PUBLIC COMMENT SPECIAL EDUCATION SUBPART A GENERAL SECTION 226.10 to 226.75 Requirements for a Free Appropriate Public Education (FAPE) Comment: 226.50 (a)(1) requires districts to develop and implement procedures for creating public awareness of special education and related services to ensure that the information is available in each of the major languages represented in the local school district. Commenters suggested that ISBE be responsible for preparing materials in languages other than English for school districts. Analysis: Each district is responsible for developing its own public awareness activities which are developed specific to the district‟s process and procedures such as local screenings, etc. It would be difficult for the State Board to develop materials in various languages specific to each districts‟ needs or procedures. Comment: 226.50 (d) states that special education services and placement for a particular child be identified based upon the child‟s unique needs and not the child‟s disability. The commenter suggested including the term “category” at the end of the statement “…placement not made on the child‟s disability category Analysis: The suggestion clarifies the rule for the reader. Comment: 226.50 (f) provides that the local school district ensure that no delay occurs in implementing a child‟s IEP, including any case in which the source of payment or provision of services to the child is being determined. The commenter wrote that lack of qualified personnel may be one of many justifiable reasons for a delay in providing services and requested changing the language to read that the local district will make every attempt to avoid a delay in implementing a child‟s IEP. 2 Analysis: 34 CFR 300.301 requires that each State ensure that no delay in implementing a child‟s IEP including any case in which the payment source for providing or paying for special education and related services is not yet determined. Therefore, we cannot change this since it is a federal requirement. Comment: 226.50 (g)(2) provides a definition of “suspended or expelled from school.” Commenters requested clarification for the term “suspended” since the language “suspended from school” has the same meaning as “expelled from school” in the rule. Some commenters suggested adding language from the federal regulations that will further explain when services should be provided during a suspension or expulsion. Analysis: 226.50 (g)(2) provides language that was in the “proposed federal regulations” and which was subsequently deleted in the “final federal regulations.” We agree that the language should be changed to reflect the language in the federal regulations. The intent of this section was not to provide a definition of these two terms. Additional Changes Found From the Above Comment – 226.50 (g)(2): 226.50 (g)(1) states that “eligible children who have been suspended or expelled from school must continue to receive special education services.” This is in conflict with 34 CFR 300.121, which states that a public agency need not provide services for a removal of 10 school days or less in that school year provided that services are not provided to a child without disabilities who has been similarly removed. In addition, the language at 34 CFR 300.121 does state that the local education agency must provide services to a child who has been removed from the current placement for more than 10 school days in a school year. 226.50 (g)(3) provides language that was in the proposed federal regulation and was deleted in the final regulation. However, the concept of providing services beyond 10 school days in a school year remains at 34 CFR 300.121 and is being addressed in the above 226.50 (g)(1) section. The language needs to be changed to reflect the federal language at 34 CFR 300.121 (d). Comment: 226.50 (h) provides information regarding district requirements for students with disabilities who transfer into the district. Some commenters suggested adding language to this section which would “establish residency within the school district” prior to implementing an IEP on a transfer student. 3 Analysis: Section 10/8.1 of the School Code states that “No school may refuse to admit or enroll a student because of that student‟s failure to present his student permanent or temporary record from a school previously attended.” Students with disabilities who transfer into a school district are to be treated no differently than students without disabilities. We agree that language is needed to clarify the establishment of residency prior to providing services. Comment: 226.50 (h)(1) requires that when a transfer student is presented for enrollment, the district shall “enroll and initiate educational services to the student immediately.” A commenter stated that this requirement is unrealistic; even when the IEP is appropriate, immediate services may not be feasible. Another commenter suggested changing “immediately” to “within one week” or “within a reasonable amount of time.” Still, other commenters wrote of their support of this regulation. Analysis: No district has a legal basis to deny a student enrollment and initiation of “immediate” services. The Statute does not allow this to occur in regular education and it would be discriminatory practice to delay services for students with disabilities. The rules allow for unique circumstances that, when either the parent(s) or the district believe that the IEP is inappropriate, the district may convene an IEP meeting to develop a new IEP. Also, if the district does not have available a placement required by the IEP developed by the former district, there may be a delay in providing that particular placement. However, the district must provide the services and placement that are most like the ones required by the IEP until data can be collected and a new IEP can be developed. The district would convene an IEP meeting to determine the interim services to be provided until the IEP can be fully implemented. Comment: 226.50 (h)(1)(A)(ii &iii) allows districts to adopt an IEP, without holding an IEP meeting, when receiving a transfer student with an IEP if “(ii) the parents indicate satisfaction with the current IEP; and (iii) the new district determines that the current IEP is appropriate and can be implemented as written.” The commenter suggested deleting (ii) and adding “and/or parents” to (iii). Analysis: Revising the regulation to include “the new district and/or parents” indicates that either the district or the parents can make the determination. In order to adopt the IEP, both the parents and the district must agree that it is appropriate for the student. 