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    Brickton montessori school   legal update Brickton montessori school legal update Document Transcript

    • BRICKTON MONTESSORI SCHOOL LEGAL UPDATE 2006 January 4, 2006 9 - 11 a.m. Presented by: Brooke R. Whitted Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX Website: www.whittedclearylaw.com Email: bwhitted@whittedclearylaw.com 1
    • BRICKTON MONTESSORI SCHOOL Legal Update 2006 January 4, 2006 9:00 - 11:00 a.m. AGENDAI. Introduction and Overview A. What We’ll cover B. Explanation of MaterialsII. Abuse and Neglect ReportingIII. Non-custodial ParentsIV. Dealing with Difficult Parents & Mental Health IssuesV. Special Education – What You Need to Know About Recent ChangesVI. Record Keeping Issues and QuestionsVII. Questions & Answers 1
    • TABLE OF CONTENTSThe Illinois Abused andNeglected Children’s Reporting Act…………………. 3 - 13Non-Custodial Parent Issues ........................................ 14 - 20The 2004 IDEIA........................................................... 21 - 41School Student Records Act......................................... 42 – 48Release Forms .............................................................. 49 – 50 2
    • THE ILLINOIS ABUSED AND NEGLECTED CHILDREN’S REPORTING ACT (“ANCRA”) Brooke R. Whitted Lara A. Cleary Whitted Cleary & Takiff LLC 3000 W. Dundee Road Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 (Facsimile) Whittedlaw@aol.com (Email) 3
    • THE ILLINOIS ABUSED AND NEGLECTED CHILDRENS REPORTING ACT ("ANCRA")I. DEFINITIONS A. Child - Any person under 18 unless legally married B. Abused Child "Abused child" means a child whose parent or immediate family member, or any person responsible for the childs welfare, or any individual residing in the same home as the child, or a paramour of the childs parent: a. inflicts, causes to be inflicted, or allows to be inflicted upon such child physical injury, by other than accidental means, which causes death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function; b. creates a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function; c. commits or allows to be committed any sex offense against such child, as such sex offenses are defined in the Criminal Code of 1961, as amended, and extending those definitions of sex offenses to include children under 18 years of age; d. commits or allows to be committed an act or acts of torture upon such child; or e. inflicts excessive corporal punishment. C. Neglected Child Any child who is not receiving proper nourishment or medically indicated treatment or other care necessary for childs well being including food, clothing and shelter or child who is abandoned or child whose urine contains any amount of a controlled substance. 4
    • 1. Exceptions: a. Where medical treatment of mother results in illegal urine content; b. Parents depend upon prayer alone for childs medical care; c. Not neglected solely because child is not attending school. D. Person Responsible For Childs Welfare "Person responsible for the childs welfare" means the childs parent; guardian; foster parent; any person responsible for the childs welfare in a public or private residential agency or institution; any person responsible for the childs welfare within a public or private profit or not for profit child care facility; or any other person responsible for the childs welfare at the time of the alleged abuse or neglect, or any person who came to know the child through an official capacity or position of trust, including but not limited to health care professionals, educational personnel, recreational supervisors, and volunteers or support personnel in any setting where children may be subject to abuse or neglect. E. Temporary Protective Custody "Temporary protective custody" means custody within a hospital or other medical facility or a place previously designated for such custody by the Department, subject to review by the Court, including a licensed foster home, group home, or other institution; but such place shall not be a jail or other place for the detention of criminal or juvenile offenders.II. PERSONS REQUIRED TO REPORT 5/4 Persons required to report-Medical personnel-Privileged communications-Transmitting false report § 4. Any physician, resident, intern, hospital, hospital administrator and personnel engaged in examination, care and treatment of persons, surgeon, dentist, dentist hygienist, osteopath, chiropractor, podiatrist, substance abuse treatment personnel, Christian Science practitioner, coroner, medical examiner, emergency medical technician, crisis 5
    • line or hotline personnel, school personnel, educational advocate assigned to a child pursuant to the School Code, truant officers, social worker, social services administrator, domestic violence program personnel, registered nurse, licensed practical nurse, director or staff assistant of a nursery school or a child day care center, recreational program or facility personnel, law enforcement officer, registered psychologist and assistants working under the direct supervision of a psychologist, psychiatrist, or field personnel of the Illinois Department of Public Aid, Public Health, Mental Health and Developmental Disabilities, Corrections, Human Rights, Rehabilitation Services, or Children and Family Services, supervisor and administrator of general assistance under The Illinois Public Aid Code, probation officer, or any other foster parent, homemaker or child care worker having reasonable cause to believe a child known to them in their professional or official capacity may be an abused child or a neglected child shall immediately report or cause a report to be made to the Department. Whenever such person is required to report under this Act in his capacity as a member of the staff of a medical or other public or private institution, school, facility or agency, he shall make report immediately to the Department in accordance with the provisions of this Act and may also notify the person in charge of such institution, school, facility or agency or his designated agent that such report has been made. Under no circumstances shall any person in charge of such institution, school, facility or agency, or his designated agent to whom such notification has been made, exercise any control, restraint, modification or other change in the report or the forwarding of such report to the Department.III. SUSPENSION OF ALL PRIVILEGED COMMUNICATION The privileged quality of communication between any professional person required to report and his patient or client shall not apply to situations involving abused or neglected children and shall not constitute grounds for failure to report as required by this Act. A. Immunity 5/9. Immunity from liability-Presumption 6
