WILL COUNTY

PROBATION DEPARTMENT

LEGAL UPDATE:

THE 2004 IDEIA

NOVEMBER 2, 2005

RIVER VALLEY JUSTICE CENTER

1 – 4 P.M. BROOKE R. WHITTED

NEAL E. TAKIFF

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

Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX Website: www.whittedclearylaw.com

THE 2004 IDEIA

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

Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX Website: www.whittedclearylaw.com

IDEIA RE-AUTHORIZATION

The new Individuals with Disabilities Education Improvement Act of 2004 (“IDEIA 2004”) was signed into law by the President on December 3, 2004. The Act went into effect on July 1, 2005, with the exception of a few sections1 which went into effect immediately. A full version of the IDEA, with changes highlighted, can be found at

http://www.copaa.net/IDEA/IDEA97-04COMP.pdf.

To date, no action has been taken by the Illinois State Board of Education in response to the reauthorization. However, Illinois legislators are gearing up for taking action and have proposed House Bill 160 (which can be found at www.ilga.gov), which attempts to amend the School Code by prohibiting ISBE from establishing any rules and regulations which conflict with 2or exceed the rules and regulations established by the U.S. Department of Education in IDEIA 2004. Until the Federal rules, currently in draft form during this comment session, are finalized the full impact upon parents and districts is unknown. A summary of the most significant changes in IDEIA follows.

1 These sections are highlighted in the following pages. 2 The rules and regulations to accompany the IDEIA 2004 have been published in draft form and are

in public comment session. Word from Washington is that they will be finalized and published sometime in December 2005, however when the 1997 reauthorization of IDEA occurred, this process took nearly two years.

SUMMARY OF IDEIA 2004 CHANGES

Section Change Impact Purpose: (20 U.S.C. 1400 § 601) Adds language “to the maximum extent

possible” in several sections of the purpose of IDEIA.

Congress has changed the standard for special education students from merely providing “appropriate” services to providing “maximum” services. However, it should be noted that states are still only mandated to provide the current standard of “Free and Appropriate Public Education” (“FAPE”)

Definitions: (20 U.SC. 1400 § 602) Adds language to include foster parents

and “Releasing information to “other relatives” of a child could be a disaster under current state confidentiality laws. Districts will have to be diligent to ensure the information they are releasing to “other family members” who

“Parent” or other relative with whom the child lives or who is legally responsible for the child’s welfare…”

claim to be responsible for the child are in fact within all federal and state exceptions.

Pilot Paperwork Reduction Project: Adds text to allow the U.S. Department of Education to “grant waivers of statutory requirements of, or regulatory requirements relating to, Part B for a period of time not to exceed 4 years with respect to not more than 15 states based on proposal submitted by State to reduce excessive paperwork and non-instructional time burdens that do not assist in improving educational and functional results for children with disabilities.”

Should Illinois be one of the 15 states involved in this pilot program, it is difficult to imagine how it will be possible to decrease the amount of paperwork related to special education while still preserving procedural safeguards.

(20 U.SC. 1400 § 609)

Section Change Impact Related Services: Changed previous text of “school health

services” to “school nurse services.” Also added “interpreting services,” and specifically excluded “a medical device that is surgically implanted, or the replacement of such a device.”

The exclusion of “a medical device that is surgically implanted” is thought to relate to Cochlear implants, which is a field of special education litigation that has increased significantly in the last few years. Much of the current case law requires school districts to pay for the

(20 U.SC. 1400 § 602(26))

3mapping of a child’s Cochlear implant, not the implantation itself.

Child Find Requirements: Adds new language stating that districts are now required to provide child find servcies for homeless children and children who are wards of the state.

This new language regarding child find requirements suggests that local school districts have to pay for some services for private school children in their area,

20 U.SC. 1400 § 612(a)(1)(C)

despite the fact that the child’s parents are not Also provides that districts are now responsible for “child find” requirements for

residents of that school district. Current law in Illinois states that the local school district of a child in a private placement does have to serve these children, however the school district in which their parents reside has to pay for those servcies. It will be interesting to see how this affects current residency law.

all private schools in their geographic area, and that they must meet with private school employees “throughout the year” to discuss with these representatives “types of services” “how such services will be appropriated if funds are insufficient to serve all children,” and “how and when these decisions will be made.” (continued on next page)

3 The “mapping” of a cochlear implant is a procedure often conducted by a child’s audiologist which sets the sound parameters on each electrode at the

appropriate, comfortable levels as indicated by the recipient. This procedure is required to be performed for children with Cochlear implants at least annually, with more visits needed immediately after implantation.

Section Change Impact Child Find Requirements: Districts also are required to submit a form

to ISBE See previous page

420 U.SC. 1400 § 612(a)(1)(C) that the private school administrator has signed indicating their child find requirements have been satisfied.

(cont’d)

If a private school is not satisfied with the services the local school district is offering, they are allowed to file a complaint to the State educational agency.

Early Intervening Services: States that school districts can take up to 20 U.SC. 1400 § 613(a)(9) 15% (as opposed to the 5% allowed

previously) of Part B special education funds “to develop and implement coordinated, early intervening services” for children K-12 who have not been identified for services but who need additional academic and behavioral support to succeed in a general education environment. Also states these funds can be used for professional development, educational and behavioral evaluations, services and supports.

4 Despite Congress’ statement that one of the goals for the 2004 reauthorization was to decrease paperwork requirements for districts, this is the first of several

new paperwork provisions for districts. A list of a few of these new paperwork provisions is attached.

Section Change Impact Teacher Certification: States that all teachers must meet the

“highly qualified” requirements of the No Child Left Behind Act (“NCLB”)

While most school districts are already in the process of changing their teacher requirements due to NCLB, this most significantly impacts school districts who have

20 U.S.C. 1400 § 612(a)(14)(C) 5 and

must hold at least a bachelor’s degree. opted out of NCLB. This now means

that even those districts must comply with NCLB requirements for special education teachers.

Mandatory Medication: New language has been added which specifically prohibits school districts from refusing educational services to parents who choose not to medicate their children.

Parents of children with ADHD who choose not to medicate cannot be treated differently. 20 U.SC. 1400 § 612(a)(25)

Timeline for Initial Case Study Evaluation: (“CSE”)

The new section states that school districts must complete CSE’s within 60

Illinois rules state that school districts have 60 school days to complete CSEs. This should apply, however many school districts are taking a conservative approach and doing CSEs in 60 calendar days.

calendar days, however this section does provide that states may utilize their own timelines if they have a timeline.