4 Comment: 226.50 (h)(1)(B) allows districts to develop a new IEP for a transfer student if the school district or the parents do not believe the current IEP is appropriate. In addition, the rule requires the district to implement the IEP from the former district until a new IEP is developed. The commenters wrote that this regulation placed more importance on the “immediate” placement as opposed to the “appropriateness” of the placement. The commenters provided no language to address this issue. Analysis: The proposed regulation is taken from 34 CFR 300 Appendix A, Question 17. An eligible child is always entitled to receive FAPE. FAPE, in this case, is represented in the form of the services and placement stated in the sending district‟s IEP. There is no provision that allows a district to deny services to a student while waiting to establish a program. Comment: 226.50 (h)(2) – Addresses placing a transfer student in the regular education setting until a copy of the IEP developed by the sending district is obtained or a new IEP is developed. In addition, if a district does not receive a transfer student‟s IEP within “one week” after the student‟s enrollment, a meeting will be convened and a new IEP will be developed. One commenter wrote that to “temporarily” house a transfer student in the regular education setting would be inappropriate and would not be in the best interest of the student. Other commenters want the terminology “one week” to be replaced by “a reasonable period of time.” Another commenter suggested adding language that the district shall initiate a referral of a student when the district does not receive the student‟s IEP and other records that are reported to exist within one week after the student‟s enrollment. Still others wrote that it is the former district‟s responsibility to send the information in a timely manner and the receiving district and student should not be penalized if the information is not received. One commenter wrote that the receiving districts are not always made aware that the student has an IEP from another district. Analysis: Section 10/8.1 of the School Code provides that no school may refuse to admit or enroll a student because of that student‟s failure to present his student permanent or temporary record from a school previously attended. If there is no documentation provided by the parent and the receiving district is unable to obtain verbal verification from the previous district, the student is entitled to receive services in the least restrictive environment (regular education) until the district has information to the contrary. 5 Since the terminology of “reasonable period of time” will vary from district to district, we feel that it is appropriate to provide specific timelines. We agree that the language of “one week” needs to be changed to reflect what is in the School Code requiring 10 days. Section 10/8.1 (b) in the School Code provides that when a student applies for admission to a school and does not present his school record, such school may notify the school district last attended requesting the records; such request shall be honored within 10 days after it is received. Comment: 226.50 (i) provides that each school district is responsible for ensuring that no eligible child is denied FAPE due to jurisdictional disputes among Illinois agencies. The commenters suggested inserting a statement that the “placing” State is the responsible party for ensuring that the child‟s IEP is developed and implemented as well as ensuring that the child has FAPE available. The rationale was because it would alleviate the question of who is responsible for the tuition costs. Another commenter suggested adding language that reads “Each school district is responsible for ensuring that no eligible child residing within their district….is denied FAPE….” One commenter stated that this regulation exceeds IDEA. Analysis: 34 CFR 300.600 describes the SEA‟s responsibility for educational programs for disabled children administered within the State. Accordingly, 20 USCA 1412 (11) describes state eligibility and contingent responsibilities. This means the placing state is responsible for services. Therefore, the comment is covered by federal law and not needed in rules. Comment: 226.50 (k) exceeds federal language by requiring a one year advanced notification to parents that special education services will terminate upon graduation. Several commenters recommended the language in IDEA that requires a “reasonable notice” be used for parents. Some commenters suggested deleting the language that states, “at least one year.” One commenter wrote that current practice in Illinois of requiring one-year notification is working and should be left alone. Analysis: The commenter who wrote that this is current practice and has been working is accurate. These rules are clarifying this current practice. While IDEA requires “reasonable notice”, this agency has the responsibility to further clarify the term. The required Notice and Consent Forms have required a one-year parental notification since at least 1991. This timeline allows parents the opportunity to revise the IEP, request an evaluation, or request a due process hearing to challenge the determination prior to the district terminating services. 6 If parents and students are provided notice of the impending graduation by the one-year timeframe, it provides sufficient time to review current data and determine the nature and scope of any IEP services that are necessary prior to graduation in order to prepare the student for transition. If parents believe the child should not graduate, it affords them the time to pursue avenues available to contest the graduation in order to avoid a disruption in services to the student. The federal rules give explicit and implicit flexibility to the State in detailing how a requirement is to be met. State rules address specific federal requirements in term of what must be done but reflect the flexibility on how the requirement is carried out. In this case we are taking a broad term “reasonable notice” and establishing specific parameters as allowed by the federal regulations. In the absence of a state definition of the term “reasonable notice” for parents and district staff, districts would establish a variety of different procedures. This makes it difficult to determine exactly when notice is to be provided. Establishing a specific timeline assists districts and parents in knowing the requirements. The language directs States to clarify terms such as “reasonable notice” for local practice application. We have done this throughout the proposed regulation when the federal rules have such ambiguous language for timelines. Comment: 226.50 (k)(1) provides that an eligible student who requires continued public school educational experience to facilitate his or her integration into society shall be eligible for such services until age 21. A few commenters wrote that this section contradicts Section 226.50 (k)(3) that states, “The provision of FAPE is not required with respect to a student with a disability who has graduated with a regular high school diploma or its equivalent.” One commenter further wrote that this places all the responsibility on the school district for the myriad of support services necessary for successful integration of a student into society, such as those provided by DORS, DMH, DCFS, etc. Analysis: Each of the items under this section refers to whether or not a student continues to receive special education services or graduates from school with a high school diploma. The regulations clearly show that students who graduate are terminated from service and those who do not graduate may still be served. We are unclear as to the meaning of the comments and are unable to provide a suggestion for clarification. Comment: 226.50 (k)(2) provides that students who reach age twenty-one during a school year shall be allowed to complete that year. The commenter felt that the language is too broad in requiring a district to continue educating a student who should otherwise have completed a program or graduated. 