    • § 9. Any person, institution or agency, under this Act, participating in good faith in the making of a report or referral, or in the investigation of such a report or referral or in the taking of photographs and x-rays or in the retaining a child in temporary protective custody shall have immunity from any liability, civil, criminal or that otherwise might result by reason of such actions. For the purpose of any proceedings, civil or criminal, the good faith of any persons required to report or refer, or permitted to report, cases of suspected child abuse or neglect or permitted to refer individuals under this Act, shall be presumed.IV. ANYONE ELSE CAN MAKE A REPORT In addition to the above persons required to report suspected cases of abused or neglected children, any other person may make a report if such person has reasonable cause to believe a child may be an abused child or a neglected child.V. EMPLOYEE STATEMENT IN WRITING REQUIRED Any person who enters into employment on and after July 1, 1986 and is mandated by virtue of that employment to report under this Act, shall sign a statement on a form prescribed by the Department, to the effect that the employee has knowledge and understanding of the reporting requirements of this Act. The statement shall be signed prior to commencement of the employment. The signed statement shall be retained by the employer. the cost of printing, distribution, and filing of the statement shall be borne by the employer.IV. FALSE REPORTS ARE A CRIME Any person who knowingly transmits a false report to the Department commits the offense of disorderly conduct under subsection (a)(7) of Section 26-1 of the "Criminal Code of 1961". Any person who violates this provision a second or subsequent time shall be guilty of a Class 4 felony. Any person who knowingly and willfully violates any provision of this Section, other than a second or subsequent violation of transmitting a false report as described in the preceding paragraph, shall be guilty of a Class A misdemeanor. 7
    • VII. HEALING BY SPIRITUAL MEANS NOT IN AND OF ITSELF SOLE FACTOR OR DETERMINANT OF NEGLECT OR ABUSE A child whose parent, guardian or custodian in good faith selects and depends upon spiritual means through prayer alone for the treatment or cure of disease or remedial care may be considered neglected or abused, but not for the sole reason that his parent, guardian or custodian accepts and practices such beliefs.VIII. CASES A. Pesce v. Morton H.S. (1987) 830 F.2d 789 Psychologists Federal Right of Confidentiality (under FERPA) did not overcome reporting requirements. B. People v. Morton (1989) 543 N.E.2d 1366 DMHDDCA confidentiality is "destroyed" where defendant made admissions to hospital MSW and she was then called on to testify. C. Brown v. Farkas (1986) 511 N.E.2d 1143 A made a false ANCRA report and was then sued by subject of report - He got 1 million - court said the million was OK even though first false report was only A misdemeanor. 8
    • IX. DEATH CAUSED BY ABUSE OR NEGLECT MUST ALSO BE REPORTED TO THE COUNTY MEDICAL EXAMINER OR CORONER, IF REPORT IS BY A MANDATED REPORTER 1. If a hospital makes the report, they must be given coroners findings within 72 hours, and 21 days in written form.X. TEMPORARY P.C. A. Who can take P.C.? 1. Police officer 2. Probation officer 3. DCFS employee 4. Physicians B. When to take P.C.? 1. Continued residence with person responsible for childs care poses an imminent danger to the childs life or health; - AND - 2. There is no time to apply for a juvenile court order for temporary custody. C. What to do if you take P.C.? 1. Must make every effort to notify childs caretaker; 2. Must notify DCFS (DCFS then must give you any information it has on childs testing HIV positive, or for any other communicable disease). 3. Physicians must notify the hospital administrator, who then becomes the temporary custodian. D. What does a temporary custodian have authority to do? 1. Consent to emergency medical treatment; 2. Provide care, shelter, nourishment; 9
    • 3. Is cloaked in full immunity from civil or criminal liability when acting in good faith, for care, disclosures, etc.XI. MAKING REPORTS A. Phone central register, give the following information: 1. Name, address of child and parents; 2. Age 3. Nature of childs condition 4. "Other helpful information" B. Confirmation by DCFS DCFS must make oral reports of abuse to local police and states attorney and confirm within 48 hours in writing - for certain listed acts of abuse, "including but not limited to" brain damage, skull fractures, subdural hematomas, and, internal injuries, torture of a child, malnutrition of a child, and sexual abuse to a child, including, but not limited to, sexual intercourse, sexual exploitation, sexual molestation, and venereal disease in a child age twelve and under. C. Admissibility of Reports and Abuse of Children in Institutions Written confirmation reports from persons not required to report by this Act may be made to the appropriate Child Protective Service Unit. Written reports from persons required by this Act to report shall be admissible in evidence in any judicial proceeding relating to child abuse or neglect. Reports involving known or suspected child abuse or neglect in public or private residential agencies or institutions shall be made and received in the same manner as all other reports made under this Act.XII. INVESTIGATIONS A. Must be commenced immediately If - 1. Immediate safety or well being of child is endangered; 2. Family may flee 3. Child may disappear 4. "The facts otherwise so warrant." 10
    • B. In all other cases, within 24 hours of receiving the report. But there is a loophole; upon receipt of a report, the Child Protective Service Unit shall "make an initial investigation" and an "initial determination" whether the report is a good faith indication of alleged child abuse or neglect. C. Elements of the "formal" investigation 1. Direct contact with subject(s) of report; 2. Determination of the risk to children; 3. Nature, extent and cause of the childs condition; 4. Name, age and condition of other kids in the home; 5. Whether there is an immediate and urgent necessity to remove the child if appropriate family preservation services are provided. D. The person being investigated is notified unless the DCFS Director determines the notice would be detrimental to the investigation. E. Where investigation is for abuse by a "school employee" or on school grounds, there are requirements that the school day and/or class shall not (to extent possible) be disrupted; employee must be informed of due process rights; right to confront accuser, etc. F. If the Department has to contact an employer, and report is unfounded, DCFS must likewise notify the employer. G. At 325 ILCS 5/7.17, Expungement procedures are outlined. XIII. RIGHT OF REPORTER TO HAVE INFORMATION ON STATUS 5/11.2 Disclosure to mandated reporting sources § 11.2 Upon request, a mandated reporting source as provided in Section 4 of this Act may receive appropriate information about the findings and actions taken by the Child Protective Service Unit in response to its report. P.A. 79-65, § 11.2, added by P.A. 81-1077, § 1, eff. July 1, 1980.XIV. PUBLICIZING DISCLOSED INFORMATION 11
