Recent Developments in
Special Education Law
A Publication of Ancel,
Glink, Diamond, Bush, DiCianni & Krafthefer, P.C.
To view this publication in PDF format, click here.
August 1997
The usually tranquil
summer vacation months of June and July have seen a flurry of changes in
the laws that affect school districts this year. Special education administrators
and teachers especially are faced with the difficult task of becoming familiar
with the new (and improved?) Individuals with Disabilities Act (IDEA) Reauthorization
Bill signed into law on June 4, 1997. This insert will highlight some of
the more important changes to the IDEA in an effort to assist those of you
in the special education field as you embark on a new school year under
a new set of rules.
IDEA Reauthorization
After over two years of debate, the United States Congress has finally
passed the much anticipated IDEA (Individuals with Disabilities Education
Act) Reauthorization Bill. The bill was signed into law by President Clinton
on Wednesday, June 4, 1997. How will the new law affect your school district?
Following is a discussion of the more important changes contained in the
law, which will undoubtedly change the way your school district provides
services to disabled children. You should note that while the National School
Board Association (NSBA) did applaud certain provisions contained in the
new law, it did not endorse the bill outright.
Discipline
Cessation of Services. Despite a national trend to the contrary, the
IDEA bill does not allow the cessation of services to special education
students under any circumstance, including expulsion, even if the misconduct
was not a manifestation of the child’s disability. The new law clarifies
that children whose conduct is unrelated to their disability may be disciplined
just like any other child, except that services must continue during the
disciplinary period. This is not good news to school district advocates
who argued (and continue to argue) that disabled students can forfeit their
rights under the IDEA when their misconduct is severe enough to warrant
expulsion.
Regular Education Students. Students who have not been identified as
requiring special education services may seek IDEA protections when facing
disciplinary action if the school district “had knowledge that the
child was a child with a disability before the behavior that precipitated
the disciplinary action occurred.” School districts will be found to
have such knowledge under four circumstances:
The parent has expressed concern in writing (unless illiterate or otherwise
unable to write);
the child’s behavior or performance demonstrate the need for such
services;
the parent has requested an evaluation of the child; or
the child’s teacher or other school district personnel have expressed
concern about the child’s behavior or performance to any school district
personnel.
This new provision concerning regular education students facing disciplinary
proceedings will undoubtedly result in an increase in litigation. Regular
education students can now argue that they are protected under the IDEA
if the school district had some notice that they were in need of special
education services.
Alternative Settings.
Prior to the new law, school districts could
only place disabled students in alternative educational settings for up
to 45 days when they brought firearms to school. The law now provides that
school districts have this same remedy for students who (1) bring any weapon
to school, or (2) who possess, use, sell, or solicit illegal drugs while
at school or at school functions. However, the law requires school districts
to demonstrate “by more than a preponderance of the evidence that maintaining
the current placement of such child is substantially likely to result in
injury to the child or to others.” Previous versions of the bill contained
the less onerous burden of “substantial evidence.”
Individualized Education Plans (IEP’s)
Contents of the IEP. The Reauthorization
Bill greatly expanded and clarified what information must be contained in
an IEP. The law now requires that particular emphasis be placed on the school’s
general education program as it relates to the disabled child. For example,
IEP’s must now outline how a child’s disability affects his or
her progress in the general education program, include goals and short-term
objectives identifying the services that the child needs to succeed in the
regular education program, and the IEP must also include an explanation
of the extent to which the child will not participate in the general education
program. It remains to be seen whether these new provisions will help or
hinder school districts; commentators have expressed mixed opinions on the
issue.
Assessments. Disabled students must
be allowed to take statewide and local assessments with modifications, if
necessary. Modifications must be set forth in the child’s IEP. If participation
in assessments is not appropriate, the IEP must indicate why and explain
how the child will otherwise be assessed.
