Will county probation department legal update - the 2004 ideia

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Will county probation department legal update - the 2004 ideia

  1. 1. WILL COUNTYPROBATION DEPARTMENT LEGAL UPDATE: THE 2004 IDEIA NOVEMBER 2, 2005 RIVER VALLEY JUSTICE CENTER 1 – 4 P.M. BROOKE R. WHITTED NEAL E. TAKIFF Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX Website: www.whittedclearylaw.com
  2. 2. THE 2004 IDEIA Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062(847) 564-8662 (847) 564-8419 FAX Website: www.whittedclearylaw.com
  3. 3. IDEIA RE-AUTHORIZATION The new Individuals with Disabilities Education ImprovementAct of 2004 (“IDEIA 2004”) was signed into law by the President onDecember 3, 2004. The Act went into effect on July 1, 2005, with theexception of a few sections 1 which went into effect immediately. A fullversion 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, Illinoislegislators are gearing up for taking action and have proposed HouseBill 160 (which can be found at www.ilga.gov), which attempts toamend the School Code by prohibiting ISBE from establishing any rulesand regulations which conflict with or exceed the rules and regulations 2established by the U.S. Department of Education in IDEIA 2004. Until the Federal rules, currently in draft form during thiscomment session, are finalized the full impact upon parents and districtsis unknown. A summary of the most significant changes in IDEIAfollows.1 These sections are highlighted in the following pages.2 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.
  4. 4. 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 special possible” in several sections of the purpose education students from merely providing of IDEIA. “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” of“Parent” and “or other relative with whom the child a child could be a disaster under current state lives or who is legally responsible for the confidentiality laws. Districts will have to be child’s welfare…” 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 of Should Illinois be one of the 15 states(20 U.SC. 1400 § 609) Education to “grant waivers of statutory involved in this pilot program, it is difficult to requirements of, or regulatory requirements imagine how it will be possible to decrease relating to, Part B for a period of time not the amount of paperwork related to special to exceed 4 years with respect to not more education while still preserving procedural than 15 states based on proposal submitted safeguards. 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.”
  5. 5. 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.” Also surgically implanted” is thought to relate to added “interpreting services,” and Cochlear implants, which is a field of special specifically excluded “a medical device education litigation that has increased that is surgically implanted, or the significantly in the last few years. Much of replacement of such a device.” the current case law requires school districts to pay for the mapping 3 of a child’s Cochlear implant, not the implantation itself. Child Find Requirements: Adds new language stating that districts are This new language regarding child find 20 U.SC. 1400 § 612(a)(1)(C) now required to provide child find servcies requirements suggests that local school for homeless children and children who are districts have to pay for some services for wards of the state. private school children in their area, despite the fact that the child’s parents are not Also provides that districts are now residents of that school district. Current law responsible for “child find” requirements in Illinois states that the local school district for all private schools in their geographic of a child in a private placement does have to area, and that they must meet with private serve these children, however the school school employees “throughout the year” to district in which their parents reside has to discuss with these representatives “types of pay for those servcies. It will be interesting to services” “how such services will be see how this affects current residency law. appropriated if funds are insufficient to serve all children,” and “how and when these decisions will be made.” (continued on next page)3 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.
  6. 6. Section Change Impact Child Find Requirements: Districts also are required to submit a form See previous page 20 U.SC. 1400 § 612(a)(1)(C) to ISBE 4 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.4 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.
  7. 7. Section Change Impact Teacher Certification: States that all teachers must meet the While most school districts are already in the 20 U.S.C. 1400 § 612(a)(14)(C) “highly qualified” requirements of the No process of changing their teacher Child Left Behind Act (“NCLB”) 5 and requirements due to NCLB, this most must hold at least a bachelor’s degree. significantly impacts school districts who 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 choose 20 U.SC. 1400 § 612(a)(25) specifically prohibits school districts from not to medicate cannot be treated differently. refusing educational services to parents who choose not to medicate their children. Timeline for Initial Case Study Evaluation: The new section states that school districts Illinois rules state that school districts have 60 (“CSE”) must complete CSE’s within 60 calendar school days to complete CSEs. This should 20 U.SC. 1400 § 614(a)(1)(C)(i)(I) days, however this section does provide apply, however many school districts are that states may utilize their own timelines if taking a conservative approach and doing they have a timeline. CSEs in 60 calendar days.5 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.
  8. 8. Section Change Impact Reevaluations: New language has been added to the effect 20 U.SC. 1400 § 614(a)(2)(B) that reevaulations cannot be performed more than once a year unless the school and parent agree otherwise. Eligibility Determination: Language added states that children are not This additional language suggests children can 20 U.SC. 1400 § 614(a)(5) to be found eligible for special education no longer be found eligible for a Learning services if the determinate factor is a lack Disability if they have not previously specifically of appropriate instruction in the essential received reading instruction based on phonics. components of reading instruction (as This is the first time that the IDEA has ever defined in the NCLB 6 ). 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 proposed summary of the child’s academic federal regulations so far provide no guidance as achievement and functional performance, to the form or content of this summary and many including recommendations on how to school districts are struggling over what assist the 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).6 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.