20 U.SC. 1400 § 614(a)(1)(C)(i)(I)

5 The requirements in Illinois to be considered “highly qualified” include for teachers to have a valid Illinois teaching certificate in the area of specialty (elementary,

secondary or special education) and meet one of the following options: 1) pass the elementary/middle grades test or the content-area test for the area of teaching responsibility, 2) have a major or coursework “equivalent to a major,” 3) have a master’s degree or other advanced degree/credential, 4) be certified by the National Bard of for Professional Teaching Standards, and 5) Have an endorsement or its coursework equivalent that is sufficient to meet the Illinios maximum requirements for the area of teaching responsibility, have teaching experience in the area and have engaged in relevant continuing professional education.

Section Change Impact Reevaluations: New language has been added to the effect

that reevaulations cannot be performed more than once a year unless the school and parent agree otherwise.

20 U.SC. 1400 § 614(a)(2)(B)

Eligibility Determination: Language added states that children are not

to be found eligible for special education services if the determinate factor is a lack of appropriate instruction in the essential components of reading instruction (as defined in the NCLB

This additional language suggests children can no longer be found eligible for a Learning Disability if they have not previously

20 U.SC. 1400 § 614(a)(5) specifically

received

6).

reading instruction based on phonics. This is the first time that the IDEA has ever identified (and required school districts to use) specific teaching methodologies

Eligibility Termination: New language includes a provision that school districts have to provide “a summary of the child’s academic achievement and functional performance, including recommendations on how to assist the child in meeting… postsecondary goals,” upon discontinuing special education services for a child. (including graduation and aging out of the sped system).

Many comments have expressed that this requirement may be troublesome. The proposed federal regulations so far provide no guidance as to the form or content of this summary and many school districts are struggling over what information should be contained.

20 U.SC. 1400 § 614(c)(5)(B)(ii)

6 The “essential components of reading instruction” as defined in NCLB include: a) phonemic awareness, b) phonics; c) vocabulary developments, d) reading

fluency, including oral reading skills, and e) reading comprehension strategies.

Section Change Impact Specific Learning Disabilities Eligibility: A school district is not required20 U.SC. 1400 § 614(b)(6)(A)

to take into consideration whether the child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation or mathematical reasoning. Instead, a school district “may” use a process that determines if the child responds to scientific, research-based intervention as part of the evaluation procedures.

This language dispels the belief that just because a child has a “severe discrepancy” between IQ scores in certain areas they are automatically found eligible for special education services under the LD category. Likewise, districts may no longer restrict themselves to a discrepancy analysis alone, which is what they should have been doing all along anyway.

IEPs: Adds text to allow 15 states (which have

yet to be identified) to develop “multi-year” IEPs (every three years) for certain students as opposed to the current annual reviews required by law. States must submit a proposal to the federal government in order to be considered part of this program.

While this initially was shocking to parent attorneys and advocates, the language included in this section still requires parental consent before implementing a “multi-year” IEP. In addition, annual goals are still required for the IEP and “an annual review must be conducted to determine the child’s progress toward the annual goals.” If the child is not progressing toward the goals, then the IEP must be redrafted.

Multi-Year IEP Determination Pilot Program: (20 U.S.C. 1400 614(d)(5)(A)

The IEP must also be reviewed at the request of a parent. As such, it

appears that this provision will have little to no impact on the current standards for IEPs, in districts where parents are adequately informed.

Section Change Impact IEPs: This section omits the requirements for

short-term goals, and instead states that IEPs must contain “a statement of measurable annual goals, including academic and functional goals…”

It will be more difficult for parents and districts to prove definitively whether the child is meeting annual goals, as “measurable objectives” are no longer required. Measurable yearly goals are now required.

Short term objectives: 20 U.SC. 1400 § 614(d)(1)(A)(i)(I)(cc)

Districts may use benchmarks or objectives however, objectives are still necessary for those students who are receiving alternative assessments.

IEPs: New language discontinues the need for quarterly progress reports, and instead only issues a

While most Illinois elementary and high schools do issue progress reports and report cards more than once a year, a district could potentially only have an obligation to track a special education child’s progress toward goals annually. If more frequency is desired, it appears it will be the responsibility of the parents to request that it be written into the IEP that the district provide more frequent reports.

Student progress: 20 U.SC. 1400 § 614(d)(1)(A)(i)(III) suggestion for the progress reports

to be issued “concurrent with the issuance of report cards.”

Section Change Impact IEPs: The new language pushes the requirement

for transition services planning from 14 to “beginning not later than the first IEP to be in effect when the child is 16…” It also requires the team to draft “appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate independent livings skills.” It also must list “the transition services (including courses of study) needed to assist the child in reaching those goals.”

This new language significantly increases the requirements for transition planning, but raises the age when the District has to begin the process. The current rules in Illinois still require the process to begin at age 14. Many school districts are continuing to use age 14 as a conservative approach.

Transition Services: 20 U.SC. 1400 § 614(d)(1)(A)(i)(VIII)

IEPs New language states that if a required IEP

team member’s “area of curriculum or related services is not being modified or discussed in the meeting” and if the parent and district agree the attendance of a mandatory IEP participant is not necessary, then that member does not have to participate.

This might potentially mean that districts could have only one representative (the LEA representative) present at an IEP meeting as long as summary reports are provided by all other participants. Remember,

IEP Attendance and Excusal: 20 U.SC. 1400 § 614(d)(1)(C)(i), (ii) and (iii) an advance report by the

absent participant will be required if the person’s area of curriculum or related services is at issue and written parent agreement must always be obtained prior to that individual’s excusal.

Requires written agreement by the parent. In addition, even if the required team member’s “area of curriculum or related services”

is being

modified or discussed, that person may be excused “in whole or in part” from attending an IEP meeting if: 1) a parent agrees in writing, and 2) “the member submits, in writing to the parent and the IEP team, input into the development of the IEP prior to that meeting.”

Section Change Impact Procedural Safeguards: This new language now assigns a uniform

statute of limitations (two years before the date the parents or public agency “knew or should have known”) regarding IDEA cases.

Although it was never specifically included within Illinois’ rules and regulations, case law has affirmed that the statute of limitations is generally a two-year period, so not a real change for Illinois.

Statute of Limitations: 20 U.SC. 1400 § 615(f)(3)(D) Due Process Complaint Notice and New language indicates that after a party

files for due process, the party receiving the request has

When IDEA was originally created, the due process provision was created in order for parents to be able to represent their own children at hearing, so they did not have to pay for lawyers. With the addition of this language, it could be argued that a hearing officer could dismiss a due process complaint on its face without an opportunity for the parent to correct the complaint. While parents are allowed to file a separate complaint with new issues listed, they might not be savvy enough to properly word their complaint and could be left with no remedy. One impression of this provision is that it could lead to “full employment for lawyers.”

Amended Complaint Notice: 20 U.SC. 1400 § 615(f)(3)(B), (D) and (E) 15 days to object to the

sufficiency of the request. If the receiving party does not object to the request, then it is “shall be deemed sufficient.” If the receiving party does object to the request, then the hearing officer assigned to the case will determine if the request meets legal requirements.

and 20 U.SC. 1400 § 615(o)

This provision also states that the party filing the due process request may not raise additional issues other than those listed in the request, at hearing, unless the other party agrees.