Members of Team. The new law mandates
that parents be part of the team making placement decisions, adds regular
education teachers when appropriate, and provides that one of the team members
must be able to interpret evaluation test results. The IEP team must now
consider a specific list of factors during the evaluation: the child’s
strengths, parental concerns, evaluation/reevaluation results and language,
communication, and assistive technology needs. In all likelihood, your IEP
teams already take these factors into consideration; the new law simply
clarifies what the IEP team must consider. This will have the unfortunate
effect of strengthening parents’ cases when a school district fails
to address a required factor in the IEP. The best advice here is to teach
your teams to write comprehensive IEP’s. You should also consider reviewing
at least a sampling of these forms with an attorney knowledgeable with special
education issues.
Attorneys’ Fees
Requirements. School districts
won some ground on the issue of attorneys’ fees. The new law provides
that attorneys’ fees can be reduced or denied if the parent does not
give the school district the following information before filing due process
proceedings: the child’s name, address, school, a summary of the problem,
and a proposed resolution to the problem. Also, the new law provides that
attorneys’ fees may not be awarded relating to any IEP team meetings
or for mediation conducted prior to the filing of a due process action,
with limited exceptions.
Related Services
The new law kept intact the previous definition of “related services”
and added two related services: orientation and mobility services. Such
services include assistance in traveling to, from, or around the school
and school property. This type of service can be as simple as teaching a
disabled student how to get from one classroom to another.
Policy Letters
The old law did not address the weight to be given to policy letters
that are routinely issued by the Education Department. The new law clarifies
that the Education Department is prohibited from establishing rules through
the use of policy letters. The Education Department must formally promulgate
its rules using public notice and comment in the Federal Register. Importantly,
the new law requires that policies of general applicability which were originally
included in policy letters must be widely disseminated to school districts
and other educational agencies, parents, and all other interested people.
The new law further requires the Education Department to publish copies
of its responses to queries quarterly in the Federal Register. These requirements
are in part intended to ensure that laws pertaining to the education of
students with disabilities are maintained in one location and not in a large
collection of policy letters, which are not easily researched.
Enrollment in Private Schools
The new law makes a number of changes regarding private school enrollments.
For example, the new law provides, as it did previously, that local educational
agencies must spend a proportionate share of federal IDEA funds on disabled
students attending private or parochial schools. However, the new law specifically
states that local educational agencies need not provide special education
and related services when parents enroll a child in a private or parochial
school when the public school had ensured that a free, appropriate public
education was available to the child. Parents do have recourse, however,
if the public school did not make an appropriate placement in a timely manner.
If parents fail to inform the IEP team that the proposed placement is
rejected and they enroll a child in a private school, a demand for reimbursement
may be denied or reduced. Parents have to so inform the public school district
either at the most recent IEP team meeting they attended or ten business
days in advance of making the unilateral placement.
Additionally, a court or hearing officer can reduce a reimbursement
if the parents did not make the child available for an evaluation or if
the parents otherwise acted unreasonably. These are welcome changes for
school districts who often struggle with placement issues.
Incidental Instruction
Prior to the passage of the new law, Education Department policy provided
that schools had to keep track of how much time special education instructors
spent in regular education classes to ensure that IDEA-funded teachers were
not providing incidental instruction to non-disabled students. The new law
rescinds this policy and provides that educators can provide incidental
benefits to regular education students when serving disabled students according
to their IEP’s.
Reevaluations
The law previously provided that reevaluations were required once every
three years. The new law maintains the three year provision, but adds that
a reevaluation must be conducted when conditions warrant, at a parent’s
or teacher’s request.
In addition, the new law provides an exception to the three year rule.
After reviewing an IEP, if the IEP team determines that the child is still
eligible and that no further information is needed, a reevaluation need
not be conducted. However, the IEP team must inform the parents of this
finding and include information on the parents’ right to request a
reevaluation. Parental consent is necessary before conducting a reevaluation,
unless the school district can show that it tried to obtain parental consent
and the parents failed to respond.