  9. 9. Section Change ImpactSpecific Learning Disabilities Eligibility: A school district is not required to take into This language dispels the belief that just because20 U.SC. 1400 § 614(b)(6)(A) consideration whether the child has a a child has a “severe discrepancy” between IQ severe discrepancy between achievement scores in certain areas they are automatically and intellectual ability in oral expression, found eligible for special education services listening comprehension, written under the LD category. Likewise, districts may expression, basic reading skill, reading no longer restrict themselves to a discrepancy comprehension, mathematical calculation analysis alone, which is what they should have or mathematical reasoning. Instead, a been doing all along anyway. 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 have While this initially was shocking to parentMulti-Year IEP Determination Pilot yet to be identified) to develop “multi- attorneys and advocates, the language included inProgram: year” IEPs (every three years) for certain this section still requires parental consent before(20 U.S.C. 1400 614(d)(5)(A) students as opposed to the current annual implementing a “multi-year” IEP. In addition, reviews required by law. States must annual goals are still required for the IEP and “an submit a proposal to the federal annual review must be conducted to determine government in order to be considered part the child’s progress toward the annual goals.” If of this program. 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.
  10. 10. Section Change ImpactIEPs: This section omits the requirements for It will be more difficult for parents and districtsShort term objectives: short-term goals, and instead states that to prove definitively whether the child is meeting20 U.SC. 1400 § 614(d)(1)(A)(i)(I)(cc) IEPs must contain “a statement of annual goals, as “measurable objectives” are no measurable annual goals, including longer required. Measurable yearly goals are academic and functional goals…” now required. Districts may use benchmarks or 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 high schoolsStudent progress: quarterly progress reports, and instead only do issue progress reports and report cards more20 U.SC. 1400 § 614(d)(1)(A)(i)(III) issues a suggestion for the progress reports than once a year, a district could potentially only to be issued “concurrent with the issuance have an obligation to track a special education of report 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.
  11. 11. Section Change ImpactIEPs: The new language pushes the requirement This new language significantly increases theTransition Services: for transition services planning from 14 to requirements for transition planning, but raises20 U.SC. 1400 § 614(d)(1)(A)(i)(VIII) “beginning not later than the first IEP to be the age when the District has to begin the in effect when the child is 16…” It also process. The current rules in Illinois still require requires the team to draft “appropriate the process to begin at age 14. Many school measurable postsecondary goals based districts are continuing to use age 14 as a upon age appropriate transition conservative 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 IEP This might potentially mean that districts couldIEP Attendance and Excusal: team member’s “area of curriculum or have only one representative (the LEA20 U.SC. 1400 § 614(d)(1)(C)(i), (ii) and related services is not being modified or representative) present at an IEP meeting as long(iii) discussed in the meeting” and if the parent as summary reports are provided by all other and district agree the attendance of a participants. Remember, an advance report by the mandatory IEP participant is not necessary, absent participant will be required if the person’s then that member does not have to area of curriculum or related services is at issue participate. Requires written agreement by and written parent agreement must always be the parent. 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 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.”
  12. 12. Section Change ImpactProcedural Safeguards: This new language now assigns a uniform Although it was never specifically includedStatute of Limitations: statute of limitations (two years before the within Illinois’ rules and regulations, case law20 U.SC. 1400 § 615(f)(3)(D) date the parents or public agency “knew or has affirmed that the statute of limitations is should have known”) regarding IDEA generally a two-year period, so not a real change cases. for Illinois.Due Process Complaint Notice and New language indicates that after a party When IDEA was originally created, the dueAmended Complaint Notice: files for due process, the party receiving the process provision was created in order for parents20 U.SC. 1400 § 615(f)(3)(B), (D) and (E) request has 15 days to object to the to be able to represent their own children atand 20 U.SC. 1400 § 615(o) sufficiency of the request. If the receiving hearing, so they did not have to pay for lawyers. party does not object to the request, then it With the addition of this language, it could be is “shall be deemed sufficient.” If the argued that a hearing officer could dismiss a due receiving party does object to the request, process complaint on its face without an then the hearing officer assigned to the case opportunity for the parent to correct the will determine if the request meets legal complaint. While parents are allowed to file a requirements. separate complaint with new issues listed, they might not be savvy enough to properly word their This provision also states that the party complaint and could be left with no remedy. One filing the due process request may not raise impression of this provision is that it could lead additional issues other than those listed in to “full employment for lawyers.” the request, at hearing, unless the other party agrees. 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. This takes from one and gives to the other and However, another new provision indicates raises other issues regarding consolidation of that nothing precludes parents from filing a claims, tolling of timeline, etc….. separate due process complaint for issues not listed on previous complaints.
