Special Education Law Insights

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Just hours before the conclusion of the spring legislative session, the Illinois General Assembly passed two bills that will significantly impact students who receive services until age 22. 
The first, HB40, impacts students who turn 22 during the school year by allowing them to continue to receive special education services until the end of that school year rather than until the day before their 22nd birthday. This is a change we have been anticipating for some time, and will take effect upon the Governor’s signature.   
The second, HB 2748, titled “COVID-19 post-secondary transition recovery eligibility,” provides an extended period of IEP services for students who turned 22 “during the time in
Continue Reading Two New Bills Offer Extended Special Education Services to Transition Students

On May 30, 2021, the Illinois legislature passed HB219, which will further restrict the use of time out and physical restraint in Illinois schools. The legislation will take effect upon signature by Governor Pritzker. You may recall that similar bills have been introduced over the last several sessions, and the current bill is very similar to the version we previously highlighted for you. The legislature took action at the close of this session and just days following the publication of another Pro Publica article showing continued reliance on time out and physical restraint, despite reduced in-person instruction this year.
Continue Reading Illinois Legislature Passes Bill Further Restricting Time Out and Physical Restraint

On May 13, 2021, the Department of Education Office for Civil Rights published a Q&A on Civil Rights and School Reopening in the COVID-19 Environment. The document is aimed at “helping schools reopen safely and in ways that support equity among students” and addresses obligations under Section 504 (prohibiting discrimination on the basis of disability), Title VI (prohibiting discrimination on the basis of race, color, or national origin), and Title IX (prohibiting discrimination based on sex). In the disability section, most of the answers repeat or expand on prior guidance from the Department. And on the one question where
Continue Reading New OCR Q&A Reiterates Guidance, Promises Additional Guidance on Compensatory Services to Come

The Department of Education recently issued Volume 2 of its COVID-19 Handbook. The handbook offers suggestions for creating safe and healthy learning environments, addressing lost instructional time, and supporting educator and staff stability and well-being. Throughout the guidance, the Department encourages readers to keep students who may have been especially impacted by the pandemic and remote learning – including students with disabilities – at the center of plans for returning to in-person learning and using American Rescue Plan funds. The reminder to focus on issues of equity and the needs of vulnerable students, including students from low-income backgrounds, students
Continue Reading COVID 19-Handbook V.2: What are the Implications for Special Education?

The American Rescue Plan Act signed by President Biden at the end of last week includes almost $130 billion in education funding. The vast majority of that money will be distributed to school districts based on the Title I formula. This amounts to an average of $2,521 per student in Illinois, though districts with more disadvantaged students will receive more while other districts will receive less. Some of the money will also go to states to use for learning recovery grants, summer enrichment programs, and after-school programs. Of particular importance to special education directors and practitioners is that $3 billion
Continue Reading New IDEA Funding in the American Rescue Plan Act

A recent OCR decision out of Wyoming is a reminder to school districts of their Child Find obligations—including during remote instruction. In Teton County School District, Wyoming, OCR found in favor of the school district who responded to a doctor’s note diagnosing anxiety and depression with immediate supports and initiating an evaluation. The case illustrates the perils of informal communication about disabilities but confirms that not every reference to a disability triggers the obligation to evaluate.
In the Wyoming case, there were several red flags that unfolded for school personnel.

First Red Flag: The parents requested “strict” confidentiality when disclosing to
Continue Reading OCR Decision Highlights Common Child Find Red Flags

ISBE has proposed amendments to the current rules regarding special education. These amendments generally track recent changes in the School Code, including

  • PA 101-0643: Changes related to RTI and MTSS, providing written materials 3 school days prior to IEP meetings, related services logs, and providing notice of missed services. We previously covered this legislation with an overview and tips for implementation. The legislation was effective June 18, 2020.
  • PA 101-0164: Revisions to the process for a school district to withdraw from a special education joint agreement. This legislation was effective July 26, 2019.
  • PA 100-0465: As


Continue Reading Proposed Amendments to Special Education Rules Have Two Curious Provisions

ISBE has adopted new rules to support parent participation in IEP meetings by requiring districts to arrange for and fund “qualified interpreters” for parents whose native language is other than English. We have heard concern from many clients that they do not yet have staff who meet the requirements to be a qualified interpreter. This is not surprising given that the rules are brand new and the requirements are extensive. In the meantime (and on ongoing basis if desired), districts can use outside vendors, including telephonic interpreters. The requirements for qualified interpreters are summarized below. For now, districts should focus
Continue Reading New Rules for Qualified Interpreters in Effect