7 Analysis: The intent of the language is that any student who reaches the age of twenty-one shall be allowed to complete the current school year, not forced to complete the year. The language in the rule allows graduation to occur in accordance with the IEP. Comment: 226.50 (k)(4) states that a student with a disability who has satisfactorily completed a secondary program shall be granted a regular high school diploma and, at least one year prior to the anticipated graduation, the parent and student will receive written notification. Commenters requested clarification of what constitutes “written notification” when providing notice to parents that the student has completed a secondary program and shall be granted a high school diploma, thus ending eligibility for special education services. Analysis: We believe that the commenters were unclear regarding the mandatory use of the State “Notice and Consent Forms.” Districts are required to use the “Notice and Consent Forms” and that is the means by which notification is provided. Charter Schools Comment: 226.60 pertains to charter schools functioning as either “schools within school districts or as local educational agencies in their own right.” The commenter suggested moving this section to the definitions in section 226.75. One commenter wrote in support of this regulation. Analysis: 226.60 does not define charter schools. Rather, it specifies when charter schools are considered to be schools or LEAs, as required by Section 5/27A-8, and 5/27A-9 in the Illinois School Code. Definitions Comment: 226.75 provides explanations of the different disability categories. Commenters requested an introductory statement, “For the purposes of this part, the term „disability‟ is understood to mean an „educational disability‟ in contrast to „medical disability‟. In order for a child to be considered disabled under this part, he/she must have one or more disabilities (as defined below) which are determined to 8 have a significant adverse affect on his/her educational progress. A disability which may require medical intervention but does not significantly adversely affect a child‟s educational progress, would not be considered a disability for educational purposes.” Analysis: The commenters raise an issue that is occasionally confusing to some and the suggested solution would help to clarify the situation. We agree that clarification is needed. Comment: 226.75 defines disability category terms and other terminology. Several commenters requested that all disability category definitions and the definition of IEP be verbatim from the federal language. A few commenters suggested including a statement explaining that the impairment must “adversely affect” the child‟s educational performance. One commenter suggested the section be alphabetized. Another individual suggested adding definitions for “adverse affect, suspension, expulsion, and change in placement.” One commenter suggested adding definitions for “medical service” and “educational service.” Analysis: The definitions in the proposed regulations reflect the federal definitions and were written to read clearer than those in the federal regulations. The terminology “adverse affect” is addressed under the term “eligible” and is not necessary to restate in the definition of each disability category. Comment: 226.75 defines “assessment for instructional purposes”. Commenters suggested deleting this definition as the commenters did not feel it was necessary to define the term since it is not a definition provided in the federal regulations. Another commenter stated that the term and definition exceeds IDEA. Analysis: The term is defined to distinguish between assessments that are normally used and those that are not normally used in the determination of a student‟s eligibility for special education. Parental consent is necessary prior to the administration of an assessment to complete an evaluation for special education eligibility. Parental consent is not required for an assessment for instructional purposes. Comment: 226.75 defines “autism” as, “A developmental disability significantly affecting verbal and nonverbal communication and social interactions, generally evident before age three…..” Commenters expressed concern with this definition and stated that many clinicians use the term, “autistic spectrum disorder” to 9 encompass the range of “autistic-like” syndromes subsumed by this category. The commenters further wrote that Aspergers Disorder is a form of high functioning autism and students with this disorder may not be classified under the category of autism due to the definition. The commenters suggested either changing the term to “autistic spectrum disorder” or including the following language after the term “autism” (“including high functioning autism or Aspergers Disorder). Analysis: The definition of autism is based on section 34 CFR 300.7 of the federal regulations and encompasses the students who would be eligible under the federal regulations. Neither the federal or proposed state definitions exclude students with Aspergers Disorder; those students would be eligible if they met the criteria of the definition. Comment: 226.75 defines “case study evaluation”. Commenters suggested deleting references to this term and using the federal terminology of “full and individual evaluation.” One commenter suggested adding language from our current regulations that the case study evaluation include, “in-depth multi-disciplinary diagnostic procedures.” Analysis: The federal language does refer to “full and individual” evaluation at 34 CFR 300.531, but does not use that term to refer to the evaluation throughout the document. It defines “evaluation” at 34 CFR 300.500, but does not define the term as “full and individual”. The commenter‟s use of full and individual is no more descriptive than the term case study evaluation, which is a term that represents a wide variety of procedures that can be used to evaluate and study the child assisting the team in determining eligibility. We did not feel a need to change the terminology that is already familiar to personnel. Comment: 226.75 regarding definition of terms. The commenter requested a definition of “change of placement” as defined in the federal regulations. Analysis: The term “change of placement” is a self-defining term and is not defined in the federal regulations, therefore we did not define it in the proposed regulations. Comment: 226.75 defines “child review team” as a group that convenes to identify the specific assessments required in order to evaluate a child‟s individual needs; to determine whether the child is eligible pursuant to this Part; and to conduct a Manifestation Determination Review, if needed. One commenter stated that the definition is confusing, because it appears as though a district‟s “student 10 assistance team” is making a referral for an evaluation. Several commenters suggested using either the terminology in our current regulations of “Multidisciplinary Conference (MDC) team” or the reference to just the “IEP team” since they felt it was confusing to change the terminology in the proposed regulations. Analysis: There is no reference in the regulations regarding a student assistance team. The law allows anyone to make a referral for a student to be evaluated. However, the IEP team and other necessary individuals make up the child review team which determines the evaluation data, reviews the data, and