  13. 13. Section Change ImpactResponse to Due Process Complaint: Another provision has been added that Important new ten-day timeline! It is unclear20 U.SC. 1400 § 615(c)(2)(B)(ii) once a party has received a due process whether an IEP which addresses the issues in request, they are required to answer or the complaint may suffice as a “response.” respond to the specific issues listed in 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.Resolution Session: After a district receives a request for due It is believed that this provision was added to20 U.SC. 1400 § 615(f)(1)(B)(ii) process, it is mandated to convene a encourage resolution without the need for meeting, called a “resolution session”, to involvement of attorneys or hearing officers. try to resolve the complaint within 15 days of receiving the parent’s complaint, unless This provision also brings into question both parties agree to waive this meeting. whether parents will be able to bring nonlegal The section further states that if a parent “advocates” with them (as opposed to does not attend the meeting with an attorneys) without the district being able to attorney, then the district’s attorney also be represented. cannot be 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)
  14. 14. Section Change ImpactResolution Session: (cont’d) If both parties agree to hold the meeting It is also unclear when the deadlines for due20 U.SC. 1400 § 615(f)(1)(B)(ii) and resolve the situation amicably, then process resolution begin. Some attorneys this IEP will be considered a legally believe this section means the countdown for binding agreement between both parties. resolution of due process does not begin until However, the agreement can be voided by after the “resolution session.” However, either party within three days of execution. others will find ways to argue that the timeline for resolution of due process is If both parties have not reached a triggered when the request is initially filed settlement within 30 days after the due and is not stayed by any mediation or attempt process request was filed, then the hearing to resolve the complaint. 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 shocking to20 U.SC. 1400 § 615(i)(3)(D)(ii) that a court may award attorney’s fees to a most parents, it is believed that to prove a district “against the attorney of a parent” case is “frivolous, unreasonable or without who: 1) files a complaint that is frivolous, foundation” will (as is now the case in all unreasonable or without foundation and 2) litigation) be extremely difficult. However, if who continues to litigate after the litigation a school district pursues a parent under this clearly became frivolous, unreasonable, or section, even if the parent wins, the resources without foundation. utilized to defend the claim are unduly burdensome to most families. (continued on next page)
  15. 15. Section Change ImpactAttorneys Fees: (cont’d) A district can also be awarded attorney’s20 U.SC. 1400 § 615(i)(3)(D)(ii) 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.
  16. 16. Section Change ImpactManifestation Determination: This provision poses new questions the IEP It is believed the amended language makes it20 U.SC. 1400 § 615(k)(1)(E) team must consider when determining easier for a school district to determine that a whether a child’s behavior was or was not a child’s behavior was not a manifestation of manifestation of their disability: 1) If the his/her disability. 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 the guaranteeManifestation: district does find a child’s behavior to be that if their child is suspended for more than20 U.SC. 1400 § 615(k)(1)(F) related to his or her disability, then it is 10 days in a year, that a FBA and BIP will be required to: 1) create and FBA and BIP for drafted. 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.
  17. 17. 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 45 school year is approximately 180 school days,(k)(1)(H)(2) school days, as opposed to 45 calendar removal for 45 days constitutes about 25 days. percent of the school year. A third reason for removal of a child has There will also be considerable debate also been added, which is for “inflict[ing] regarding the language “serious bodily serious bodily injury upon another person injury.” The section states that the definition while at school, on school premises, or at a is defined as it is in the U.S. criminal code (18 school function under the jurisdiction of USC §1365(3)(h), which defines it as: the school 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-day function of a bodily member, organ, or removals. The new language now states mental faculty.” the child’s placement will remain at the alternative placement during the pendency From this definition, it appears that it will be of the dispute. In addition, the timeline for difficult for school districts to define a child’s completion of an expedited due process actions as “serious bodily injury,” however hearing to overturn the decision to remove case law will have to determine what is the child has been extended. Formerly, the considered “serious.” requirement was for the hearing and opinion to be completed within 15 calendar The new timeline set for “expedited” due days of a hearing being requested by the process hearings is now more in favor of parents. The new language changes this districts, since 30 school days translates to from 15 calendar to 30 school days. about 45 calendar days.
  18. 18. Section Change ImpactProtections for Children Not Yet Eligible New language states that a school district is New language has significantly restrictedfor Special Education and Related deemed to have “knowledge” that a child what is considered “reasonable notice” to theServices: has a disability if, before the behavior school district that a child may have had a20 U.SC. 1400 § 615(k)(5)(C) occurred: 1) the parent of a child expressed disability. Former language would allow for a concern, in writing, to the district, 2) the child’s “behavior or performance” to be parent requested a CSE, or 3) a teacher of sufficient notice, however the new language the child or other school district personnel places added burden on the parents of a child expressed specific concerns about a pattern who may have a disability to be well of behavior to the director of special informed of their rights and assertively insure education or “other supervisory personnel.” that concerns are brought to the school district prior to the child displaying behavior. Training is needed in this area.Preschool Grants: The new language now allows for states to If Illinois chooses to create such a policy,20 U.SC. 1400 § 635(c) have the option of creating a policy which then parents who choose these services will would allow parents to choose to continue not be afforded the protections offered under early intervention services “until such IDEA for special education students until children… enter kindergarten,” as opposed they are placed into kindergarten. to having the responsibility rest solely on the school district upon age three.