A parent may file an amended due process complaint only in two circumstances: 1) if the other party consents in writing, and 2) if the hearing officer grants permission.

This takes from one and gives to the other and raises other issues regarding consolidation of claims, tolling of timeline, etc…..

However, another new provision indicates that nothing precludes parents from filing a separate due process complaint for issues not listed on previous complaints.

Section Change Impact Response to Due Process Complaint: Another provision has been added that

once a party has received a due process request, they are

Important new ten-day timeline! It is unclear whether an IEP which addresses the issues in the complaint may suffice as a “response.”

20 U.SC. 1400 § 615(c)(2)(B)(ii) required to answer or

respond to the specific issues listed in that request within 10 days. ISBE has issued a guidance memo which contains some information regarding the content of this notice. If a hearing officer has been assigned, he or she must also receive a copy of the response. If a hearing officer has yet to be assigned, then it must also be sent to ISBE.

Resolution Session: After a district receives a request for due process, it is

It is believed that this provision was added to encourage resolution without the need for involvement of attorneys or hearing officers.

20 U.SC. 1400 § 615(f)(1)(B)(ii) mandated to convene a meeting, called a “resolution session”, to try to resolve the complaint within 15 days of receiving the parent’s complaint, unless both parties agree to waive this meeting. The section further states that if a parent does not attend the meeting with an attorney, then the district’s attorney

This provision also brings into question whether parents will be able to bring nonlegal “advocates” with them (as opposed to attorneys) without the district being able to also be represented.

cannot be present at the meeting. This is not intended to be an IEP meeting (although it arguably may) but must include the parents and members of the IEP team that have “knowledge of the request.”

(continued on next page)

Section Change Impact Resolution Session: (cont’d) If both parties agree to hold the meeting

and resolve the situation amicably, then this IEP will be considered a

It is also unclear when the deadlines for due process resolution begin. Some attorneys believe this section means the countdown for resolution of due process does not begin until after the “resolution session.” However, others will find ways to argue that the timeline for resolution of due process is triggered when the request is initially filed and is

20 U.SC. 1400 § 615(f)(1)(B)(ii) legally

binding agreement between both parties. However, the agreement can be voided by either party within three days of execution. If both parties have not reached a settlement within 30 days after the due process request was filed,

not stayed by any mediation or attempt to resolve the complaint. then the hearing

timelines commence. Currently, ISBE has taken the position that

the 45 day due process timeline does not start until the 390 day “resolution session” timeline is exhausted, but a few Illinois hearing officers are already disagreeing. This, different hearings may use different timelines unless a court determines precedent.

Attorneys Fees: 20 U.SC. 1400 § 615(i)(3)(D)(ii)

A new provision has been added stating that a court may award attorney’s fees to a district “against the

While this section first appeared shocking to most parents, it is believed that to prove a case is “frivolous, unreasonable or without foundation” will (as is now the case in all litigation) be extremely difficult. However, if a school district pursues a parent under this section, even if the parent wins, the resources utilized to defend the claim are unduly burdensome to most families.

attorney of a parent” who: 1) files a complaint that is frivolous, unreasonable or without foundation and 2) who continues to litigate after the litigation clearly became frivolous, unreasonable, or without foundation. (continued on next page)

Section Change Impact Attorneys Fees: (cont’d) 20 U.SC. 1400 § 615(i)(3)(D)(ii)

A district can also be awarded attorney’s fees from a parent or a parent’s attorney if the complaint was brought for “any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.”

The provision also states that “at the discretion of the state” attorney’s fees can be awarded for mediation, however they cannot be awarded for a lawyer’s attendance at a resolution session.

Discipline: This provision states that a special education child who is removed from his or her educational placement for more than 10 school days must be provided FAPE and must also receive a functional behavioral assessment and behavior intervention services and modifications.

20 U.SC. 1400 § 615(k)(1)(D)

Section Change Impact Manifestation Determination: This provision poses new questions the IEP

team must consider when determining whether a child’s behavior was or was not a manifestation of their disability: 1)

It is believed the amended language makes it easier for a school district to determine that a child’s behavior was

20 U.SC. 1400 § 615(k)(1)(E) not a manifestation of

his/her disability. If the conduct in question was caused by or had a direct and substantial relationship, to the child’s disability, or 2) if the conduct in question was the direct result of the school district’s failure to implement the IEP. (The previous questions were: 1) If a child’s disability impaired the ability of the child to understand the impact and the consequences of the behavior, and 2) if the child’s disability impaired the ability of the child to control the behavior)

Determination that Behavior was a This is a new section and states that if a district does find a child’s behavior to be related to his or her disability, then it is required to: 1) create and FBA and BIP for the child (if one was not already completed), 2) revise a child’s FBA and BIP if one was already completed and 3) return the child to his or her previous educational placement.

This new section offers parents the guarantee that if their child is suspended for more than 10 days in a year, that a FBA and BIP will be drafted.

Manifestation: 20 U.SC. 1400 § 615(k)(1)(F)

Section Change Impact 45-Day Removal: New language specifies that a child’s

removal may now be implemented for 45 Taking into consideration that a typical school year is approximately 180 school days, removal for 45 days constitutes about 25 percent of the school year.

20 U.SC. 1400 § 615(k)(1)(G) and (k)(1)(H)(2) school days, as opposed to 45 calendar

days. A third reason for removal of a child has also been added, which is for “inflict[ing] serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of the school district.”

There will also be considerable debate regarding the language “serious bodily injury.” The section states that the definition is defined as it is in the U.S. criminal code (18 USC §1365(3)(h), which defines it as: “(A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or The new code has also changed the

parental appeals process for these 45-day removals. The new language now states the child’s placement will remain at the alternative placement during the pendency of the dispute. In addition, the timeline for completion of an expedited due process hearing to overturn the decision to remove the child has been extended. Formerly, the requirement was for the hearing and opinion to be completed within 15 calendar days of a hearing being requested by the parents. The new language changes this from 15 calendar to 30 school days.

(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.” From this definition, it appears that it will be difficult for school districts to define a child’s actions as “serious bodily injury,” however case law will have to determine what is considered “serious.” The new timeline set for “expedited” due process hearings is now more in favor of districts, since 30 school days translates to about 45 calendar days.

Section Change Impact Protections for Children Not Yet Eligible New language states that a school district is

deemed to have “knowledge” that a child has a disability if,

New language has significantly restricted what is considered “reasonable notice” to the school district that a child may have had a disability. Former language would allow for a child’s “behavior or performance” to be sufficient notice, however the new language places added burden on the parents of a child who may have a disability to

for Special Education and Related Services: before the behavior

occurred: 1) the parent of a child expressed concern, in writing, to the district, 2) the parent requested a CSE, or 3) a teacher of the child or other school district personnel expressed specific concerns about a pattern of behavior to the director of special education or “other supervisory personnel.”

