tl}i? waiti.Dg peripd)

W€.mmT.~·"""' C>2008b)' Whitt<!d,C....,. & l*'<iii, LLC. All righf1o reserved.

90

Least Restrictive Environment

~ What is LRE?

• What is the range of educational placements?

• Mainstreaming? Inclusion? Is it required? When?

• What is the test according to the 71h

Circuit?

?th Circuit Test

• "The Act itself provides enough of a framework for our discussion; if Beth's education at Lake Bluff Middle School was satisfactory, the school district would be in violation of the Act by removing her. If not, if its recommended placement will mainstream her to the maximum appropriate extent, no violation occurs."

IC'2003 by Whil:t<xi,Cie$!y f, TM\lfl, l lC. AR 1\gl'ob ,_...,_

Satisfactory? ~-----

T Time in class

• Progress in goals

• Where is learning occurring

• Behaviors

• Accessing curriculum/mainstream environment

C200e b)' Wllilte<I,CM'y & Tllkiii. LLC.AIIrighlt. r--..ec:!.

91

TDS vs. Home School

t Can the student's needs be met in th: mainstream (home school) setting, i.e. will they get a satisfactory education? -What benefit will the child receive from access

to non-disabled peers

-Can they access that benefit

-What level of related services does the student need

C1200Eiby Whi!Md.Ciear)'S.Takiii. LLC .AIIrlghts r.............t

TDS vs. Home School

- Does the district have the appropriate educational services to meet the students needs (life skills, multisensory classes, autism services)

- If already in special education, have they met their goals and objectives

-Private evaluations? Recommendations?

-Discipline, attendance (school refusal anxiety) --·~ scho~s~ong~r ev~ence_than out~ school.:.:.:.

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How Do You Define Progress? Making Sure the IEP is Implemented as Planned

Goals must be measurable

Progress updates

Annua l reviews

Reevaluations

Drafts of reports/goals

School Observation

(l2008 b}'Whifted.C"-Y & TakJII,LLC _AII 11QhU reserved.

92

Measurable? Goal

I Pre~ent Lev:: Perf~rmance: Jimmy struggles in class with focusing and appears sad. He doesn't have relationships with peers and at times will put his head down on his desk.

Goal: Jimmy will improve his self-esteem and classroom functioning throughout all areas of school.

C2008~WM:Ied,Cieary& Takitl, l l C .-Jifigl'lt:tr.--:1

Measurable

Present Level of Performance: What is being measured. What is the starting point Answer these kinds of questions: how many times, what period of time, how many prompts.

• Goal: Where do we end up.

• Benchmarks: Incremental steps to be reached on the way__!o the annua1Jl9al._

C 2008 t:,. Whitted, Cleary ~ Tllkill, UC All righla ~

A Better Goal

• PLEP: During reading, Jimmy is off task for 60% of the class period by either putting his head down or leaving the room for a drink or to use the bathroom.

• Goal: Jimmy will be on task for 90 %of reading class, as measured by school social worker during observation.

02008by WlliCted, Ciewy S. illkil, LLC.AII rigth reM!Ved.

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I

The Process of Obtaining Special Education Services __

r Annual review of IEP

• Three year re-evaluation

• Transfer Students -Must provide comparable services until the

district adopts prior IEP or develops, adopts and implements a new IEP

CZ008by Whitted, Ck:ary& T*"', LLC. AII If9hh reserver:l.

Compensatory _!du~a!~on

J What is it?

• Examples of awards?

• Is it authorized by IDEA?

• When is a student eligible?

• How is amount determined?

• Can it be awarded beyond a student's 22nd birthday?

• What about stay put?

e 201)8 bJ' Wllined,Cieary & T~. lLC . AII rigllls re&O!'Y'Od.

Working with Parents and School Reps to Prevent and Resolve Disputes

Do not allow anger to cloud better judgment -IT USUALLY ISN'T PERSONAL! I

Creative ideas to reduce tension· Change contact people

Listen ing

Communication

Neutral third party evaluator

Mediation

94

COMMON MISTAKES BY SCHOOLS

1. POOR USE OF INTERPERSONAL SKILLS 2. NO FOLLOW-THROUGH 3. NOT ADMITTING YOU WERE WRONG 4. CATEGORICAL TREATMENT('WEDON"TDOTHAT") 5. ZERO TOLERANCE POLICIES (LAWYER"S DREAM) 6. REFUSAL OF MANDA TED SERVICE 7. GRAPHIC PROCEDURAL VIOLATIONS 8. SECRETIVE OR "CLOSED DOOR" CONDUCT 9. TOO MUCH TALKING 10. GREED, AVARICE, SLOTH, GLUTTONY .....

QUESTIONS? r-THANK

YOU!