  19. 19. 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).
  20. 20. REVOCATION OF CONSENT __________________________, PARENT(S) OF ___________________, BY SIGNATURE BELOW,HEREBY CERTIFIES TO THE RIVER VALLEY JUVENILE DETENTION CENTER THAT I (WE) REQUEST THAT RIVERVALLEY DO THE FOLLOWING (PLEASE CHECK ALL THAT APPLY): REVOKE MY CONSENT TO THE ADMINISTRATION OF AN INITIAL SPECIAL EDUCATION CASE STUDY EVALUATION, PRIOR CONSENT FOR THIS EVALUATION WAS PROVIDED BY ______________________ ON ____________________. REVOKE MY CONSENT TO THE ADMINISTRATION OF A SPECIAL EDUCATION REEVALUATION, PRIOR CONSENT FOR THIS REEVALUATION WAS PROVIDED BY ___________________________________ ON _____________________. REVOKE MY CONSENT TO THE ADMINISTRATION OF THE FOLLOWING EDUCATIONAL EVALUATION: _________________________________________________________, PRIOR CONSENT FOR THIS EVALUATION WAS PROVIDED BY______________________________ ON _____________________. REVOKE MY CONSENT TO THE INITIAL SPECIAL EDUCATION PLACEMENT OF MY CHILD. PRIOR CONSENT FOR THIS PLACEMENT WAS PROVIDED BY ______________________________, ON _________________________. REVOKE MY CONSENT TO THE CURRENT SPECIAL EDUCATION PLACEMENT OF MY CHILD. REVOKE MY CONSENT TO THE FOLLOWING SPECIAL EDUCATION AND/OR RELATED SERVICES CURRENTLY BEING PROVIDED TO MY CHILD: __________________________________________________________ __________________________________________________________
  21. 21. BY MY SIGNATURE BELOW I ACKNOWLEDGE AND UNDERSTAND THE FOLLOWING: o THAT MY REVOCATION OF CONSENT IS EFFECTIVE IMMEDIATELY, BUT DOES NOT NEGATE AN ACTION THAT OCCURRED AFTER THE CONSENT WAS GIVEN AND BEFORE IT WAS REVOKED. o SHOULD RIVER VALLEY AND/OR MY LOCAL SCHOOL DISTRICT DISAGREE WITH MY REVOCATION OF CONSENT, THEY MAY, PURSUANT TO ILLINOIS LAW, INITIATE A SPECIAL EDUCATION DUE PROCESS HEARING AGAINST ME. o IF MY REVOCATION OF CONSENT TERMINATES MY CHILD’S SPECIAL EDUCATION SERVICES, I UNDERSTAND THAT MY CHILD WILL NO LONGER RECEIVE ANY OF THE SPECIAL DISCIPLINE PROTECTIONS AFFORDED TO CHILDREN RECEIVING SPECIAL EDUCATION SERVICES. o IF MY REVOCATION OF CONSENT AFFECTS THE ADMINISTRATION OF A REQUIRED THREE YEAR REEVALUATION, I UNDERSTAND THAT FOUR RIVERS AND/OR MY LOCAL SCHOOL DISTRICT MUST, PURSUANT TO ILLINOIS LAW, INITIATE A SPECIAL EDUCATION DUE PROCESS HEARING AGAINST ME.SIGNED: _____________________________________ DATE: _________________________ PARENTSIGNED: _____________________________________ DATE: _________________________ PARENTWITNESS: ____________________________________ DATE: _________________________N:WHITTED & CLEARY PRESENTATIONSRIVER VALLEY JUSTICE CENTER 11-2-05REVOCATION OF CONSENT FORM.DOC
  22. 22. SERVICES AT PRIVATE SCHOOLS: OBLIGATIONS OF SCHOOL DISTRICTS FORVOLUNTARILY ENROLLED STUDENTS AND“UNILATERAL” PARENT PLACEMENTS Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX Website: www.whittedclearylaw.com
  23. 23. PRIVATE SCHOOLS Retroactive Reimbursement Under IDEAI. The Burlington Case A. Introduction Prior to the Burlington case, 7 it was very difficult for advocates to argue on behalf of parents that retroactive reimbursement was a remedy which might be available under IDEA. Nevertheless, in 1985, the Burlington case was decided. A few of the very unusual things about the Burlington case were that (1) it was a unanimous U.S. Supreme Court decision and (2) it was an opinion delivered by Justice Rehnquist. As some of the readers of this article might be aware, unanimous Supreme Court opinions do not occur all that often, and Mr. Justice Rehnquist was not known for his sympathies toward protected groups. These two factors make the Burlington opinion all that much more powerful. B. The Opinion The Burlington opinion involved the parents unilateral placement in a facility, in part during the pendency of proceedings under the IDEA. At the end of the case, since the district noted that the parent had only prevailed partially, the school district sought to be paid back for that period of time during which it felt it had "won" part of this six year case. The U.S. Supreme Court said that the "stay put" or "frozen placement" provision did not work two ways. In other words, the IDEA provision is parent oriented. Thus, it applies only where a parent, in an attempt to provide an appropriate educational setting for his or her child, effects a unilateral placement in an appropriate facility. There was a caveat in the case. Where an appropriate education is shown to have been made available by the district at the time the unilateral placement was made by the parent, the parent placement of the child in a non-public location is at parents own expense. This tracks precisely with the provision in the regulations at 34 C.F.R. 300.403(a) which stated at the time the case was decided: If a child with a disability has FAPE 8 available and the parents choose to place the child in a private school or facility, the public agency is not required by this part to7 Burlington School Committee v. Department of Education of Massachusetts, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).8 Free Appropriate Public Education.