    • 5/11.3 Publicizing disclosed information-Court actions-Violations § 11.3 A person given access to the names or other information identifying the subjects of the report, except the subject of the report, shall not make public such identifying information unless he is a States attorney or other law enforcement official and the purpose is to initiate court action. Violation of this Section is a Class A misdemeanor.XV. RECORDS CONFIDENTIALITY 5/11. Confidentiality of records-Violations § 11. All records concerning reports of child abuse and neglect or records concerning referrals under this Act and all records generated as a result of such reports or referrals, shall be confidential and shall not be disclosed except as specifically authorized by this Act or other applicable law. It is a Class A misdemeanor to permit, assist, or encourage the unauthorized release of any information contained in such reports, referrals or records.XVI. EMPLOYER DISCRIMINATION NOT ALLOWED 5/9.1. Employer discrimination § 9.1 Employer discrimination. No employer shall discharge, demote or suspend, or threaten to discharge, demote or suspend, or in any manner discriminate against any employee who makes any good faith oral or written report of suspected child abuse or neglect, or who is or will be a witness or testify in any investigation or proceeding concerning a report of suspected child abuse or neglect. 12
    • XVII. REPORTERS MUST TESTIFY 5/10. Testimony by person making report § 10. Any person who makes a report or who investigates a report under this Act shall testify fully in any judicial proceeding resulting from such report, as to any evidence of abuse or neglect, or the cause thereof. Any person who is required to report a suspected case of abuse or neglect under Section 4 of this Act shall testify fully in any administrative hearing resulting from such report, as to any evidence of abuse or neglect or the cause thereof. No evidence shall be excluded by reason of any common law or statutory privilege relating to communications between the alleged perpetrator of abuse or neglect, or the child subject of the report under this Act and the person making or investigating the report.Brooke R. WhittedLara A. ClearyWhitted Cleary & Takiff LLC3000 W. Dundee RoadSuite 303Northbrook, IL 60062(847) 564-8662(847) 564-8419 (Facsimile)Whittedlaw@aol.com (Email) 13
    • NON-CUSTODIAL PARENTS: LEGAL ISSUES Who Has The Authority To Do What? Brooke R. Whitted WHITTED, CLEARY & Takiff, LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 847/564-8662; 847/564-8419 (Fax) Email: Whittedlaw@aol.com Website: www.whittedclearylaw.com 14
    • NON-CUSTODIAL PARENTS By Brooke R. WhittedI. Definitions What is custody? What is guardianship? What legal relationship does astepparent have to a child who lives in the home? What is joint custody? All of thesequestions are asked on a regular basis by education professionals. The context varies:sometimes a residency question is involved. At other times, educators are attempting tounsnarl a complicated thicket of relationships just to figure out who has the authority tosign a form to release information or initiate services. The purpose of this memorandumis to inform the reader with respect to the latter quandary, using relevant statutorydefinitions as well as providing a tool with which to analyze whether an individualasserting 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. 1A "representative" is defined in the same act as a standby guardian, temporaryguardian, and a guardian. 2 These terms are defined by the Probate Act, 3 as well as acomparatively new addition known as "short-term guardian," 4 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 comprehensivedefinitions: (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 minor1 755 ILCS 5/1-2.08.2 755 ILCS 5/1-2.15.3 755 ILCS 5/1-2-23, et al.4 755 ILCS 5/1-2.24. 15
    • 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 (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 minors religious affiliation, and the responsibility for his support. 5 (All emphasis is added) It also tends to be confusing to most people when conflicting statutory definitionsare encountered. For example, the term "minor" is defined above in the Juvenile CourtAct 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 a5 705 ILCS 405/1-3 16
    • 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 individuals eligibility for such a program. 6 To add to the confusion, the Parental Responsibility Act defines "minor" as aperson between the ages of 11 and 19! 7 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". 8 (Emphasis added) The School Code, however, defines "parent" as "a parent or legal guardian of anenrolled student of an attendance center [for cities over 500,000]."9 However, forhomeless children the School Code defines "parent" as "the parent or guardian havinglegal or physical custody of a child." (emphasis added) 10 It is well established that in most circumstances for school purposes, there mustbe 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 thathe or she has authority over the child must be questioned. Unless there has been anadoption, court-ordered guardianship, or other document that gives the stepparent legalauthority, there is no authority. Likewise, in the case of a non-custodial parent whoappears at a staffing or in the administrators office and asserts authority over the child.At the very least, a non-custodial parent should sign a document certifying that he orshe has the authority so claimed.II. Introduction to the Problem The issue of what rights a so-called "non-custodial" parent has is cropping upwith increasing frequency. For example, in the case of Navin vs. Park Ridge SchoolDistrict #64, 11 the non-custodial parent, who under the divorce decree only had a rightto information and not concerning any educational decision making, requested a dueprocess hearing demanding more services. The hearing officer dismissed the requeston the basis that the father, as the requesting party, was the non-custodial parent andhad no right to request a due process hearing. The District (trial) Court agreed andaffirmed the decision of the hearing officer, but the Federal Appellate Court disagreed6 225 ILCS 10/2.01.7 740 ILCS 115/2(2)8 740 ILCS 115/2(1)9 105 ILCS 5/34-1.110 105 ILCS 45/1-511 36 IDELR 235 17