In the final weeks of the Trump administration, the Department of Education’s Office for Civil Rights (OCR) initiated “proactive investigations” against Seattle Public Schools and the Indiana Department of Education related to special education services during the pandemic. You’ll recall that since the early days of COVID-19 and the first school shut-downs, the Department of Education has maintained that, while the methodology may change, the obligation to provide a free and appropriate public education to students with IEPs and 504 plans remains intact. In October, OCR and the Office of Special Education Programs (OSEP) reiterated that position in two FAQ
Continue Reading Outgoing OCR Opens Investigations Into Special Education Services During Remote Learning

Prior to winter break, we wrote about proposed legislation that would further limit the use of physical restraint and time out in Illinois schools. While many expected the bill to pass during the lame duck session earlier this month, it failed to do so. Some opposition continues, but we do expect the bill to be taken up again in the spring.
In the meantime, we’ll be sharing a checklist of the current requirements for policies, procedures, and training in the IAASE blog next week. The final regulations issued last spring remain in effect and do make significant changes to the
Continue Reading Physical Restraint and Time Out Update

*Also authored by Mikaila John  
The COVID-19 pandemic has presented hardships for all students and school leaders, and it has been particularly challenging for students with disabilities and their IEP teams. Over the last nine months,  districts and schools have been trying to figure out the most practical and effective ways to deliver special education and related services in a remote and hybrid learning environment. At the same time, a growing number of parents have brought due process complaints and state complaints to challenge the adequacy of those services. As those cases slowly work their way through the system, we
Continue Reading Is Providing Services to the Greatest Extent Possible Enough?

Over the past year, the use of physical restraint and seclusion in schools has come under increased scrutiny. While ISBE issued emergency rules at the end of last November, followed by a series of updates and then final rules in April 2020, state and federal legislators have also been working on proposed laws that would both limit the use of physical restraint and seclusion and require plans to decrease the use of these techniques over time.
The Illinois legislation, Senate Bill 2315, was introduced last November. After input from stakeholders and various revisions, the bill appeared ready to move during
Continue Reading Proposed State and Federal Legislation Would Further Reduce Physical Restraint and Time Out in Schools

While much of the talk about Biden’s education agenda has quickly turned to who he will appoint to replace Betsy DeVos and how he will manage the COVID-19 pandemic, both critical issues for sure, we wanted to highlight Biden’s agenda related to special education. In his campaign, Biden made several important statements about his aims on this topic. Most importantly, he supports full funding of the Individuals with Disabilities Education Act (IDEA). The law provides for federal funding up to 40% of the average per pupil expenditure, but actual expenditures fall far short of that mark. The federal
Continue Reading What Will a Biden-Harris Administration Mean for Special Education?

OCR recently published a Q&A document providing expectations for compliance with civil rights laws during the pandemic. While OCR is not responsible for enforcing the IDEA, it is responsible for Section 504. Because students with IEPs are generally also protected by Section 504, the new guidance is applicable to students both with Section 504 plans and with IEPs. At the same time, OSEP published a Q&A document providing guidance specifically related to the IDEA. Much of the guidance will sound familiar, but you may find a few surprises.
OCR Q&A

  • Return to in-person instruction.

OCR advises there may be circumstances
Continue Reading OCR and OSEP Issue New Q&As related to Special Education in the Current COVID-19 Environment

Now that many of us have been doing some form of remote learning for close to 7 months, we are starting to see hearing officers and state agencies weigh in to resolve complaints related to the appropriateness of remote special education services. While we have not yet seen any Illinois decisions, a review of decisions from other states may shed some light on trends and approaches. Read on for a sample of recent cases and takeaways that may be relevant to your school.

Participation in Remote Learning

In a due process case in Washington, DC, the student had previously been
Continue Reading What Are Hearing Officers Saying about Remote Learning?

While only a handful of cases have been reported related to districts’ provision of special education services remotely, we are watching carefully for lessons learned. So far, courts have not required in-person instruction as stay-put, but have indicated the importance of providing remote services tailored to student needs. These early cases reinforce our guidance to make individualized decisions to meet student needs in these extraordinary circumstances. Further, documenting these determinations in an individualized remote learning plan that is incorporated into the student’s IEP can help guard against both procedural and substantive challenges.

The first case comes from the District of
Continue Reading Will Hearing Officers and Courts Order In-Person Instruction as Stay-Put?