  24. 24. pay for the childs education at the private school or facility.II. The Carter Case A. Introduction Once the Burlington case was decided, legal luminaries in the field of parent advocacy were most pleased to advise their clients that this remedy was available, as long as the facility chosen by the parent “met the standards” of the state in which retroactive reimbursement is sought. In Illinois, for example, the state statute provides for the state board to maintain an "approved" list of placements which have met certain state standards. 9 In Indiana, there is no such list and if the proper approvals are obtained in a particular case, any reasonably appropriate facility may be used. States do vary, but advocates did make attempts to steer their clients to "state approved" facilities. B. The Case Facts In 1993, Justice Sandra Day OConnor delivered the Carter opinion. 10 In this case, the pupil in question, Shannon Carter, was classified as learning disabled in ninth grade in 1985 and the schools recommendation was regular education with three resource periods per week. The goal was to get Shannon to progress four months during the entire school year. The parents requested a hearing, and on both administrative levels, the independent hearing officers held (against the parents) that the IEP was adequate. Meanwhile, the parents had placed Shannon privately in a school for disabled LD students, but this school was not "approved" by the state and in fact did not even write Individual Education Plans. Shannon graduated from the school in 1988. In 1986, two years before Shannons graduation, the parents filed suit to challenge the adverse administrative decisions. After a bench trial, the parents won. The court, in the process, appointed an independent expert to evaluate Shannons progress and gave great weight to the findings. It was found that she had made "substantial progress" even though the school did not follow all of the state standards. For example, her reading levels rose three grades per year as opposed to the goals designated in the IEP. The appellate court affirmed that the private school was "appropriate," and that the parents were entitled to retroactive reimbursement. It should be noted in this case that the violations generally were not procedural but substantive in nature. A9 Cite 105 I.L.C.S. 5/14-7.02 (1994).10 Florence County School District Four v. Carter, ___ U.S. ___, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993).
  25. 25. challenge to the substantive basis for the IEP becomes a battle of experts and it is best to use the most highly qualified and reputable experts that a parent can afford. An affiliation with a major center of learning also helps. C. Court’s Holdings The Supreme Court, after reviewing the appellate court and trial records, delivered the following holdings: (1) that the IEP was inappropriate; (2) that the private schools program was reasonably calculated to enable the child to receive educational benefits under the Rowley 11 test; and (3) that retroactive reimbursement to parents when an IEP is found to be inappropriate does not require placement in a state approved program. In somewhat acid tone, Justice Sandra Day OConnor asked why courts should leave the job of "approval" in the hands of the very agency that violated the plaintiffs rights in the first place. This decision was unanimous, as was Burlington, which was heavily quoted in the Carter decision. The case further held that Burlington grants parents a right of "unilateral withdrawal" and placement of their child in a non-approved private facility when a districts IEP is inappropriate. The Court explained that "approval" requirements do not make sense in the context of a parental placement. Note also here that the private school was in fairly severe non-compliance with any state standards. Two faculty members were not state certified, they didnt write IEPs, and the State of South Carolina kept no list of approved private schools but "approved" them on a case by case basis. However, it was pointed out by Justice OConnor that public school officials had previously placed three children at the school. The final holding of the Court is instructive. As support for the proposition that parents need not seek state cooperation in the form of state approval of the parents placement, she noted that "such cooperation is unlikely in cases where the school officials disagree with the need for private placement." Id., 114 S.Ct. at 366.III. Public Law 105-17: The 1997 Revisions to IDEA Limit Carter/Burlington Recovery to Some Degree A. New IDEA Section The new Section 1412(a)(10(C)(iii) mandates that to preserve the parental right to seek retroactive reimbursement under the Burlington and Carter cases, it is necessary that the district be notified at the “most recent IEP meeting” or letter must be submitted to the district, at least ten business days in advance of actually placing11 Board of Education v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982).