    • and remanded the case to the District Court for further proceedings. In this somewhataberrant opinion, U.S. District Judge Conlon outlines the facts of the case, including theAppellate Courts order (to her) to readjudicate the case. She then concluded that shecouldnt do anything until a hearing officer had actually made a determination of thenon-custodial parents claims of certain procedural violations. Therefore, the DistrictCourt judge who had the case remanded to her again remanded the case down to thehearing officer. The hearing officer was compelled to actually hold a hearing to examinethe non-custodial fathers complaints and from which, if he is aggrieved, he would thenhave 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 mustconsider procedural claims made by non-custodial parents even though the decreedoes not give them any right to determine educational programming. Our opinion is thatthis decision creates meaningless work in a very narrow area of non-custodial parentrights, 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 responsibilities of the parties. This is always on file in a court clerks 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) dont 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 dont 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 18
    • he or she requests such in writing. 12 However, for school records, which are governed by the Family Educational Rights and Privacy Act (FERPA) 13 , there is no such restriction on the childs 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 Act 14 . Different rules apply to the release of mental health information and these are very specific. The attached form contains a second 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 lawgenerally requires that the custodial parent authorize services. Cases have shown thatwhen the non-custodial parent attempts to initiate services, the courts have invalidatedthe authorization. Thus, educators should take some steps to verify the authority of thecustodial parent who seeks to authorize initiation, change, or cessation of services.Quite possibly, the attached Certification of Authority would be sufficient if there is any12 Dymek v. Nyquist, 128 Ill.App.3d 859, 469 N.E.2d 65913 FERPA, 20 U.S.C. § 1232g; 34 CFR Par 9914 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 ortemporary school records fall under the Family Educational Rights and Privacy Act (“FERPA”) regulations, and aregenerally exempted from HIPAA regulations. 19
    • doubt. However, in cases with serious potential consequences, there is no equal toactually checking the court file.C. Incarcerated Parents When the parent or guardian has been incarcerated, other issues may need tobe considered. Depending on the offense, it is possible that the rights of the parent mayhave been terminated. If such is the case, then there might be a private guardianappointed or, alternatively, the child may be a ward of the state. If the child is a ward ofthe state, the state guardian (DCFS usually, in Illinois) controls decision-making. Ifthere is a private guardian, you can usually ask for the "letters of office" which shouldcontain all of the guardians 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 thoughincarcerated, for the purpose of obtaining consents. Likewise, an incarcerated parentcontinues have the legal authority to consent to information disclosure unless parentalrights have been fully terminated. 20
    • THE 2004 IDEIA Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062(847) 564-8662 (847) 564-8419 FAXWebsite: www.whittedclearylaw.com 21
    • IDEIA RE-AUTHORIZATION The new Individuals with Disabilities Education Improvement Act of2004 (“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 fewsections 15 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 ofEducation in response to the reauthorization. However, Illinois legislators aregearing up for taking action and have proposed House Bill 160 (which can befound at www.ilga.gov), which attempts to amend the School Code byprohibiting ISBE from establishing any rules and regulations which conflictwith or exceed the rules and regulations 16 established by the U.S. Departmentof Education in IDEIA 2004. Until the Federal rules, currently in draft form during this commentsession, are finalized the full impact upon parents and districts is unknown. Asummary of the most significant changes in IDEIA follows.15 These sections are highlighted in the following pages.16 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. 22
    • SUMMARY OF IDEIA 2004 CHANGESSection Change ImpactPurpose: (20 U.S.C. 1400 § 601) Adds language “to the maximum extent Congress has changed the standard for possible” in several sections of the special education students from merely purpose of IDEIA. 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 Releasing information to “other relatives”“Parent” and “or other relative with whom the of a child could be a disaster under current child lives or who is legally responsible state confidentiality laws. Districts will for the child’s welfare…” have to be diligent to ensure the information they are releasing to “other family members” who 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 Should Illinois be one of the 15 states(20 U.SC. 1400 § 609) of Education to “grant waivers of involved in this pilot program, it is statutory requirements of, or regulatory difficult to imagine how it will be possible requirements relating to, Part B for a to decrease the amount of paperwork period of time not to exceed 4 years related to special education while still with respect to not more than 15 states preserving procedural safeguards. 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.” 24