determines eligibility for special education. Members of a district‟s student assistance team may or may not be included as participants on the child review team. The suggested language of using only the IEP team is addressed in these comments at Section 226.120. Comment: 226.75 defines “cultural background assessment”. A commenter suggested deleting this definition as it pertains to the current case study evaluation components and does not represent the “domains” as referenced in the federal regulations and the proposed regulations. One commenter wrote that the term exceeds IDEA and should be deleted. Analysis: We agree that the definition can be deleted since similar language pertaining to modes of communication is stated in the proposed regulations at 226.140. Comment: 226.75 provides a definition of “date of referral” as the date on which any party makes a request for a case study evaluation in accordance with the district‟s procedures established pursuant to Section 226.110 of this Part. Commenters wrote that the date of referral needs to be at a minimum the date when the referral is put in writing and signed. Some commenters suggested that the date of referral be the date that parental consent is obtained. Others suggested adding language that would require the referral be made “in writing.” Analysis: The definition of “referral” explains it as formal procedure established by a school district which involves a request for a case study evaluation. This allows school districts to establish procedures for making a “referral”. It is clear from the commenters‟ response that they correctly read the rule as allowing for an unwritten or verbal referral. Section 226.110 (a) in the proposed regulations requires districts to provide any assistance that may be necessary to enable persons making referrals to meet any related requirements established by the 11 district. Illinois already has one of the longest timeframes of any State from the “date of referral” to the eligibility staffing. We see no need to extend this timeframe further. Comment: 226.75 defines the term “day” as, “A calendar day unless otherwise indicated. School day is a day on which students are in attendance for instructional purposes during the regularly established school year.” The commenter suggested adding a reference to “partial school day” as contained in the federal regulations. Analysis: 34 CFR 300.9 defines a school day as any whole or partial day that students receive instruction. Although the School code defines school day at Section 5/29-5 as any portion of the day when a student is required to be in attendance for instructional purposes, adding the clarifying language the commenter suggests would make the definition in the regulations clearer. Comment: 226.75 defines the term “deaf-blindness” as, “Concomitant hearing and visual impairments.” The commenter suggested adding further language that is found in the federal definition and states, “…the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.” Analysis: The definition in the proposed regulations limits eligibility under this category to students who meet the criteria for being both deaf and blind without the use of additional language. School districts are free to add the suggested language to their local eligibility criteria if they feel it is necessary. Comment: 226.75 defines “domain” as “An aspect of a child‟s functioning or performance that must be considered in the course of a case study evaluation. The domains are health….. and motor abilities.” A few commenters wrote that the proposed definition implies that the domains listed must be assessed in any case study evaluation. Also, by listing the domains, one might assume that those listed are the only domains that might be considered by the child review team. One commenter stated that this was an “excellent addition” to the proposed rules. Analysis: We agree with the suggestion that clarifying language is needed. 12 Comment: 226.75 defines “eligible” as “..having any of the disabilities defined in this Section, when the adverse effect of the disability or disabilities is so severe as to require the provision of special education and related services in order for the child to benefit from his or her education.” The commenter believes the language should be expanded to reference “that the student must not only have the disability, but needs special education and related services.” Analysis: The proposed language for the definition of “eligibility” does incorporate all of the concepts the commenter desired to have addressed. Comment: 226.75 – Definition of “emotional/behavioral disturbances” should include the statement from the federal definition, “The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance.” One commenter explained the reason for including the statement of social maladjustment was due to the district‟s excessively high behavioral disorder percentages and racial imbalance. Analysis: By definition, student‟s who are socially maladjusted and do not meet the criteria stipulated in the rule will be automatically excluded. A person who is socially maladjusted would not qualify for this category unless they were determined to also have an emotional disturbance. To incorporate the statement by the commenter is redundant and unnecessary. In addition to the above analysis, we felt that the term in the proposed regulations should reflect the federal terminology of “emotional disturbance.” Comment: 226.75 defines the term “equipment” as, “……All other items necessary for the functioning of a particular facility as a facility for the provision of educational services.” The commenter suggested adding the following language, “…….All other items necessary for the functioning of a particular facility as a facility for the provision of accessible educational services.” Analysis: The federal language does not specify the term “accessible”. Further, the Americans with Disabilities Act sets differing timelines and conditions under which various public and private facilities must be accessible depending on a host of variables. These special education regulations could not begin to delineate that complexity in simple terms. 13 Comment: 226.75 defines “general curriculum” as the “Curriculum adopted and/or used by a local school district or by the schools within a district for nondisabled students; the content of the program, as opposed to the setting in which it is offered.” One commenter requested clarification that the student‟s access to the curriculum does not necessarily require general education placement. Another commenter suggested adding language that states “as opposed to whether the curriculum is offered in the general or special education setting.” Analysis: The definition of “general curriculum” does address the comments by stating that the term is referring to the “content” of the program as opposed to the “setting.” Comment: 226.75 defines “hearing impairment”. The commenter suggested the term “hard of hearing” since this is the term preferred by the deaf community. Analysis: The term mirrors the federal term. Comment: 226.75 defines “IEP” as “A written statement of the special education and related services that are required in order for a child to benefit from his or her education.” The commenter suggested the following language be added, “A written statement authorized by the child‟s parents, school staff and child when