  26. 26. the child, of parental intent to place. This means there must be some evidence that the district has actually received the correspondence, and further, the parent theoretically cannot place prior to ten business days having elapsed from date of receipt. The term “business day” includes any regular business day even though that might fall on a school holiday. B. Effects of Amendment The Burlington and Carter cases have thus been limited by IDEA reauthorization. There are certain specific limitations to retroactive reimbursement if parents do not properly comply with their notification duties. For convenience, a sample notification form is attached, “Appendix I.”IV. Preauthorization - “Proportionate Share” A. Decisional Precursor to Reauthorization Fowler v. Unified School District 259, 107 F.3rd 797 (10th Cir. 1997) B. Facts and Holdings of the Courts Parents withdrew their hearing impaired son from a district school and enrolled him in a private school, requesting an ASL interpreter onsite full time for purposes of “increased academic challenge.” The school district declined and the parents requested a hearing. The hearing officer held for the parents, with the state level hearing officer reversing against them. The parents then appealed to the federal district court which held for the parents and this case involved the district’s federal appeal of that adverse trial court ruling. The court held there was an obligation for “equitable” participation in FAPE for “voluntarily enrolled” pupils, as there is a difference between children placed in private schools through an IEP and those placed “unilaterally” at parental discretion (as in this case). The court examined K.R. v. Anderson Community School Corp., 81 F.3d 673 (7th Cir. 1996) and Goodall v. Stafford County School Board, 930 F.2d 363 (4th Cir. 1991). Both of these cases held that if FAPE is made available by the district and the parents choose, at their discretion, to enroll the child at a private facility, there is no obligation on the part of the district to give services onsite. The court also looked at Cefalu (103 F.3d 393, 5th Cir. 1997) and Russman (85 F.3d 1050, 2nd Cir. 1996) and Cefalu’s test as follows: “Is onsite provision of services necessary in order for them to be meaningful?” If the answer is yes, according to Cefalu, the student is entitled to
  27. 27. some, but not more, benefit than he or she would receive if attendance was at the public school. C. Discussion Most significant about this case is the pre-IDEA reauthorization “proportionate share” language. Here, the court stated that district must calculate the average amount spent per pupil (it is unknown whether this is per handicapped pupil or all pupils) in the public school for the service in question, and make an “equivalent” amount of funding available for any student enrolled in a private school. Later, of course, the U.S. Supreme Court vacated the rulings in Anderson, Russman, and Fowler and ordered the appellate courts to reexamine their holdings in light of the reauthorization of IDEA.V. IDEA Reauthorization - Private Schools (20 U.S.C. §1412(a)(10) et. seq.) A. Enrollment by Parents - §1412(a)(10)(A)(i) (“voluntarily” enrolled children) Districts must provide a “proportionate share” of services, in accord with the following: 1. Amounts expended for provision of services by a local education agency shall be equal to a “proportionate amount of federal funds made available under this part.” 2. Such services may be provided to children with disabilities on the premises of private, including parochial, schools to the extent “consistent with law.” B. Children Placed in, or Referred to, Private Schools by Public Agencies -- §1412(a)(10)(B)(i) (i) In general - schools must provide FAPE in private facilities if that was the purpose of making the referral in the first place. (ii) Standards: ► facility and services must meet the LEA standards ► children have the same rights as if directly served by the local education agency. C. Payment for Education of Children Enrolled in Private Schools Without Consent of or Referral by the Public Agency -- §1412(a)(10)(C)
  28. 28. 1. (i) In general - there is no requirement for the LEA to pay if it was making FAPE available and the parents elect to enroll the child in a private facility anyway. This is no change from Rowley, Burlington, and Carter. 2. (ii) A district may be liable for retroactive reimbursement if it is found by a court or hearing officer not to have offered FAPE in a timely manner prior to parental enrollment in a private facility. ► This section seems to be limited to children who have previously received special education and related services through a public agency. 3. (iii) Limitation on reimbursement - reimbursement may be reduced or denied (i) if ► (aa) at the most recent IEP meeting the parents did not inform the LEA that they were rejecting its placement, and including a statement of their concerns, as well as their intent to enroll their child in a private school at public expense; or ► (bb) parents fail to notify the LEA in writing ten business days in advance of placement of their concerns, prior to their child’s removal from the public schools. (It should be noted here that “business day” includes any school holidays falling on a business day.) See “Appendix I.”D. Exceptions to Limitations - §1412(a)(10)(C)(iv) The above section, imposing certain duties on parents, does not apply if: ► Parent is illiterate and cannot write in English; ► Compliance with the clause would likely result in physical or serious emotional harm to the child; ► The school prevented the parent from providing the required notice; ► The parents have not received a written notice of their own obligation to provide notice under this section. Further limitations or denials pursuant to §1412(a)(10)(C)(iii)(II) can occur,
  29. 29. ► If, prior to parent removal from the public school, the LEA informs the parents of its intent to evaluate the child and the parents refuse to make the child available for such evaluation, or► (iii) upon a judicial finding of “unreasonableness” with respect to the parents.