20 U.SC. 1400 § 615(k)(5)(C)

be well informed of their rights and assertively insure that concerns are brought to the school district

prior to the child displaying behavior. Training is needed in this area.

Preschool Grants: The new language now allows for states to have the option of creating a policy which would allow parents to choose to continue early intervention services “until such children… enter kindergarten,” as opposed to having the responsibility rest solely on the school district upon age three.

If Illinois chooses to create such a policy, then parents who choose these services will not be afforded the protections offered under IDEA for special education students until they are placed into kindergarten.

20 U.SC. 1400 § 635(c)

NEW PAPERWORK REQUIREMENTS FOR SCHOOL DISTRICTS, PARENTS

(as required by IDEIA 2004) 1. Letter and/or form indicating that the district’s Child Find requirements

have been met satisfactorily in relation to local private schools. 2. Annual report re: early intervening services, including the number of children served and the number

of students who subsequently receive special education and related services during the preceding 2-year period.

3. Summary of child’s academic achievement and functional performance,

including recommendations on how to assist child in meeting postsecondary goals, upon discontinuing special education services for a child.

4. Parent signature required if both the district and the parent agree that a

mandatory IEP attendee does not have to attend a meeting. (Waiver form – attached) 5. Parent signature required if both parties decide that a re-evaluation is not

necessary. (Waiver form – attached) 6. Parent signature required if both parties agree that an annual review is

not required. (Waiver form – attached) 7. Notice to a hearing officer that a due process complaint did not meet the

legal requirements. 8. Response to due process complaint. (Cannot be form letter – must

submit in 10 days) 9. Paperwork pursuant to the convening of resolution sessions – sign-in sheet, documentation of issues

and responses and written agreement (if reached).

REVOCATION OF CONSENT __________________________, PARENT(S) OF ___________________, BY SIGNATURE BELOW, HEREBY CERTIFIES TO THE RIVER VALLEY JUVENILE DETENTION CENTER THAT I (WE) REQUEST THAT RIVER VALLEY DO THE FOLLOWING (PLEASE CHECK ALL THAT APPLY):

REVOKE MY CONSENT TO THE ADMINISTRATION OF AN INITIAL SPECIAL EDUCATION CASE STUDY EVALUATION, PRIOR CONSENT FOR THIS EVALUATION WAS PROVIDED BY ______________________ ON ____________________.

REVOKE MY CONSENT TO THE ADMINISTRATION OF A SPECIAL EDUCATION

REEVALUATION, PRIOR CONSENT FOR THIS REEVALUATION WAS PROVIDED BY ___________________________________ ON _____________________.

REVOKE MY CONSENT TO THE ADMINISTRATION OF THE FOLLOWING EDUCATIONAL

EVALUATION:

_________________________________________________________, PRIOR CONSENT FOR THIS EVALUATION WAS PROVIDED BY______________________________ ON _____________________.

REVOKE MY CONSENT TO THE INITIAL SPECIAL EDUCATION PLACEMENT OF MY CHILD.

PRIOR CONSENT FOR THIS PLACEMENT WAS PROVIDED BY ______________________________, ON _________________________.

REVOKE MY CONSENT TO THE CURRENT SPECIAL EDUCATION PLACEMENT OF MY CHILD.

REVOKE MY CONSENT TO THE FOLLOWING SPECIAL EDUCATION AND/OR RELATED

SERVICES CURRENTLY BEING PROVIDED TO MY CHILD:

__________________________________________________________

__________________________________________________________

BY MY SIGNATURE BELOW I ACKNOWLEDGE AND UNDERSTAND THE FOLLOWING:

o THAT MY REVOCATION OF CONSENT IS EFFECTIVE IMMEDIATELY, BUT DOES NOT NEGATE AN ACTION THAT OCCURRED AFTER THE CONSENT WAS GIVEN AND BEFORE IT WAS REVOKED.

o SHOULD RIVER VALLEY AND/OR MY LOCAL SCHOOL DISTRICT DISAGREE WITH MY

REVOCATION OF CONSENT, THEY MAY, PURSUANT TO ILLINOIS LAW, INITIATE A SPECIAL EDUCATION DUE PROCESS HEARING AGAINST ME.

o IF MY REVOCATION OF CONSENT TERMINATES MY CHILD’S SPECIAL EDUCATION

SERVICES, I UNDERSTAND THAT MY CHILD WILL NO LONGER RECEIVE ANY OF THE SPECIAL DISCIPLINE PROTECTIONS AFFORDED TO CHILDREN RECEIVING SPECIAL EDUCATION SERVICES.

o IF MY REVOCATION OF CONSENT AFFECTS THE ADMINISTRATION OF A REQUIRED THREE

YEAR REEVALUATION, I UNDERSTAND THAT FOUR RIVERS AND/OR MY LOCAL SCHOOL DISTRICT MUST, PURSUANT TO ILLINOIS LAW, INITIATE A SPECIAL EDUCATION DUE PROCESS HEARING AGAINST ME.

SIGNED: _____________________________________ DATE: _________________________ PARENT SIGNED: _____________________________________ DATE: _________________________ PARENT WITNESS: ____________________________________ DATE: _________________________ N:\WHITTED & CLEARY PRESENTATIONS\RIVER VALLEY JUSTICE CENTER 11-2-05\REVOCATION OF CONSENT FORM.DOC

SERVICES AT PRIVATE SCHOOLS: OBLIGATIONS OF SCHOOL DISTRICTS FOR VOLUNTARILY ENROLLED STUDENTS AND “UNILATERAL” PARENT PLACEMENTS

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

Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX

Website: www.whittedclearylaw.com

PRIVATE SCHOOLS

Retroactive Reimbursement Under IDEA I. The Burlington Case A. Introduction Prior to the Burlington case,7 it was very difficult for advocates to argue on

behalf of parents that retroactive reimbursement was a remedy which might be available under IDEA. Nevertheless, in 1985, the Burlington case was decided. A few of the very unusual things about the Burlington case were that (1) it was a unanimous U.S. Supreme Court decision and (2) it was an opinion delivered by Justice Rehnquist. As some of the readers of this article might be aware, unanimous Supreme Court opinions do not occur all that often, and Mr. Justice Rehnquist was not known for his sympathies toward protected groups. These two factors make the Burlington opinion all that much more powerful.

