Special Education Law Insights

From Illinois

On February 25, 2020, ISBE posted a second amendment to its emergency rules governing physical restraint and time out. This new amendment, which is effective immediately, is the most recent development in ISBE’s attempts to deal with the difficult issues related to these restrictive and sometimes misused techniques. ISBE’s efforts have led to a dizzying series of emergency rules, amendments, proposals, and revised proposals over the past months, leaving many schools (and even school attorneys!) confused about what rules are in effect and how to prepare for upcoming changes. This summary outlines the newest changes schools need…
On February 14, 2020, ISBE issued notice that it will no longer provide reimbursement for students placed at non-approved special education facilities, even if the placement is ordered by a hearing officer. In a brief memorandum to Illinois special education due process hearing officers and state directors of special education, ISBE announced the change, which is effective immediately. This change will have important impacts on Illinois public schools. In Illinois, districts can receive reimbursement from the Illinois State Board of Education (ISBE) for students placed at “approved” private day and residential schools. To be approved, the private school must meet…
On February 18, 2020, ISBE approved revised proposed rules related to the use of physical restraint and time out in schools. The revised proposed rules follow ISBE’s receipt and review of over three hundred comments on the initial proposed rules and include several significant changes, most notably permitting isolated time out in specific circumstances. The revised proposed rules next go to JCAR for Second Notice and will be considered at an upcoming JCAR meeting. If JCAR has no objection to the revised proposed rules, ISBE can proceed to adopt them. According to a report, ISBE also filed the revised…
Is your school threat assessment team in place and ready to act in order to meet upcoming legal deadlines? Does it understand the interaction between threat assessments and special education evaluations? Is it adequately prepared so that your school will not be the next one in the media spotlight for a threat assessment gone wrong? In this post, we highlight three key issues involving threat assessment and describe upcoming opportunities to learn what you need to know to properly conduct threat assessments going forward.  The School Safety Drill Act requires school districts in Illinois to have threat assessment teams in…
After receiving and reviewing questions and concerns from stakeholders regarding the practical implications of its emergency rules on the use of time out and physical restraint, the Illinois State Board of Education (“ISBE”) released a Guidance and FAQ document aimed at providing clarification. The Guidance, which ISBE issued in collaboration with the Illinois Counsel of School Attorneys (“ICSA”), explains what does and does not constitute a time out—one of the issues that has caused the most confusion. The Guidance also provides other needed definitions and answers various practical questions related to alternative behavioral supports and the application of time…
Within the last few weeks, there have been significant changes to the Illinois State Board of Education (“ISBE”) rules regarding time out and physical restraint. First, ISBE issued emergency rules, then it issued amendments to the emergency rules, and finally, on December 9, 2019, ISBE published proposed permanent rules on the use of time out and physical restraint. We have heard and raised numerous questions and concerns regarding the practical implications of the emergency rules in the classroom. ISBE’s proposed permanent rules provide some additional clarity. But the work to overhaul policies and procedures and train staff on the…
After pushback from Illinois school districts, an amendment to the Illinois School Code’s special education provisions will alleviate some, but not all, frustrations related to a recent law that added significant procedural requirements for special education teams. Senate Bill 460 (Public Act 101-0598) amended the Children with Disabilities Article of the School Code to delay the requirement that special education teams provide a child’s parent or guardian with copies of all written materials to be considered by the student’s IEP team three school days prior to the IEP meeting. Special education teams should be aware of what changes…
In response to outcry from educators in and outside of Illinois about the legitimate need to use prone and supine restraint for certain diverse learners and the lack of notice to allow teams to identify alternative techniques, the Illinois State Board of Education amended its recent emergency rules to allow the practices on a limited basis if certain conditions are met. What are our initial insights from the amended rules? Under the amendment, prone and supine restraint can only be used if the following requirements are met: Consider Contraindicating Factors. The school district or school has determined that no medical…
IAASE recently reported that HB 3897 is currently making its way through the Illinois legislative process. This bill would expand special education eligibility to students through the school year in which they turn 22. Currently, students who have not yet received a diploma are eligible for services through the day before their 22nd birthday. Note that federal funding does not cover students beyond the age of 21. We wondered, how many students would this impact and what are other states doing? How many students would receive additional services? According to ISBE data, 306 students aged out during the 2018-2019 school…
As we previously reported, effective immediately, school districts must comply with ISBE emergency rules for the use of seclusion and restraint. To comply with the emergency rule, districts will need to take the following steps: Adopt or Update Board Policy: Districts must have a legally compliant policy before using either seclusion or restraint. Stop Using Seclusion or Restraint to Maintain Order: The new rule restricts the use of time out and physical restraint to therapeutic purposes or as a means of maintaining a safe environment, to the extent necessary to preserve the safety of students and others. ISBE removed…
The Illinois State Board of Education has filed emergency rules, effective immediately, banning the use of isolated time out in our schools. Like many of you, we were disheartened to read the Tribune/Pro Publica report on the use of isolated time out as a behavioral intervention.  While this is a change in practice that will require investment from all stakeholders, we know from our work in schools that administrators and teachers share the common goal of implementing behavioral interventions that are positive, affirming and effective for all students, especially the most vulnerable. According to ISBE, the emergency rules will: Ban…
When you get a request for a service animal in school, your mind may race with concerns. What if students or staff are allergic? Is the dog going to be a distraction for other students? Where will the dog relieve itself? Though these concerns are valid considerations, you might be surprised that in most cases, courts do not find they justify excluding service animals from schools. The school context is especially complicated because school administrators cannot only think of the rights of the student requesting to bring a service animal to school. Administrators must also consider the needs of faculty…
With the number of students who identify as gender non-conforming on the rise, many educators have questions regarding the supports and services that may be available to such students. This year at IAASE, Jennifer Smith and John Swinney addressed this intersection of gender identity and special education, including factors to consider under Section 504, the IDEA, and the ADA. The main take away? Educators should be cognizant that gender non-conformity is not, as a rule, a disability. However, the emotional and educational impact in identifying as non-conforming may require school districts to provide gender non-conforming students with supports. Other important…
We had great participation in our IAASE session last week on this topic, with the audience voting electronically to weigh in on their anticipated outcomes of cases. If you missed it, here are our main takeaways. When it comes to bullying and special education, districts face potential liability on a number of fronts, including lawsuits, OCR complaints, and due process complaints. To mitigate these risks, districts need a two-pronged approach and clear communication. First, districts should follow their bullying policies to fully investigate reports of bullying and take steps that are reasonably calculated to stop the bullying, prevent its reoccurrence,…
On October 17, 2019, Franczek P.C. Special Education team members Dana Fattore Crumley and Emily Tulloch presented at the IAASE 2019 Fall Conference on Fighting Friendly Fire in your IEP: Avoiding Internal Challenges to IDEA Compliance. This session provided an overview of common internal challenges that can sabotage IEP compliance. For a summary of this session and access to the presentation materials, keep reading! We often think of challenges to the IEP as coming from the outside, but sometimes actions by school employees can create “friendly fire” that puts your IEP at risk. Examples include: lack of preparation failure to…
Our Partner Jennifer Smith asked an important question during the Legislative Update session yesterday at IAASE’s 2019 Fall Conference: What can Illinois special education teachers and administrators do to help ensure that the legislature makes necessary fixes to Public Act 101-0515—or as IAASE aptly calls it, “That Pesky RTI and Special Education Bill”—during the upcoming veto session. We gave you the lowdown on the demanding new law in a blog post earlier this year. As might be expected, the pending proposal to amend the law and remove requirements that were intended to apply only to…