appropriate of the special education and related services that are required in order for a child to benefit from and participate in his or her education.” Analysis: 226.200-226.260 delineate in detail the required participants and procedures for developing an IEP. The IEP process does not require additional authorization by the parties so we do not feel it is necessary to add this language. Comment: 226.75 defines “language use pattern” as, “The language use that is most comfortable for an individual in the home or the learning environment.” The commenter suggested replacing “comfortable” with “communication normally used.” Analysis: The term “comfortable” is used to ensure that the district determines the language use from the individual‟s perspective and not merely the language used in the school environment, which may not be the individual‟s most comfortable or natural one. 14 Comment: 226.75 defines “mental impairment” as a condition that manifests itself during the child‟s developmental stage. One commenter requested that the definition for mental impairment state that it also includes students who become mentally impaired as a result of a childhood disease. Other commenters wrote that there are only two criteria listed as being essential for eligibility under the mental impairment and suggested that language from the current regulations be included that requires a markedly delayed academic achievement. Analysis: The language in the rule is essentially the same as the federal regulation. The disability categories in total allow for most educationally related disabling conditions to be identified either specifically by title or by the use of the term “other health impaired”. Also, local districts have the ability to include appropriate standards in their own eligibility criteria for each disabling condition. The definition does not need to specify that a “markedly delayed academic achievement” is required, as that would be an adverse affect which is required to determine eligibility in 34 CFR 300.7 of the federal regulations and is specified in the definition of “eligible” in section 226.75 of the proposed state regulations. Comment: 226.75 defines the term “multiple disabilities” as “Concomitant impairments such as mental retardation and blindness or mental retardation and orthopedic impairment, but not including deaf-blindness.” The commenter suggested adding further language that is found in the federal definition and states, “....the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments.” Analysis: The definition in the proposed regulations limits eligibility under this category to students who meet the criteria for having concomitant impairments without the use of additional language. School districts are free to add the suggested language to their local eligibility criteria if they feel it is necessary. Comment: 226.75 defines “related services” and includes the following statement, “Related services do not include those performed by licensed physicians…registered or licensed practical nursed (except when functioning as school nurses)…” The commenter questioned the language of not including registered or licensed practical nurses as a related services in light of the Garret F decision. One commenter wrote that in view of the U.S. Supreme Court decision in Cedar Rapids, it is clear that schools must provide all types of “prohibited” services of a medical nature which do not require a physician‟s direct attention. 15 Analysis: The language does not need to be changed in light of the Garret F. decision, which followed the Supreme Court holding in Tatro, 458 U.S. 883 (1984), establishing a bright line test, i.e., the services of a physician (other than diagnosis/evaluation) are subject to the medical services exclusion, but those provided by a nurse in the school setting are not. The Garret F. court observed, “Here Garrett‟s services are not provided by a physician, but rather a nurse. Thus, based on Tatro, the services are not medical services, but rather school health services or supportive services, both of which meet the definition of related services which the district must provide” (Garret F., 106 F3d, 822, 825). Comment: 226.75 defines “special education” as, “Instruction and related services specially designed to meet the unique needs of an eligible child and provided in an appropriately tailored location.” The commenter suggested that the phrase “and provided in an appropriately tailored location” be removed but provided no rationale. Analysis: The failure to provide a rationale gives no explanation of the problem this language presents. Comment: 226.75 defines “special school” as, “An educational setting which is established by the local school district exclusively to meet the needs of eligible children.” One commenter suggested that a definition of “eligible” is needed. Another commenter suggested adding language that would include those facilities that are established “privately”. Analysis: A definition of “eligible” is included in section 226.75. These rules only intend to recognize educational settings established by public schools as “special schools” and not those educational settings established by private agencies. Comment: 226.75 defines “specific learning disability” as “A disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations, including such conditions as perceptual disabilities, brain injury….”. One commenter suggested deleting the term “imperfect ability” because it would allow parents with excessive concerns to obtain inappropriate services from a district. The commenter suggested the use of the term “significantly impaired” instead. Another commenter suggested cross-referencing another section in the proposed regulations that outlines the “Criteria for Determining the Existence of a Specific 16 Learning Disability." Other commenters wrote that the definition under this category is misleading since doing mathematical calculations is not related to the psychological processes involved in “understanding or using language” In addition, the commenters suggested adding the language, “other than through trauma” after “brain injury” since there is a separate category for traumatic brain injury. Analysis: The language in the rule mirrors the federal regulation and our State statute at Section 14-1.03a in the School Code. The term has been part of the definition for the entire time that the term “specific learning disability” has been identified in federal special education law, 1975, and has not appeared to cause undue stress to districts before now. To provide cross-referencing in every case would tremendously expand the regulations. Finally, local districts are free to add phrases like “other than through trauma” to their local eligibility criteria when they feel it necessary for clarity. Comment: 226.75 defines “student records” as “Any writing or other recorded information concerning a student and by which a student may be individually identified, maintained by a school or at its direction, or by an employee of a school, regardless of where the information is stored.” The commenter objects to the use of the term “any writing” and would replace it with “written communications” in order to exclude any personal notes developed and maintained solely for a single employee‟s use from student records. Analysis: The definition, including the use of the term objected to, is from State statute at Section 10/2 in the School Code. The law has always allowed for individual school employees to create and maintain “personal” notes as long as they are not shared with others and as long as they do not otherwise meet the definition of a school record. Comment: 226.75 defines “supplementary aids and services” as aids, services, and other supports that are provided in the context of the regular education program…” One commenter wrote that support personnel should be included under the definition of supplementary aids and services. Another commenter suggested using the federal definition at 34 CFR 300.28. Analysis: The proposed language aligns closely with the federal regulation, conveys the same intent and requirements, and does not specify support personnel. However, the definition itself would include support personnel as “services and other supports” that are provided in the context of the regular education program. 