  30. 30. APPENDIX I UNILATERAL PLACEMENT FORM LETTER (To be Sent to School Superintendent at Least 10 Business Days in Advance of Placement) Date: __________________ Re: (Name and Age of Student): Written Notice of Intent to Place Disabled Child in Nonpublic Facility and Seek Reimbursement from School District Pursuant to Public Law 105-17 at 20 U.S.C. 1412(a)(10)(C)(iii)(I)(bb)Dear Superintendent: Please treat this correspondence as your formal written notification pursuant to the above captioned section ofPublic Law 105-17. We intend to place our above named child at the __________________ School [address, phone]on ___________, 19____. We will seek reimbursement of costs for that nonpublic facility from your district. As you are aware, Section 1412(a)(10)(C) states as follows: (C) PAYMENT FOR EDUCATION OF CHILDREN ENROLLED IN PRIVATE SCHOOL WITHOUT CONSENT OF OR REFERRAL BY THE PUBLIC AGENCY. (...) (iii) LIMITATION ON REIMBURSEMENT. The cost of reimbursement described in clause (ii) may be reduced or denied -- (I) if -- (aa) At the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (bb) Ten business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in division (aa); ... Please treat this correspondence as your formal 1412(a)(10) notice as required by that section. Sincerely, __________________________________ Parent(s)
  31. 31. NON-CUSTODIAL PARENTS: LEGAL ISSUES Who Has TheAuthority To Do What? Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX Website: www.whittedclearylaw.com
  32. 32. NON-CUSTODIAL PARENTS By Brooke R. WhittedI. Definitions What is custody? What is guardianship? What legal relationship does a stepparent haveto a child who lives in the home? What is joint custody? All of these questions are asked on aregular basis by education professionals. The context varies: sometimes a residency question isinvolved. At other times, educators are attempting to unsnarl a complicated thicket ofrelationships just to figure out who has the authority to sign a form to release information or initiateservices. The purpose of this memorandum is to inform the reader with respect to the latterquandary, using relevant statutory definitions as well as providing a tool with which to analyzewhether an individual asserting 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. 12 A"representative" is defined in the same act as a standby guardian, temporary guardian, and aguardian. 13 These terms are defined by the Probate Act, 14 as well as a comparatively newaddition known as "short-term guardian," 15 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 comprehensive definitions: (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 minor 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; and12 755 ILCS 5/1-2.08.13 755 ILCS 5/1-2.15.14 755 ILCS 5/1-2-23, et al.15 755 ILCS 5/1-2.24.
  33. 33. (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. 16 (All emphasis is added) It also tends to be confusing to most people when conflicting statutory definitions areencountered. For example, the term "minor" is defined above in the Juvenile Court Act as anyoneunder 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 a 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. 17 To add to the confusion, the Parental Responsibility Act defines "minor" as a personbetween the ages of 11 and 19! 18 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". 19 (Emphasis added) The School Code, however, defines "parent" as "a parent or legal guardian of an enrolledstudent of an attendance center [for cities over 500,000]." 20 However, for homeless children the16 705 ILCS 405/1-317 225 ILCS 10/2.01.18 740 ILCS 115/2(2)19 740 ILCS 115/2(1)20 105 ILCS 5/34-1.1
  34. 34. School Code defines "parent" as "the parent or guardian having legal or physical custody of achild." (emphasis added) 21 It is well established that in most circumstances for school purposes, there must be a courtorder or an actual, legal, or documented connection between the "parent" and the "child." Astepparent, for example, who shows up at a staffing and asserts that he or she has authority overthe child must be questioned. Unless there has been an adoption, court-ordered guardianship, orother document that gives the stepparent legal authority, there is no authority. Likewise, in thecase of a non-custodial parent who appears at a staffing or in the administrators office andasserts authority over the child. At the very least, a non-custodial parent should sign a documentcertifying that he or she has the authority so claimed.II. Introduction to the Problem The issue of what rights a so-called "non-custodial" parent has is cropping up withincreasing frequency. For example, in the case of Navin vs. Park Ridge School District #64,22 thenon-custodial parent, who under the divorce decree only had a right to information and notconcerning any educational decision making, requested a due process hearing demanding moreservices. The hearing officer dismissed the request on the basis that the father, as the requestingparty, was the non-custodial parent and had no right to request a due process hearing. TheDistrict (trial) Court agreed and affirmed the decision of the hearing officer, but the FederalAppellate Court disagreed and remanded the case to the District Court for further proceedings. Inthis somewhat aberrant opinion, U.S. District Judge Conlon outlines the facts of the case,including the Appellate Courts order (to her) to readjudicate the case. She then concluded thatshe couldnt do anything until a hearing officer had actually made a determination of the non-custodial parents claims of certain procedural violations. Therefore, the District Court judge whohad the case remanded to her again remanded the case down to the hearing officer. The hearingofficer was compelled to actually hold a hearing to examine the non-custodial fathers complaintsand from which, if he is aggrieved, he would then have 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 must considerprocedural claims made by non-custodial parents even though the decree does not give them anyright to determine educational programming. Our opinion is that this decision createsmeaningless work in a very narrow area of non-custodial parent rights, however, now that theopinion 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 and21 105 ILCS 45/1-522 36 IDELR 235
  35. 35. 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 he or she requests such in writing. 23 However, for school records, which are governed by the Family Educational Rights and Privacy Act (FERPA) 24 , 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 25 . Different rules apply to the release of mental health information and these are very specific. The attached form contains a second23 Dymek v. Nyquist, 128 Ill.App.3d 859, 469 N.E.2d 65924 FERPA, 20 U.S.C. § 1232g; 34 CFR Par 9925 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 or temporary school records fall under the Family Educational Rights and Privacy Act (“FERPA”) regulations, and are generally exempted from HIPAA regulations.