B. The Opinion The Burlington opinion involved the parents' unilateral placement in a facility,

in part during the pendency of proceedings under the IDEA. At the end of the case, since the district noted that the parent had only prevailed partially, the school district sought to be paid back for that period of time during which it felt it had "won" part of this six year case. The U.S. Supreme Court said that the "stay put" or "frozen placement" provision did not work two ways. In other words, the IDEA provision is parent oriented. Thus, it applies only where a parent, in an attempt to provide an appropriate educational setting for his or her child, effects a unilateral placement in an appropriate facility.

There was a caveat in the case. Where an appropriate education is shown to

have been made available by the district at the time the unilateral placement was made by the parent, the parent placement of the child in a non-public location is at parents own expense. This tracks precisely with the provision in the regulations at 34 C.F.R. 300.403(a) which stated at the time the case was decided:

If a child with a disability has FAPE8 available and the

parents choose to place the child in a private school or facility, the public agency is not required by this part to

7 Burlington School Committee v. Department of Education of Massachusetts, 471 U.S. 359, 105 S.Ct.

1996, 85 L.Ed.2d 385 (1985). 8 Free Appropriate Public Education.

pay for the child's education at the private school or facility.

II. The Carter Case A. Introduction Once the Burlington case was decided, legal luminaries in the field of parent

advocacy were most pleased to advise their clients that this remedy was available, as long as the facility chosen by the parent “met the standards” of the state in which retroactive reimbursement is sought. In Illinois, for example, the state statute provides for the state board to maintain an "approved" list of placements which have met certain state standards.9 In Indiana, there is no such list and if the proper approvals are obtained in a particular case, any reasonably appropriate facility may be used. States do vary, but advocates did make attempts to steer their clients to "state approved" facilities.

B. The Case Facts In 1993, Justice Sandra Day O'Connor delivered the Carter opinion.10 In this

case, the pupil in question, Shannon Carter, was classified as learning disabled in ninth grade in 1985 and the school's recommendation was regular education with three resource periods per week. The goal was to get Shannon to progress four months during the entire school year. The parents requested a hearing, and on both administrative levels, the independent hearing officers held (against the parents) that the IEP was adequate. Meanwhile, the parents had placed Shannon privately in a school for disabled LD students, but this school was not "approved" by the state and in fact did not even write Individual Education Plans. Shannon graduated from the school in 1988.

In 1986, two years before Shannon's graduation, the parents filed suit to challenge the adverse administrative decisions. After a bench trial, the parents won. The court, in the process, appointed an independent expert to evaluate Shannon's progress and gave great weight to the findings. It was found that she had made "substantial progress" even though the school did not follow all of the state standards. For example, her reading levels rose three grades per year as opposed to the goals designated in the IEP.

The appellate court affirmed that the private school was "appropriate," and that

the parents were entitled to retroactive reimbursement. It should be noted in this case that the violations generally were not procedural but substantive in nature. A

9 Cite 105 I.L.C.S. 5/14-7.02 (1994). 10 Florence County School District Four v. Carter, ___ U.S. ___, 114 S.Ct. 361, 126 L.Ed.2d 284

(1993).

challenge to the substantive basis for the IEP becomes a battle of experts and it is best to use the most highly qualified and reputable experts that a parent can afford. An affiliation with a major center of learning also helps.

C. Court’s Holdings The Supreme Court, after reviewing the appellate court and trial records,

delivered the following holdings: (1) that the IEP was inappropriate; (2) that the private school's program was reasonably calculated to enable the child to receive educational benefits under the Rowley11 test; and (3) that retroactive reimbursement to parents when an IEP is found to be inappropriate does not require placement in a state approved program.

In somewhat acid tone, Justice Sandra Day O'Connor asked why courts should

leave the job of "approval" in the hands of the very agency that violated the plaintiff's rights in the first place.

This decision was unanimous, as was Burlington, which was heavily quoted in

the Carter decision. The case further held that Burlington grants parents a right of "unilateral withdrawal" and placement of their child in a non-approved private facility when a district's IEP is inappropriate. The Court explained that "approval" requirements do not make sense in the context of a parental placement. Note also here that the private school was in fairly severe non-compliance with any state standards. Two faculty members were not state certified, they didn't write IEPs, and the State of South Carolina kept no list of approved private schools but "approved" them on a case by case basis. However, it was pointed out by Justice O'Connor that public school officials had previously placed three children at the school.

The final holding of the Court is instructive. As support for the proposition

that parents need not seek state cooperation in the form of state approval of the parents' placement, she noted that "such cooperation is unlikely in cases where the school officials disagree with the need for private placement." Id., 114 S.Ct. at 366.

III. Public Law 105-17: The 1997 Revisions to IDEA Limit Carter/Burlington Recovery to Some Degree A. New IDEA Section The new Section 1412(a)(10(C)(iii) mandates that to preserve the parental right

to seek retroactive reimbursement under the Burlington and Carter cases, it is necessary that the district be notified at the “most recent IEP meeting” or letter must be submitted to the district, at least ten business days in advance of actually placing

11 Board of Education v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982).

the child, of parental intent to place. This means there must be some evidence that the district has actually received the correspondence, and further, the parent theoretically cannot place prior to ten business days having elapsed from date of receipt. The term “business day” includes any regular business day even though that might fall on a school holiday.

B. Effects of Amendment The Burlington and Carter cases have thus been limited by IDEA

reauthorization. There are certain specific limitations to retroactive reimbursement if parents do not properly comply with their notification duties. For convenience, a sample notification form is attached, “Appendix I.”

IV. Preauthorization - “Proportionate Share” A. Decisional Precursor to Reauthorization Fowler v. Unified School District 259, 107 F.3rd 797 (10th Cir. 1997) B. Facts and Holdings of the Courts Parents withdrew their hearing impaired son from a district school and enrolled

him in a private school, requesting an ASL interpreter onsite full time for purposes of “increased academic challenge.” The school district declined and the parents requested a hearing. The hearing officer held for the parents, with the state level hearing officer reversing against them. The parents then appealed to the federal district court which held for the parents and this case involved the district’s federal appeal of that adverse trial court ruling.

The court held there was an obligation for “equitable” participation in FAPE

for “voluntarily enrolled” pupils, as there is a difference between children placed in private schools through an IEP and those placed “unilaterally” at parental discretion (as in this case).

The court examined K.R. v. Anderson Community School Corp., 81 F.3d 673

(7th Cir. 1996) and Goodall v. Stafford County School Board, 930 F.2d 363 (4th Cir. 1991). Both of these cases held that if FAPE is made available by the district and the parents choose, at their discretion, to enroll the child at a private facility, there is no obligation on the part of the district to give services onsite. The court also looked at Cefalu (103 F.3d 393, 5th Cir. 1997) and Russman (85 F.3d 1050, 2nd Cir. 1996) and Cefalu’s test as follows: “Is onsite provision of services necessary in order for them to be meaningful?” If the answer is yes, according to Cefalu, the student is entitled to

some, but not more, benefit than he or she would receive if attendance was at the public school.