17 Comment: 226.75 defines “traumatic brain injury” as, “An acquired injury to the brain….it results in….one or more of the following areas: cognitive functioning (attention, concentration, intelligence, memory, problem-solving, abstract reasoning, judgment, and information-processing);…” The commenters wrote that intelligence is too broad of a construct to list here and suggested replacing the term with “verbal reasoning and nonverbal reasoning.” (347, 679, 690, 790) Analysis: The language in the rule is the same language that has appeared in State regulations since the condition was identified as an eligibility. We have experienced no problems with this definition being applied at the local level. Local districts are free to add phrases like “verbal reasoning and nonverbal reasoning” to their local eligibility criteria when they feel it necessary for clarity. Comment: 226.75 defines “visual impairment” as “An impairment in vision; partial sight or blindness.” The commenter suggested adding further language from the federal definition that states, “An impairment in vision that even with correction, adversely affects a child‟s educational performance; partial sight or blindness.” Analysis: The definition in the proposed regulations limits eligibility under this category to students who meet the criteria for having an impairment in vision without the use of additional language. School districts are free to add the suggested language to their local eligibility criteria if they feel it is necessary. 18 SUBPART B IDENTIFICATION OF ELIGIBLE CHLDREN SECTION 226.100 to 226.190 Child Find Responsibility Comment: 226.100 (a)(2) refers to child find responsibility and requires ongoing review of each child‟s performance and progress by teachers and other professional personnel. The commenters suggested deleting the section since the commenter felt that it was covered in 226.100 (a). Analysis: The language in 226.100 (a) is an introductory descriptor of the child find requirement for all children “from birth to age 21” whereas the language in 226.100 (a)(2) requires an ongoing review of students‟ educational performance for those who are already enrolled in school. Comment: 226.100 (a)(3) & (a)(3)(B) refers to child find responsibility and requires ongoing coordination with the early intervention programs. One commenter suggested language that school districts be responsible for “communicating at least annually with all private early intervention providers in the district reminding the early intervention private providers to refer any appropriate students at age 2 ½.” Other commenters suggested that coordination should be considered with other sources other than early intervention programs, such as Early Head Start and Head Start programs. The commenter wrote that Head Start programs are mandated to collaborate with Child Find and participate in the State‟s early childhood activities related to identification of children with disabilities. One commenter suggested referencing section 226.260 which enumerates information regarding a child who reaches the age of three. Another commenter wrote that the language requires a district to have a plan ready to implement by a child‟s third birthday if he or she has been referred for an evaluation from an early intervention program. It was stated that the district would find it difficult to implement this requirement if the early intervention program does not refer the child 60 school days prior to the child‟s third birthday. Analysis: Specific annual communication is certainly something that may be a part of a district‟s “child find activities.” However, we chose not to mandate this in the rules. Districts are required to develop and implement procedures for creating public awareness of special education and related services and for advising the public of the rights of children with disabilities as stated in an early section at 226.50 (a). This would include coordinating with a variety of agencies including Early Head Start and Head Start programs. In addition, in a later section of the 19 proposed regulations at Section 226.260, the language does address a district‟s responsibility when a child is referred to the district at least 60 days prior to and with fewer than 60 school days remaining before his or her third birthday. We did identify that the federal regulation was misquoted in this regulation and should be changed. Comment: 226.100 (b) addresses child find responsibilities and states, in part, “When the responsible school district staff member(s) conclude that an individual evaluation of a particular child is warranted ….” The commenter suggested replacing “responsible” with “designated.” The commenter further suggested that this rule belongs in the referral section. Analysis: 226.100 (b) specifies that when, as a result of child find activities, a district concludes that an evaluation is warranted, the requirements for referral and evaluation apply. As written, 226.100 (b) focuses on the responsibility of staff members. The school district is responsible for complying with the requirement and 226.100 (b) should simply state the district‟s responsibility. Referral Comment: 226.110 provides information regarding a “referral” for a case study evaluation. Several commenters requested clarification of what constitutes the “date of referral.” Other commenters suggested adding language to 226.110 (a)(1) which would require all referrals to be signed and dated by the referring party. One commenter wrote that this regulation should include language requiring a timeline for implementation of IEPs for students who transfer to a new district with an existing IEP from the previous school district. The commenter believes that this language should allow the new district to develop its own “interim proposal,” when the district and the parents are unable to reach an agreement on the student‟s placement. It was also suggested that this would be subject to the parents‟ due process rights, including stay-put placement. Another commenter reinforced the inclusion of the referral process in the rules. Analysis: The proposed regulations defines “date of referral” at 226.75 as “The date on which any party makes a request for a case study evaluation in accordance with a district‟s procedures established pursuant to Section 226.110 of this Part.” The definition of “referral” explains it as formal procedure established by a school district which involves a request for a case study evaluation. This