Conclusion
It is crucial for special education personnel to become familiar with
the new IDEA as soon as possible. The Reauthorization Bill made some fundamental
changes to the IDEA that will change the way that you serve special education
students in the future.
Revision of Illinois’ Due Process
Hearing System
Both federal and state law require that children with disabilities
and their families be given a number of procedural safeguards, including
a comprehensive due process system to be used in the event of disputes.
The due process system used in Illinois was two-tiered, consisting of a
Level I and a Level II review since its inception in the 1970’s. However,
Illinois law was amended on August 14, 1996, to provide for a single level
of review, which was intended to shorten the amount of time between a hearing
and final decision and provide better trained hearing officers under new
selection criteria.
All requests for due process hearings made on or after July 1, 1997,
will be heard under the new one-tier review law contained at 105 ILCS 5/14-8.02a.
Thus, there will be a short period of time when the two-level hearings are
phased out.
While the most significant change in the law deals with streamlining
the levels of review, the new law contains a number of other provisions
that will substantially change the way that due process hearings are conducted.
Hearing Officers
One goal of the new law was to compile a small group of competent and
highly trained hearing officers to govern over all due process hearings
in an effort to promote consistent and well-drafted opinions. The new law
provides for the recruitment, training, and selection of only approximately
fifteen hearing officers. These hearing officers will be appointed to cases
on a rotating basis — no more striking names from a list. Each party
will have the opportunity to make one substitution of the appointed hearing
officer per case. The hearing officers will be extensively trained by an
outside agency hired by the Illinois State Board of Education.
The hearing officers will be appointed for two-year terms and will receive
a base annual stipend in addition to a per diem allowance for each hearing.
The State Board of Education must monitor, review, and evaluate the decisions
of the hearing officers and must also consider evaluations completed by
participants in due process hearings.
The hearing officers are specifically prohibited from participating
in any ex-parte communications with the parties, except to arrange and confirm
the dates, places and times of prehearing conferences and due process hearings.
Prehearing Conference
The new law provides that the parties may choose to participate in a prehearing
conference for the purpose of aiding “the fair, orderly, and expeditious
conduct of the hearing.” The prehearing conference must take place
no later than 14 days prior to the hearing and may be conducted in person
or by telephone. The parties must disclose the following at the conference:
1. whether they are represented by legal counsel;
2. the matter(s) which they believe to be in dispute and the specific relief
they are seeking;
3. whether there are any additional evaluations that they intend to introduce
at the hearing;
4. a list of all documents they intend to introduce into the hearing record,
including a description of each document and its date; and
5. the names of all witnesses they intend to call to testify at the hearing.
Evidence
An important new provision in the law is that each party must disclose
and provide to each other all evidence that they intend to introduce at
the hearing no later than five days before the hearing. If a party fails
to do this, the op-posing party has the right to prohibit the introduction
of this evidence.
The law also gives hearing officers broad subpoena powers to compel the
testimony of any witness or the production of documents relevant to the
resolution of the matter.
Decision and Clarification
The hearing officer has only ten days after the conclusion of a hearing
to issue a written decision, including findings of fact and conclusions
of law. The decision must specifically provide what special education and
related services must be provided to the child. Any party may request a
clarification (not reconsideration) of a final decision in writing within
five days after receiving the decision. This request stays implementation
of those portions of the decision for which clarification is sought. The
hearing officer shall issue a written clarification within ten days.
The new hearing procedures will truly change the way that special education
due process hearings are conducted. It is too soon to tell whether the changes
will have an impact on the outcome of due process hearings or whether the
decisions will take on a “pro-school” or “pro-parent/child”
slant. Your legal counsel can help ease the transition over the coming year
by clearly explaining how the new hearings are being conducted and informing
you what some of the more recent decisions have held. The Illinois State
Board of Education is presently drafting regulations implementing the new
law which should help further clarify how the hearings are to be conducted.
These regulations are expected to be finalized within the coming months.
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