C. Discussion Most significant about this case is the pre-IDEA reauthorization “proportionate

share” language. Here, the court stated that district must calculate the average amount spent per pupil (it is unknown whether this is per handicapped pupil or all pupils) in the public school for the service in question, and make an “equivalent” amount of funding available for any student enrolled in a private school. Later, of course, the U.S. Supreme Court vacated the rulings in Anderson, Russman, and Fowler and ordered the appellate courts to reexamine their holdings in light of the reauthorization of IDEA.

V. IDEA Reauthorization - Private Schools (20 U.S.C. §1412(a)(10) et. seq.)

A. Enrollment by Parents - §1412(a)(10)(A)(i) (“voluntarily” enrolled children) Districts must provide a “proportionate share” of services, in accord with the

following: 1. Amounts expended for provision of services by a local education agency shall

be equal to a “proportionate amount of federal funds made available under this part.”

2. Such services may be provided to children with disabilities on the premises of

private, including parochial, schools to the extent “consistent with law.” B. Children Placed in, or Referred to, Private Schools by Public Agencies --

§1412(a)(10)(B)(i) (i) In general - schools must provide FAPE in private facilities if that was the

purpose of making the referral in the first place. (ii) Standards: ► facility and services must meet the LEA standards ► children have the same rights as if directly served by the local education

agency. C. Payment for Education of Children Enrolled in Private Schools Without Consent of or

Referral by the Public Agency -- §1412(a)(10)(C)

1. (i) In general - there is no requirement for the LEA to pay if it was making FAPE available and the parents elect to enroll the child in a private facility anyway. This is no change from Rowley, Burlington, and Carter.

2. (ii) A district may be liable for retroactive reimbursement if it is found by a

court or hearing officer not to have offered FAPE in a timely manner prior to parental enrollment in a private facility.

► This section seems to be limited to children who have previously

received special education and related services through a public agency. 3. (iii) Limitation on reimbursement - reimbursement may be reduced or denied

(i) if ► (aa) at the most recent IEP meeting the parents did not inform the LEA

that they were rejecting its placement, and including a statement of their concerns, as well as their intent to enroll their child in a private school at public expense; or

► (bb) parents fail to notify the LEA in writing ten business days in

advance of placement of their concerns, prior to their child’s removal from the public schools. (It should be noted here that “business day” includes any school holidays falling on a business day.) See “Appendix I.”

D. Exceptions to Limitations - §1412(a)(10)(C)(iv) The above section, imposing certain duties on parents, does not apply if: ► Parent is illiterate and cannot write in English; ► Compliance with the clause would likely result in physical or serious

emotional harm to the child; ► The school prevented the parent from providing the required notice; ► The parents have not received a written notice of their own obligation to

provide notice under this section. Further limitations or denials pursuant to §1412(a)(10)(C)(iii)(II) can occur,

► If, prior to parent removal from the public school, the LEA informs the parents of its intent to evaluate the child and the parents refuse to make the child available for such evaluation, or

► (iii) upon a judicial finding of “unreasonableness” with respect to the parents.

APPENDIX I

UNILATERAL PLACEMENT FORM LETTER (To be Sent to School Superintendent at Least 10

Business Days in Advance of Placement) Date: __________________ Re: (Name and Age of Student): Written Notice of Intent to Place Disabled Child in Nonpublic Facility and Seek Reimbursement

from School District Pursuant to Public Law 105-17 at 20 U.S.C. 1412(a)(10)(C)(iii)(I)(bb) Dear Superintendent: Please treat this correspondence as your formal written notification pursuant to the above captioned section of Public Law 105-17. We intend to place our above named child at the __________________ School [address, phone] on ___________, 19____. We will seek reimbursement of costs for that nonpublic facility from your district. As you are aware, Section 1412(a)(10)(C) states as follows:

(C) PAYMENT FOR EDUCATION OF CHILDREN ENROLLED IN PRIVATE SCHOOL WITHOUT CONSENT OF OR REFERRAL BY THE PUBLIC AGENCY. (...)

(iii) LIMITATION ON REIMBURSEMENT. The cost of reimbursement described in clause (ii) may be reduced or denied -- (I) if --

(aa) At the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or

(bb) Ten business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in division (aa); ...

Please treat this correspondence as your formal 1412(a)(10) notice as required by that section. Sincerely, __________________________________ Parent(s)

NON-CUSTODIAL PARENTS: LEGAL ISSUES Who Has The Authority To Do What?

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

Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX

Website: www.whittedclearylaw.com

NON-CUSTODIAL PARENTS By Brooke R. Whitted

I. Definitions What is custody? What is guardianship? What legal relationship does a stepparent have to a child who lives in the home? What is joint custody? All of these questions are asked on a regular basis by education professionals. The context varies: sometimes a residency question is involved. At other times, educators are attempting to unsnarl a complicated thicket of relationships just to figure out who has the authority to sign a form to release information or initiate services. The purpose of this memorandum is to inform the reader with respect to the latter quandary, using relevant statutory definitions as well as providing a tool with which to analyze whether an individual asserting that he or she has authority does, in fact, have that authority. The Illinois Probate Act defines "Guardian" as a legal representative of a minor.12 A "representative" is defined in the same act as a standby guardian, temporary guardian, and a guardian.13 These terms are defined by the Probate Act,14 as well as a comparatively new addition known as "short-term guardian,"15 which is:

§1-2.24. …. a guardian of the person of a minor as appointed by a parent of a

minor under Section 11-5.4, or a guardian of the person of a disabled person as appointed by the guardian of the disabled person under Section 11a-3.2.

The Juvenile Court Act contains perhaps the best and most comprehensive definitions:

(7) "Emancipated minor" means any minor 16 years of age or over who has been

completely or partially emancipated under the "Emancipation of Mature Minors Act", ...

(8) "Guardianship of the person" of a minor means duty and authority to act in the

best interests of the minor, subject to residual parental rights and responsibilities, to make important decisions in matters having a permanent effect on the life and development of the minor and to be concerned with his or her general welfare. It includes but is not necessarily limited to:

(a) the authority to consent to marriage, to enlistment in the armed forces of

the United States, or to major medical, psychiatric, and surgical treatment; to represent the minor in legal actions; and to make other decisions of substantial legal significance concerning the minor;

(b) the authority and duty of reasonable visitation, except to the extent that

these have been limited in the best interests of the minor by court order; (c) the rights and responsibilities of legal custody except where legal custody

has been vested in another person or agency; and

12 755 ILCS 5/1-2.08. 13 755 ILCS 5/1-2.15. 14 755 ILCS 5/1-2-23, et al. 15 755 ILCS 5/1-2.24.

(d) the power to consent to the adoption of the minor, but only if expressly conferred on the guardian in accordance with Section 2-29, 3-30, or 4-27.