allows school districts to establish procedures for making a “referral”. Section 226.110 (a) in the proposed regulations requires districts to provide any assistance that may be necessary to enable persons making referrals to meet any related requirements 20 established by the district. Illinois already has one of the longest timeframes of any State from the “date of referral” to the eligibility staffing. We see no need to extend this timeframe further. Language was added to the definition of “date of referral” to state, “The date on which any party makes a verbal or written request for a case study evaluation.” The proposed regulations at 226.50 (h) (1) requires the district to enroll and initiate educational services “immediately” to a student who transfers to a district with an IEP from a previous district. The regulation also addresses the options the district has for providing services to a student when the IEP placement must be developed and when a copy of the existing IEP is not presented at the time of enrollment. The proposed regulations also incorporate a due process procedural section which is the system available to parents when they disagree with the district‟s placement or implementation of any aspect of these regulations. Comment: 226.110 (a) requires “each school district to develop and make known to all concerned persons procedures by which a case study evaluation may be requested.” The commenter suggested that this rule mandate a statewide process all district must follow rather than allowing each district to develop their own procedures. This is necessary so parents will know the process is the same if they relocate from one district to another anywhere in the state. It is also believed to be needed to ensure “that any person making a referral (especially parents) shall receive direct assistance (on the date the verbal request is made) by a qualified school representative as to how to complete the referral.” The commenter believes this provision is necessary to assist individuals who may have problems due to their own personal limitations. The person making the referral may need assistance in reading and understanding the process, requirements and directions. Analysis: The requirements of 226.110 establish general requirements or parameters upon which school districts must develop local procedures for making a referral for a special education case study evaluation. The commenter‟s request to mandate a specific procedure should not be necessary if the district develops and implements their local procedures based upon the requirements delineated in these rules and establishes a method of making their process known to all staff and parents. Comment: 226.110(a)(5) refers to “parents or persons having primary care and custody of a child.” The commenter suggested that a definition is needed for “persons having primary care and custody of a child.” 21 Analysis: The Illinois School Code addresses custodial issues in Section 405/1-1 and 405/1-17. We did not feel it was necessary to address this issue in the regulations. Comment: 226.110 (b) states that a referral may be made by any concerned person, including…”a child or an employee of the State Board of Education.” The commenter wrote that anyone is able to make a referral, but the district is “singled out” as needing to obtain parental permission to conduct the evaluation. Analysis: Although anyone is able to make a referral, the parent must always provide written consent for the evaluation to be completed. In addition, the school district has always been the agency responsible for obtaining parental consent in order to conduct the evaluation, if the district has determined that an evaluation is needed. Comment: 226.110 (c)(2) addresses the district‟s responsibility in determining whether a referred student requires a case study evaluation. It states that for a district to determine that a referred child requires a case study evaluation, the district may utilize screening data and conduct preliminary procedures, such as observations, assessment for instructional purposes, etc. One commenter suggested adding “reevaluation” in addition to case study evaluation. Other commenters suggested deleting “assessment for instructional purposes” and “conference with the child” as options for determining if an evaluation is necessary. The commenter stated that “the concept of screening or ability to meet with the child without parent consent” is confusing. Another commenter wrote that the proposed language makes it appear as though these can be completed without parental consent. It was suggested that the language include parental consent as a requirement. One commenter wrote that in some cases the evaluation process for a student is not initiated for as many as three to six months in order to complete one of these two pre-evaluation processes and this has resulted in a delay of services to some students. The commenter suggested that the regulation not allow the district to require a student be screened or reviewed by a “building based team” before accepting a referral but rather require the district to accept a “direct referral.” Analysis: The definition of “case study evaluation” includes both an initial evaluation as well as a reevaluation. School district‟s assess students for instructional purposes on a daily basis and such assessments would not constitute a screening process that is in violation of federal or state regulations. Parental consent is not required for school personnel to meet with any student and discuss her/his educational progress. The language does allow completion of these types of preliminary procedures without obtaining parental consent. Preliminary procedures are 22 intended to be those that are generally applicable to all children and do not require prior parental consent. The date of referral is defined as the “date on which any party makes a request for a case study evaluation.” The proposed regulation does not prohibit the district from developing procedures requiring the student to be screened or reviewed by a “building based team” after they have received a referral to determine if a case study evaluation is necessary. Comment: 226.110 (d) requires obtaining parental consent if the district decides to conduct an evaluation and addresses the steps to be taken if the district agrees to conduct the evaluation. One commenter suggested deleting language that parental consent must be obtained. Another commenter suggested adding the language “written parental consent.” One commenter suggested that an additional step be added to address those students referred or who move in to the district during the summer. The commenter indicated that this part of the rule should require the district to complete the special education case study evaluation within 60 days, even if the child was referred for an evaluation during the summer. Analysis: Since “consent” is understood to be “written” and a parent signature is required by the required “Notice and Consent” forms, specifically the form entitled, “Parental Consent for Evaluation,” it would be appropriate to add the language for clarification. In reviewing the comment on days versus school days, we determined that there is an inconsistency in the definition of the terms as used in the School Code, the proposed rules and the federal rules. This conflict must be addressed. Comment: 226.110 (d)(1) states, “If the district decides to conduct an evaluation, ….the case study evaluation and IEP meeting shall be completed within 60 school days after the date of referral…” One commenter wrote that language at Section 14- 8.02 in the School Code requires “eligibility” be determined within the 60 school day timeline for conducting an evaluation and suggested that, once determination of eligibility is made, the district should have 30 additional days to convene and develop an IEP meeting since the federal regulations at 34 CFR 300.343 discusses a 30-day timeline. The suggestion was to delete the reference to “and IEP meeting.” Other commenters suggested allowing the 60 school day timeline for evaluation to begin after “the parental consent form is signed” or “written parental consent” is obtained instead of after the “date of referral”. One commenter stated that in the federal regulations, Attachment 1 – Analysis of Comments and Changes, the term parental consent is used as opposed to referral. 