    • Section Change Impact Related Services: Changed previous text of “school health The exclusion of “a medical device that is (20 U.SC. 1400 § 602(26)) services” to “school nurse services.” surgically implanted” is thought to relate Also added “interpreting services,” and to Cochlear implants, which is a field of specifically excluded “a medical device special education litigation that has that is surgically implanted, or the increased significantly in the last few replacement of such a device.” years. Much of the current case law requires school districts to pay for the mapping 17 of a child’s Cochlear implant, not the implantation itself. Child Find Requirements: Adds new language stating that districts This new language regarding child find 20 U.SC. 1400 § 612(a)(1)(C) are now required to provide child find requirements suggests that local school services for homeless children and districts have to pay for some services for children who are wards of the state. private school children in their area, despite the fact that the child’s parents are Also provides that districts are now not residents of that school district. responsible for “child find” Current law in Illinois states that the local requirements for all private schools in school district of a child in a private their geographic area, and that they placement does have to serve these must meet with private school children, however the school district in employees “throughout the year” to which their parents reside has to pay for discuss with these representatives those services. It will be interesting to see “types of services” “how such services how this affects current residency law. will be appropriated if funds are insufficient to serve all children,” and “how and when these decisions will be made.” (continued on next page)17 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. 25
    • Section Change Impact Child Find Requirements: Districts also are required to submit a See previous page 20 U.SC. 1400 § 612(a)(1)(C) form to ISBE 18 that the private school (cont’d) administrator has signed indicating their child find requirements have been satisfied. 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.18 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. 26
    • Section Change Impact Teacher Certification: States that all teachers must meet the While most school districts are already in 20 U.S.C. 1400 § 612(a)(14)(C) “highly qualified” requirements of the the process of changing their teacher No Child Left Behind Act (“NCLB”) 19 requirements due to NCLB, this most and must hold at least a bachelor’s significantly impacts school districts who degree. have 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 Parents of children with ADHD who 20 U.SC. 1400 § 612(a)(25) specifically prohibits school districts choose not to medicate cannot be treated from refusing educational services to differently. parents who choose not to medicate their children. Timeline for Initial Case Study The new section states that school Illinois rules state that school districts Evaluation: (“CSE”) districts must complete CSE’s within 60 have 60 school days to complete CSEs. 20 U.SC. 1400 § 614(a)(1)(C)(i)(I) calendar days, however this section This should apply, however many school does provide that states may utilize their districts are taking a conservative own timelines if they have a timeline. approach and doing CSEs in 60 calendar days.19 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. 27
    • Section Change Impact Reevaluations: New language has been added to the 20 U.SC. 1400 § 614(a)(2)(B) effect that reevaluations cannot be performed more than once a year unless the school and parent agree otherwise. Eligibility Determination: Language added states that children are This additional language suggests 20 U.SC. 1400 § 614(a)(5) not to be found eligible for special children can no longer be found eligible education services if the determinate for a Learning Disability if they have not factor is a lack of appropriate previously specifically received reading instruction in the essential components instruction based on phonics. This is the of reading instruction (as defined in the first time that the IDEA has ever NCLB 20 ). identified (and required school districts to use) specific teaching methodologies Eligibility Termination: New language includes a provision that Many comments have expressed that this 20 U.SC. 1400 § 614(c)(5)(B)(ii) school districts have to provide “a requirement may be troublesome. The summary of the child’s academic proposed federal regulations so far achievement and functional provide no guidance as to the form or performance, including content of this summary and many school recommendations on how to assist the districts are struggling over what child in meeting… postsecondary information should be contained. goals,” upon discontinuing special education services for a child. (including graduation and aging out of the sped system).20 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. 28
    • Section Change ImpactSpecific Learning Disabilities A school district is not required to take This language dispels the belief that justEligibility: into consideration whether the child has because a child has a “severe discrepancy”20 U.SC. 1400 § 614(b)(6)(A) a severe discrepancy between between IQ scores in certain areas they achievement and intellectual ability in are automatically found eligible for oral expression, listening special education services under the LD comprehension, written expression, category. Likewise, districts may no basic reading skill, reading longer restrict themselves to a discrepancy comprehension, mathematical analysis alone, which is what they should calculation or mathematical reasoning. have been doing all along anyway. 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.IEPs: Adds text to allow 15 states (which While this initially was shocking to parentMulti-Year IEP Determination Pilot have yet to be identified) to develop attorneys and advocates, the languageProgram: “multi-year” IEPs (every three years) included in this section still requires(20 U.S.C. 1400 614(d)(5)(A) for certain students as opposed to the parental consent before implementing a current annual reviews required by law. “multi-year” IEP. In addition, annual States must submit a proposal to the goals are still required for the IEP and “an federal government in order to be annual review must be conducted to considered part of this program. determine the child’s progress toward the annual goals.” If the child is not progressing toward the goals, then the IEP must be redrafted. 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. 29
    • Section Change ImpactIEPs: This section omits the requirements for It will be more difficult for parents andShort term objectives: short-term goals, and instead states that districts to prove definitively whether the20 U.SC. 1400 § 614(d)(1)(A)(i)(I)(cc) IEPs must contain “a statement of child is meeting annual goals, as measurable annual goals, including “measurable objectives” are no longer academic and functional goals…” required. Measurable yearly goals are Districts may use benchmarks or now required. objectives however, objectives are still necessary for those students who are receiving alternative assessments.IEPs: New language discontinues the need for While most Illinois elementary and highStudent progress: quarterly progress reports, and instead schools do issue progress reports and20 U.SC. 1400 § 614(d)(1)(A)(i)(III) only issues a suggestion for the report cards more than once a year, a progress reports to be issued district could potentially only have an “concurrent with the issuance of report obligation to track a special education cards.” 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. 30