(9) "Legal custody" means the relationship created by an order of court in the best

interests of the minor which imposes on the custodian the responsibility of physical possession of a minor and the duty to protect, train and discipline him and to provide him with food, shelter, education and ordinary medical care, except as these are limited by residual parental rights and responsibilities and the rights and responsibilities of the guardian of the person, if any.

(10) "Minor" means a person under the age of 21 years subject to this Act. (11) "Parent" means the father or mother of a child and includes any adoptive

parent. . . . (13) "Residual parental rights and responsibilities" means those rights and

responsibilities remaining with the parent after the transfer of legal custody or guardianship of the person, including, but not necessarily limited to, the right to reasonable visitation (which may be limited by the court in the best interests of the minor as provided in subsection (8)(b) of this Section), the right to consent to adoption, the right to determine the minor's religious affiliation, and the responsibility for his support.16 (All emphasis is added)

It also tends to be confusing to most people when conflicting statutory definitions are encountered. For example, the term "minor" is defined above in the Juvenile Court Act as anyone under 21, yet the Child Care Act defines "child" as follows:

§ 2.01. Child. "Child" means any person under 18 years of age. For purposes of

admission to and residence in child care institutions, group homes, and maternity centers, the term also means any person under 21 years of age who is referred by a parent or guardian, including an agency having legal responsibility for the person pursuant to the Juvenile Court Act or the Juvenile Court Act of 1987. Termination of care for such persons under 21 years of age shall occur no later than 90 days following completion of a public school secondary education program or the individual's eligibility for such a program.17

To add to the confusion, the Parental Responsibility Act defines "minor" as a person between the ages of 11 and 19!18 The same act also defines a "Legal Guardian" as follows:

(1) "Legal guardian" means a person appointed guardian, or given custody, of a

minor by a circuit court of the State, but does not include a person appointed guardian, or given custody, of a minor under the "Juvenile Court Act or the Juvenile Court Act of 1987".19 (Emphasis added)

The School Code, however, defines "parent" as "a parent or legal guardian of an enrolled student of an attendance center [for cities over 500,000]."20 However, for homeless children the

16 705 ILCS 405/1-3 17 225 ILCS 10/2.01. 18 740 ILCS 115/2(2) 19 740 ILCS 115/2(1) 20 105 ILCS 5/34-1.1

School Code defines "parent" as "the parent or guardian having legal or physical custody of a child." (emphasis added)21

It is well established that in most circumstances for school purposes, there must be a court order or an actual, legal, or documented connection between the "parent" and the "child." A stepparent, for example, who shows up at a staffing and asserts that he or she has authority over the child must be questioned. Unless there has been an adoption, court-ordered guardianship, or other document that gives the stepparent legal authority, there is no authority. Likewise, in the case of a non-custodial parent who appears at a staffing or in the administrator's office and asserts authority over the child. At the very least, a non-custodial parent should sign a document certifying that he or she has the authority so claimed. II. Introduction to the Problem

The issue of what rights a so-called "non-custodial" parent has is cropping up with

increasing frequency. For example, in the case of Navin vs. Park Ridge School District #64,22 the non-custodial parent, who under the divorce decree only had a right to information and not concerning any educational decision making, requested a due process hearing demanding more services. The hearing officer dismissed the request on the basis that the father, as the requesting party, was the non-custodial parent and had no right to request a due process hearing. The District (trial) Court agreed and affirmed the decision of the hearing officer, but the Federal Appellate Court disagreed and remanded the case to the District Court for further proceedings. In this somewhat aberrant opinion, U.S. District Judge Conlon outlines the facts of the case, including the Appellate Court's order (to her) to readjudicate the case. She then concluded that she couldn't do anything until a hearing officer had actually made a determination of the non-custodial parent's claims of certain procedural violations. Therefore, the District Court judge who had the case remanded to her again remanded the case down to the hearing officer. The hearing officer was compelled to actually hold a hearing to examine the non-custodial father's complaints and from which, if he is aggrieved, he would then have a right to again appeal to the District Court, and ultimately to the Appellate Court. Just from precedent set by this one case, then, Illinois hearing officers must consider procedural claims made by non-custodial parents even though the decree does not give them any right to determine educational programming. Our opinion is that this decision creates meaningless work in a very narrow area of non-custodial parent rights, however, now that the opinion exists, it must be followed. III. Questions to Ask in the Majority of Cases A. Source of Authority

If you are presented with potential custodial issues, you first need to inquire as to the

source of the authority claimed. Usually in domestic relations matters, there is a "decree" which includes a settlement agreement or court order that outlines the duties and

21 105 ILCS 45/1-5 22 36 IDELR 235

responsibilities of the parties. This is always on file in a court clerk's office somewhere. If you are ever in any significant doubt with regard to the validity of the authority claimed by a parent, you always have the option of referring to the court file, which is open to public examination. The general rule of thumb here should be, "when in doubt, check the file." However, it is recognized that educators (a) don't have the responsibility to check every court file to verify the truthfulness of parents and yet (b) should have some documented basis for taking what the parent says at face value and moving forward. In this regard, we suggest the attached document entitled "Certification of Authority." Once this document is signed by a so-called non-custodial parent, as indicated in the document, a copy should be forwarded to the custodial parent. A cover letter should accompany the form, indicating to the custodial parent that if the school authorities don't hear from him or her within a week, the form will be accepted as truthful.

B. Type of Right Asserted

Non-custodial parent rights are divided into two areas: consent for services (in domestic relations, these are usually medical and educational) and consent for release of information. Generally speaking, pursuant to Illinois decisional case law in the mental health area, the non-custodial parent of a child under 12 has the right to the same flow of information as the custodial parent if he or she requests such in writing.23 However, for school records, which are governed by the Family Educational Rights and Privacy Act (FERPA)24, there is no such restriction on the child's age. Therefore, unless the decree states otherwise, the non-custodial parent does not have the authority to consent to the initiation or administration of medical or educational services. This is, of course, another case for checking the decree which, in addition, can usually be provided by the parent who seeks information or consent authority.

1. Confidential Information:

a. School Information: In connection with educational information as defined in the Illinois School

Student Records Act, all you need is the consent of one parent, and generally speaking that should be the parent who has custodial authority over the child. For school information only, you do not need the signature of the child at any time.

b. Mental Health Information: This is governed by the Mental Health and Developmental Disabilities

Confidentiality Act25. Different rules apply to the release of mental health information and these are very specific. The attached form contains a second

23 Dymek v. Nyquist, 128 Ill.App.3d 859, 469 N.E.2d 659 24 FERPA, 20 U.S.C. § 1232g; 34 CFR Par 99 25 While mental health files also are now subject to the Health Information Portability and Accountability Act (“HIPAA”), any mental health records related to students which are maintained in the student’s permanent or temporary school records fall under the Family Educational Rights and Privacy Act (“FERPA”) regulations, and are generally exempted from HIPAA regulations.

section, in the same document, for the release of mental health information only. It should be noted that where there is a need to block disclosure of information to any parent, whether custodial or non-custodial, and the information is "mental health" in nature, the refusal of any child age 12 to 18 to sign the form is enough to block the information in the absence of a court order for disclosure. For children below the age of 12, however, both non-custodial and custodial parents have the same right to the flow of confidential mental health information.