  36. 36. 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 law generallyrequires that the custodial parent authorize services. Cases have shown that when the non-custodial parent attempts to initiate services, the courts have invalidated the authorization. Thus,educators should take some steps to verify the authority of the custodial parent who seeks toauthorize initiation, change, or cessation of services. Quite possibly, the attached Certification ofAuthority would be sufficient if there is any doubt. However, in cases with serious potentialconsequences, there is no equal to actually checking the court file.C. Incarcerated Parents When the parent or guardian has been incarcerated, other issues may need to beconsidered. Depending on the offense, it is possible that the rights of the parent may have beenterminated. If such is the case, then there might be a private guardian appointed or, alternatively,the child may be a ward of the state. If the child is a ward of the state, the state guardian (DCFSusually, in Illinois) controls decision-making. If there is a private guardian, you can usually ask forthe "letters of office" which should contain all of the guardians duties, authority, andresponsibilities. It is also possible that an incarcerated parent may have retained parental rights, in whichcase it would be necessary to correspond with the parent, even though incarcerated, for thepurpose of obtaining consents. Likewise, an incarcerated parent continues have the legalauthority to consent to information disclosure unless parental rights have been fully terminated.
  37. 37. 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
  38. 38. 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 Educational Rights andPrivacy Act of 1974 , the Illinois Student Records Act, and all regulations issued pursuant to such Acts andthe rules of the Illinois State Board of Education. This document is an overview of the required contents ofa school student records policy and compliance with the requirements stated herein may not satisfy allapplicable laws. Therefore, it is advised that a school district consult an attorney before adopting a givenstudent records policy.I. NOTIFICATION Upon initial enrollment or transfer of a student to the school, the school shall notify the student andthe students parents of their rights under the Illinois School Student Records Act, the Regulations theretoand the policies stated herein.II. OFFICIAL STUDENT RECORDS CUSTODIAN Each school shall designate an official records custodian who is responsible for the maintenance,care and security of all school student records, whether or not such student records are in his personalcustody or control. The official records custodian shall take all reasonable measures to prevent unauthorized access to ordissemination 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 to informationwhich is of clear relevance to the education of the student. Information added to a school student recordshall include the name, signature and position of the person who has added such information and date of itsentry into the record. B. Each school shall maintain student permanent records and the information contained thereinfor not less than 60 years after the student has transferred, graduated or otherwise permanently withdrawnfrom school. C. No school shall maintain any student temporary record or the information contained thereinbeyond its period of usefulness to the student and the school, and in no case longer than 5 years after thestudent has transferred, graduated or otherwise permanently withdrawn from the school. Notwithstandingthe foregoing, a school may maintain indefinitely anonymous information from student temporary recordsfor authorized research, statistical reporting or planning purposes, provided that no student or parent can beindividually identified from the information maintained. D. The principal of each school or the person with like responsibilities or his or her designateshall periodically review each student temporary record for verification of entries and elimination orcorrection of all inaccurate, misleading, unnecessary or irrelevant information. Student records shall be
  39. 39. 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; (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;
  40. 40. (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 the parent receivesprior written notice of the nature and substance of the information proposed to be released, and anopportunity to inspect and copy such records in accordance with 105 ILCS 10/5 and to challenge theircontents in accordance with 105 ILCS 10/7. B. A record of any release of information pursuant to this Section must be made and kept as apart of the school student record and subject to the access granted herein. A record of any release of information must be made and kept as a part of the school studentrecord and subject to the access granted by 105 ILCS 101/5. Such record of release shall be maintained forthe life of the school student records and shall be available only to the parent and the official recordscustodian. 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;

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