    • Section Change ImpactIEPs: The new language pushes the This new language significantly increasesTransition Services: requirement for transition services the requirements for transition planning,20 U.SC. 1400 § 614(d)(1)(A)(i)(VIII) planning from 14 to “beginning not but raises the age when the District has to later than the first IEP to be in effect begin the process. The current rules in when the child is 16…” It also requires Illinois still require the process to begin at the team to draft “appropriate age 14. Many school districts are measurable postsecondary goals based continuing to use age 14 as a conservative upon age appropriate transition approach. 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.”IEPs New language states that if a required This might potentially mean that districtsIEP Attendance and Excusal: IEP team member’s “area of curriculum could have only one representative (the20 U.SC. 1400 § 614(d)(1)(C)(i), (ii) or related services is not being LEA representative) present at an IEPand (iii) modified or discussed in the meeting” meeting as long as summary reports are and if the parent and district agree the provided by all other participants. attendance of a mandatory IEP Remember, an advance report by the participant is not necessary, then that absent participant will be required if the member does not have to participate. person’s area of curriculum or related Requires written agreement by the services is at issue and written parent parent. agreement must always be obtained prior to that individual’s excusal. 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 (continued on next page) 31
    • Section Change Impact 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.”Procedural Safeguards: This new language now assigns a Although it was never specificallyStatute of Limitations: uniform statute of limitations (two included within Illinois’ rules and20 U.SC. 1400 § 615(f)(3)(D) years before the date the parents or regulations, case law has affirmed that the public agency “knew or should have statute of limitations is generally a two- known”) regarding IDEA cases. year period, so not a real change for Illinois.Due Process Complaint Notice and New language indicates that after a When IDEA was originally created, theAmended Complaint Notice: party files for due process, the party due process provision was created in order20 U.SC. 1400 § 615(f)(3)(B), (D) and receiving the request has 15 days to for parents to be able to represent their(E) object to the sufficiency of the request. own children at hearing, so they did notand 20 U.SC. 1400 § 615(o) If the receiving party does not object to have to pay for lawyers. With the addition the request, then it is “shall be deemed of this language, it could be argued that a sufficient.” If the receiving party does hearing officer could dismiss a due object to the request, then the hearing process complaint on its face without an officer assigned to the case will opportunity for the parent to correct the determine if the request meets legal complaint. While parents are allowed to requirements. file a separate complaint with new issues listed, they might not be savvy enough to This provision also states that the party properly word their complaint and could filing the due process request may not be left with no remedy. One impression of raise additional issues other than those this provision is that it could lead to “full listed in the request, at hearing, unless employment for lawyers.” the other party agrees. ….. continued on next page) 32
    • Section Change Impact 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. However, another new provision This takes from one and gives to the other indicates that nothing precludes parents and raises other issues regarding from filing a separate due process consolidation of claims, tolling of complaint for issues not listed on timeline, etc previous complaints.Response to Due Process Complaint: Another provision has been added that Important new ten-day timeline! It is20 U.SC. 1400 § 615(c)(2)(B)(ii) once a party has received a due process unclear whether an IEP which addresses request, they are required to answer or the issues in the complaint may suffice as respond to the specific issues listed in a “response.” 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. 33
    • Section Change ImpactResolution Session: After a district receives a request for It is believed that this provision was20 U.SC. 1400 § 615(f)(1)(B)(ii) due process, it is mandated to convene a added to encourage resolution without the meeting, called a “resolution session”, need for involvement of attorneys or to try to resolve the complaint within 15 hearing officers. days of receiving the parent’s complaint, unless both parties agree to This provision also brings into question waive this meeting. The section further whether parents will be able to bring states that if a parent does not attend nonlegal “advocates” with them (as the meeting with an attorney, then opposed to attorneys) without the district the district’s attorney cannot be being able to also be represented. 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) 34
    • Section Change ImpactResolution Session: (cont’d) If both parties agree to hold the meeting It is also unclear when the deadlines for20 U.SC. 1400 § 615(f)(1)(B)(ii) and resolve the situation amicably, then due process resolution begin. Some this IEP will be considered a legally attorneys believe this section means the binding agreement between both countdown for resolution of due process parties. However, the agreement can be does not begin until after the “resolution voided by either party within three days session.” However, others will find ways of execution. to argue that the timeline for resolution of due process is triggered when the request If both parties have not reached a is initially filed and is not stayed by any settlement within 30 days after the due mediation or attempt to resolve the process request was filed, then the complaint. 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: A new provision has been added stating While this section first appeared shocking20 U.SC. 1400 § 615(i)(3)(D)(ii) that a court may award attorney’s fees to most parents, it is believed that to prove to a district “against the attorney of a a case is “frivolous, unreasonable or parent” who: 1) files a complaint that is without foundation” will (as is now the frivolous, unreasonable or without case in all litigation) be extremely foundation and 2) who continues to difficult. However, if a school district litigate after the litigation clearly pursues a parent under this section, even became frivolous, unreasonable, or if the parent wins, the resources utilized to without foundation. defend the claim are unduly burdensome (continued on next page) to most families. 35