2. Services:

The issue of consent for services is more complicated. The decisional case law generally requires that the custodial parent authorize services. Cases have shown that when the non-custodial parent attempts to initiate services, the courts have invalidated the authorization. Thus, educators should take some steps to verify the authority of the custodial parent who seeks to authorize initiation, change, or cessation of services. Quite possibly, the attached Certification of Authority would be sufficient if there is any doubt. However, in cases with serious potential consequences, there is no equal to actually checking the court file. C. Incarcerated Parents

When the parent or guardian has been incarcerated, other issues may need to be considered. Depending on the offense, it is possible that the rights of the parent may have been terminated. If such is the case, then there might be a private guardian appointed or, alternatively, the child may be a ward of the state. If the child is a ward of the state, the state guardian (DCFS usually, in Illinois) controls decision-making. If there is a private guardian, you can usually ask for the "letters of office" which should contain all of the guardian's duties, authority, and responsibilities.

It is also possible that an incarcerated parent may have retained parental rights, in which case it would be necessary to correspond with the parent, even though incarcerated, for the purpose of obtaining consents. Likewise, an incarcerated parent continues have the legal authority to consent to information disclosure unless parental rights have been fully terminated.

SCHOOL STUDENT RECORDS ACT COLLECTION, MAINTENANCE, INSPECTION, AND DISSEMINATION OF STUDENT EDUCATIONAL RECORDS FOR REGULAR AND SPECIAL EDUCATION STUDENTS

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

Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX

Website: www.whittedclearylaw.com

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. 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 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. 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:

(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. 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.

CHILD

AUTHORIZATION FOR RELEASE OF CONFIDENTIAL INFORMATION

We, the undersigned, do hereby authorize the release of any and all oral and written information concerning

our child __________________________________ and our family from any public or private agency, including but not limited to those listed on reverse, to the River Valley Juvenile Detention Center, 3200 McDonough Street, Joliet, Illinois 60431. The information requested below is being released for the purpose of assisting the Department of Probation in planning for our child. We understand that we have the right to limit this consent and choose not to do so at this time.

This release authorizes disclosure of any and all oral or written social history, medical, academic, psychological, psychiatric, or educational planning and testing information, including psychological protocols where applicable. In the case of a mental health facility, the complete disclosure of medical chart and running record or patient log information is authorized. Medical chart information shall include but not be limited to intake and discharge summaries, nursing entries, medical reports, consultations, operating room logs, medication logs, or any other information relating to the above named minor and his/her family. We further understand our right to inspect, copy, challenge, and/or amend the subject records.

In the case of a mental health facility, we understand that should we refuse to sign this release, the requested information will not be disclosed. We understand that we have a right to inspect and copy all information, and that we have the right to revoke this authorization in writing. Being fully apprised of these rights, it is our intent that this release remain in full force and effect until revoked in writing by the undersigned parties, or until the expiration date indicated below, whichever comes first, in order that our attorneys can be fully informed on a continual basis without the necessity for repeated requests.

We further intend that carbon, FAX, photocopies, e-mail or any other form of electronic transmittal of this

release shall have the same force and effect as the original, and shall apply to all records requested. PERSONS, AGENCIES OR ORGANIZATIONS TO WHICH THIS RELEASE IS DIRECTED:

ILLINOIS STATE BOARD OF EDUCATION; SIGNED: XX ____________________________________, AGE: _____________ DOB: ________________ SERVICE RECIPIENT IF 12 OR OLDER (MENTAL HEALTH ONLY) SIGNED AT ______________________________, ILLINOIS ON ____________________________, 20____________. WITNESS:____________________________________ TITLE:____________________________ AGE: ___________ X __________________________________________ X____________________________________________

PARENT OR GUARDIAN PARENT OR GUARDIAN EXPIRATION DATE:____________________________ (REQUIRED!)

November 1, 2005

VIA FACSIMILE AND REGULAR MAIL Dr. Jim Smith Superintendent Noname High School District 000 1234 Anywhere Street Anywhere, Illinois 60000 Re: R.H., Age 15, DOB 8/20/89 Dear Dr. Smith: As you are aware, our firm represents the educational interests of R. R. has recently received a private evaluation from private neuropsychologist, Dr. So and So, whose report we attach for your review. We also attach a letter from R.’s private psychiatrist with his summary and recommendations for R. We request that a full Case Study Evaluation be conducted and an IEP meeting be scheduled as soon as possible in order to review and discuss these reports. Upon evaluating R., Dr. So and So is recommending a change in R.’s educational placement for the fall of 2005 to a therapeutic residential school, with the understanding that Mr. H. may opt for a private therapeutic day placement in the hopes that she would progress within a day environment. Mr. H. already has begun the search for an appropriate therapeutic day school for R., and she has been accepted to New Hope Academy, located in Niles, Illinois. It is Mr. H’s hope that District 214 will fund this placement, however if R.’s IEP team does not agree to fund this placement, please take this letter as formal notification that R. will begin her unilateral placement at New Hope on August 31, 2005, the first day of school at New Hope. For background purposes, R. is a 15-year-old young woman who has been diagnosed with Major Depression. R. initially began exhibiting problems at school related to her disability when she began to refuse to attend school in the seventh grade during the 2001 – 2002 school year. After this year, her school attendance deteriorated rapidly and she was referred for an initial case study evaluation and found eligible for ED services by May of 2002 as a result. R. had a “honeymoon period” during her initial transfer to high school, but by the second semester of her freshman year for the 2003 – 2004 school year in District 214 at Hersey High School, her grades and attendance began deteriorating once again. During her sophomore year, she was truant for 51 classes in a three-month time period, and her grades had slipped to Cs, Ds and an F. As a result of her missing school, District 214 referred R. to the juvenile court system for truancy, and recommended that she continue to receive 250 mpw of ED resources for the 2004 – 2005 school year. At this point, however, R.’s private providers, including neuropsychologist Dr. So and So and psychiatrist Dr. Joe Schmoe, do not feel that her current educational recommendations are appropriate and are both recommending a more structured therapeutic placement.

Dr. Jim Smith November 1, 2005 Page 2 We look forward to hearing from you or your attorney soon with some dates the district is available for an IEP meeting. Sincerely, Neal E. Takiff Enclosures cc: Parents School District attorney NET:LMO