In July, the Illinois State Board of Education published non-regulatory guidance to assist schools in implementing HB 40 and HB 2748, now Public Act 102-0172 and 102-0173, respectively. The FAQ addressed many of questions from the field, as we summarized here. ISBE recently updated the FAQ, providing additional guidance related to HB 2748, specifically recommending that districts consider including a more expansive group of students for postsecondary recovery services eligibility and providing the option to parents and adult students to file a State complaint related to the provision of services under the Act. ISBE also enacted an emergency regulation related to the extended eligibility for postsecondary services.


HB 2748 provides that “a student who reaches 22 years of age during the time in which the student’s in-person instruction, services or activities are suspended for a period of three-months or more during the school year as a result of the COVID-19 pandemic, the student is eligible for [postsecondary recovery] services up to the end of the regular 2021-2022 school year.”

The ISBE guidance clarified that the suspension of in-person instruction and services needs to have been for three consecutive calendar months during the regular school term. The updated guidance adds that, in circumstances where there was not such a suspension, but the cumulative suspension of instruction and services “far exceeded” three months, “districts should make an individual determination as to the impact on the student’s ability to progress toward his/her IEP goals and the need to offer the student the opportunity to return for the 2021-22 school year.” The revised guidance does not mandate that districts provide recovery services beyond what is required by HB 2748, but strongly encourages districts to consider this option as compensatory education for students who do not meet the letter of the law but did experience a significant disruption in transition services.

ISBE made a similar revision to the guidance related to eligibility for postsecondary recovery services with respect to the issue of when the student turned 22. The guidance provides that the law applies to students who turned 22 during a qualifying suspension of in-person instruction and services. But the updated guidance adds that, for students who turned 22 after a qualifying suspension of in-person instruction and services, the district “may be required” to make an individualized determination as to eligibility for postsecondary recovery services. We read this revision to also be strong encouragement to consider these students for compensatory education in the form of postsecondary recovery services during the 2021-2022 school year.

ISBE explains that “The intent of the Act is to ensure that any student whose education was impacted by the pandemic prior to aging out, graduating, or receiving a certificate of completion due to turning age 22 is provided the opportunity to receive recovery services during the 2021-22 school year.” While that may be the intent of the Act, it is not what the Act states. The language of the Act requires a relatively complex and nonintuitive analysis to determine eligibility for students based on the length and timing of a suspension of services and when the student aged out. While the Act may not specifically apply to some transition students whose in-person services were interrupted, considering recovery or other compensatory services for such students may be warranted based on the guidance from the Department of Education and general IDEA compensatory education standards.


Recovery Services = FAPE?

Students who qualify under HB 2748 are eligible for postsecondary recovery services, not specialized instruction and related services under the IDEA or Article 14 generally. ISBE thus recommends that districts provide FAPE to students receiving services under this Act but does not require it. The revised guidance, however, provides that parents and adult students can file a State complaint if they believe that their district has violated to the provisions of the Act. State complaints are available to address alleged violations of the rights of children with disabilities, including under the IDEA, Article 14 of the School Code, and ISBE’s special education regulations. Because HB 2748 was codified in Article 14, its violation can form the basis of a State complaint even if there is no FAPE requirement.

However, ISBE’s emergency regulation muddies the waters. The emergency regulation revises Section 226 so that rather than students being eligible for services (and teachers and related services providers being licensed to serve students) through age 21 inclusive, students are eligible for services through the “eligible age.” And “eligible age” is defined as “a student who is 21 years of age or a student with an individualized education program who reaches the age of 22 during the time in which the student’s in-person instruction, services, or activities are suspended for a period of 3 months or more during the school year as a result of the COVID-19 pandemic. All other requirements of Section 14-17 of the School Code shall apply to such students.”

The first peculiarity about the emergency regulation is that it fails to account for the change made by HB 40, which provides that students who turn 22 during the regular school term can finish that term. These 22-year-old students do not appear to be included in the new definitions. The second peculiarity is that the emergency regulation states that students who have not received a diploma continue to be eligible to receive FAPE through the “eligible age,” creating ambiguity as to exactly what students eligible under HB 2748 are entitled to, FAPE or recovery services under the Act.

We will continue to report on any additional updates related to HB 40 and HB 2748. Please reach out to our Special Education Team with questions about how these laws apply in your district.