    • Section Change ImpactAttorneys Fees: (cont’d) A district can also be awarded20 U.SC. 1400 § 615(i)(3)(D)(ii) 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 special20 U.SC. 1400 § 615(k)(1)(D) 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. 36
    • Section Change ImpactManifestation Determination: This provision poses new questions the It is believed the amended language20 U.SC. 1400 § 615(k)(1)(E) IEP team must consider when makes it easier for a school district to determining whether a child’s behavior determine that a child’s behavior was not was or was not a manifestation of their a manifestation of his/her disability. disability: 1) 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 This new section offers parents theManifestation: district does find a child’s behavior to guarantee that if their child is suspended20 U.SC. 1400 § 615(k)(1)(F) be related to his or her disability, then it for more than 10 days in a year, that a is required to: 1) create and FBA and FBA and BIP will be drafted. 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. 37
    • Section Change Impact45-Day Removal: New language specifies that a child’s Taking into consideration that a typical20 U.SC. 1400 § 615(k)(1)(G) and removal may now be implemented for school year is approximately 180 school(k)(1)(H)(2) 45 school days, as opposed to 45 days, removal for 45 days constitutes calendar days. about 25 percent of the school year. A third reason for removal of a child There will also be considerable debate has also been added, which is for regarding the language “serious bodily “inflict[ing] serious bodily injury upon injury.” The section states that the another person while at school, on definition is defined as it is in the U.S. school premises, or at a school function criminal code (18 USC §1365(3)(h), under the jurisdiction of the school which defines it as: district.” “(A) a substantial risk of death; (B) extreme physical pain; The new code has also changed the (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the parental appeals process for these 45- function of a bodily member, organ, or day removals. The new language now mental faculty.” states the child’s placement will remain at the alternative placement during the From this definition, it appears that it will pendency of the dispute. In addition, the be difficult for school districts to define a timeline for completion of an expedited child’s actions as “serious bodily injury,” due process hearing to overturn the however case law will have to determine decision to remove the child has been what is considered “serious.” extended. Formerly, the requirement was for the hearing and opinion to be The new timeline set for “expedited” due completed within 15 calendar days of a process hearings is now more in favor of hearing being requested by the parents. districts, since 30 school days translates to The new language changes this from 15 about 45 calendar days. calendar to 30 school days. 38
    • Section Change ImpactProtections for Children Not Yet New language states that a school New language has significantly restrictedEligible for Special Education and district is deemed to have “knowledge” what is considered “reasonable notice” toRelated Services: that a child has a disability if, before the the school district that a child may have20 U.SC. 1400 § 615(k)(5)(C) behavior occurred: 1) the parent of a had a disability. Former language would child expressed concern, in writing, to allow for a child’s “behavior or the district, 2) the parent requested a performance” to be sufficient notice, CSE, or 3) a teacher of the child or however the new language places added other school district personnel burden on the parents of a child who may expressed specific concerns about a have a disability to be well informed of pattern of behavior to the director of their rights and assertively insure that special education or “other supervisory concerns are brought to the school district personnel.” prior to the child displaying behavior. Training is needed in this area.Preschool Grants: The new language now allows for states If Illinois chooses to create such a policy,20 U.SC. 1400 § 635(c) to have the option of creating a policy then parents who choose these services which would allow parents to choose to will not be afforded the protections continue early intervention services offered under IDEA for special education “until such children… enter students until they are placed into kindergarten,” as opposed to having the kindergarten. responsibility rest solely on the school district upon age three. 39
    • 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). 40
    • PARENTAL WAIVER (IDEIA 2004) The undersigned, parents of _______________________________________, Age_________, by signing this form acknowledge they waive the following in the conduct of today’sIEP meeting: ______________________, required IEP attendee, is a ___________________ (title)and it is agreed that he/she does not need to attend today’s IEP meeting; A re-evaluation in the domain(s) of ___________________________________ _____________________________________________________________________ is not required at this time;An annual review meeting is not required at this time, and it is agreed that current IEPservices will continue into the next academic year. The undersigned recognizes and agrees that he/she has the right to the item waived and, knowingthis, chooses to waive the item at this time. X: _________________________________ Parent/Guardian/Surrogate Witness:_________________________ Date: ________________________ Title: _________________________ Prepared by Whitted Cleary & Takiff LLC, 3000 Dundee Road, Suite 303, Northbrook, IL 60062 (847) 564-8662 Fax: (847) 564-8419 www.whittedcleary.com 41
    • SCHOOL STUDENT RECORDS ACTCOLLECTION, 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 42
    • 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 EducationalRights and Privacy Act of 1974 , the Illinois Student Records Act, and all regulations issuedpursuant to such Acts and the rules of the Illinois State Board of Education. This document is anoverview of the required contents of a school student records policy and compliance with therequirements stated herein may not satisfy all applicable laws. Therefore, it is advised that aschool 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 thestudent and the students parents of their rights under the Illinois School Student Records Act, theRegulations thereto and the policies stated herein.II. OFFICIAL STUDENT RECORDS CUSTODIAN Each school shall designate an official records custodian who is responsible for themaintenance, care and security of all school student records, whether or not such student recordsare in his personal custody or control. The official records custodian shall take all reasonable measures to prevent unauthorizedaccess 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 toinformation which is of clear relevance to the education of the student. Information added to aschool student record shall include the name, signature and position of the person who has addedsuch information and date of its entry into the record. B. Each school shall maintain student permanent records and the informationcontained therein for not less than 60 years after the student has transferred, graduated orotherwise permanently withdrawn from school. C. No school shall maintain any student temporary record or the informationcontained therein beyond its period of usefulness to the student and the school, and in no caselonger than 5 years after the student has transferred, graduated or otherwise permanentlywithdrawn from the school. Notwithstanding the foregoing, a school may maintain indefinitelyanonymous information from student temporary records for authorized research, statisticalreporting or planning purposes, provided that no student or parent can be individually identifiedfrom the information maintained. 43
    • 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 students 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 parents 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 parents or students 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; 44
    • (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 theparent receives prior written notice of the nature and substance of the information proposed to bereleased, and an opportunity to inspect and copy such records in accordance with 105 ILCS 10/5and 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 andkept as a part of the school student record and subject to the access granted herein. 45
    • 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 students 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: 46
    • (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 shallhave: (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 therefore; (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 courtreporter. A typewritten transcript may be prepared by either party in the event of an appeal ofthe 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 afterthe conclusion of the hearing, be transmitted to the parents and the school district. It shall bebased 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 tothe Regional Superintendent within 20 school days after such decision is transmitted. If theparent appeals, the parent shall so inform the school and within 10 school days the school shall 47
    • forward a transcript of the hearing, a copy of the record entry in question and any other pertinentmaterials to the Regional Superintendent. The school may initiate an appeal by the sameprocedures. Upon receipt of such documents, the Regional Superintendent shall examine thedocuments and record to determine whether the school district’s proposed action in regard to thestudent’s record is in compliance with applicable law, make findings and issue a written decisionto the parents within 20 school days of the receipt of the appeal documents. If the subject of theappeal involves accuracy, relevancy or propriety of any entry in special education records, theRegional Superintendent should seek advice from special education personnel. H. A final decision under the procedures established pursuant to 105 ILCS 10/7 maybe 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 childs school student record astatement of reasonable length setting forth their position on any disputed information containedin that record. The school shall include a copy of such statement in any subsequentdissemination of the information in dispute. 48
    • RELEASE FORMS Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX Website: www.whittedclearylaw.com 49
    • CHILD AUTHORIZATION FOR RELEASE OF CONFIDENTIAL INFORMATION We, the undersigned, do hereby authorize the release of any and all oral and written information concerning ourchild ___________ and our family from any public or private agency, including but not limited to those listed on reverse,to the Law Offices of Whitted & Cleary LLC, 3000 Dundee Road, Suite 303, Northbrook, Illinois 60062. Theinformation requested below is being released for the purpose of assisting our attorneys in representing the best interestsof ourselves and/or our child. We understand that we have the right to limit this consent and choose not to do so at thistime. 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 thecase of a mental health facility, the complete disclosure of medical chart and running record or patient log information isauthorized. Medical chart information shall include but not be limited to intake and discharge summaries, nursingentries, medical reports, consultations, operating room logs, medication logs, or any other information relating to theabove named minor and his/her family. We further understand our right to inspect, copy, challenge, and/or amend thesubject records. In the case of a mental health facility, we understand that should we refuse to sign this release, the requestedinformation will not be disclosed. We understand that we have a right to inspect and copy all information, and that wehave the right to revoke this authorization in writing. Being fully apprised of these rights, it is our intent that this releaseremain in full force and effect until revoked in writing by the undersigned parties, or until the expiration date indicatedbelow, whichever comes first, in order that our attorneys can be fully informed on a continual basis without the necessityfor repeated requests. We further intend that carbon, FAX, photocopies, e-mail or any other form of electronic transmittal of this releaseshall 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: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: _______________________________ 50