23 Analysis: Section 5/14-8.02 (b) of the School Code states that determination of eligibility shall be made within 60 school days from the “date of referral” for evaluation by school district authorities or date of application for admittance by the parent or guardian of the child. The language in the proposed regulations is in conformance with the requirements in the Statute. The administration of this rule has consistently been to include a timeframe from referral to development of the IEP which must be completed within 60 school days. The 30-day timeline is the maximum allowable time between determination of eligibility and determination of placement and must fall within the 60 school day timeline. The rule as written clarifies this long-standing requirement. Comment: 226.110 (d)(2) states that “The IEP meeting shall be conducted within 30 school days after the child is determined eligible. The overall limit of 60 school days specified in subsection (d)(1) of this Section still applies.” A few commenters suggested changing the language from “30 school days” to “30 days” as reflected in the federal regulations at 34 CFR 300.343. In addition, several commenters suggested deleting the second sentence to reflect the changes that were requested in 226.110(d). Analysis: We agree to change the language from 30 school days to 30 days to reflect the federal regulations. The second sentence will not be deleted due to the explanation provided in 226.110 (d). Comment: 226.110 (d)(3) explains that when a child is referred for an evaluation with fewer than 60 days of pupil attendance left in the school year, the eligibility determination shall be made prior to the beginning of the next school year. Commenters stated that it is unreasonable to require districts to evaluate and determine eligibility prior to the beginning of the school year. One commenter suggested changing “60 days of pupil attendance” to “60 school days”. One commenter suggested adding language that would require services to begin upon completion of the IEP even during the summer. Another commenter was concerned that a district would be obligated to complete an evaluation prior to the beginning of the school year, if a student was referred two days before a new school year begins. One commenter wrote in support of this regulation. Analysis: The rule language is taken directly from the School Code at 5/14-8.02 and requires a determination of eligibility prior to the first day of the following school year when a child has been referred with fewer than 60 days of pupil attendance left. Districts are required to employ any necessary staff to conduct evaluations over the summer in order to have services available with no undue delay. In the 24 case of a student who has been referred two days before the beginning of the school year, the district would have sixty school days from the date of referral in which to complete the evaluation. This is not a change from the requirements that have been in statute and regulations for years. Comment: 226.110 (f) address the requirements the district must follow when it decides that an evaluation will not be conducted for a referred student. Commenters suggested that the language be altered to establish a timeline that the district must meet to notify the parents that the request will be denied. Analysis: The current language requires the district to provide the parent with written notice of its decision to deny the referral for a case study evaluation. A delay in responding to the referral could result in a denial of FAPE to the student. Therefore, the district must respond in a timely fashion. Failure to do so is subject to a complaint investigation or due process hearing. No change is needed. Child Review Team – Composition and Responsibilities Comment: 226.120 provides the composition and responsibility of the child review team. Several commenters requested this section be “rethought” and references to the “child review team” be deleted since the two-step process of determining eligibility and developing an IEP, in their opinion, far exceeds the federal regulations. Another commenter wrote that the duty of the child review team to identify specific assessments in order to evaluate the child‟s needs should continue to be the responsibility of the school psychologist. One commenter suggested that a psychological evaluation by a certified school psychologist be required for students who have a suspected disability in most of the disability categories and a speech and language evaluation for those students suspected of autism. Still another commenter wrote that the language should ensure the team is multlidisciplinary by specifying related service personnel be a part of the team. One individual suggested adding a “qualified bilingual specialist” as a required participant. Others wrote that physical problems must be “ruled out” before conducting an evaluation, and suggested that hearing and vision screenings be a requirement prior to an evaluation. One commenter wrote that it is a concern to involve the entire team for a “speech only” student since it may upset the parent if the child has to have assessments such as psychological testing when it is not necessary. Commenters wrote that language should be added which requires the district to provide a means for parents to participate in these meetings by ensuring their 25 ability to communicate using their primary language when it is other than English. This could be in the form of an interpreter, translator, or otherwise. Another commenter expressed concern that this rule indicates that evaluations shall cover all of the domains relevant to the individual child but it fails to identify the types of evaluations or the evaluation requirements specific to each of the domains. This individual expressed concern that the regulations do not identify the types of evaluations which would be appropriate for each of the domains. The commenter also wrote that the case study evaluation should establish minimum level evaluation requirements to be completed for each of the identified domains in order to establish a clear understanding of how the child functions and if there are related factors that should be considered. The commenter believes that this is critical because parents and many educators are not familiar with “domains” and specifically what comprises a domain, let alone what types of evaluations are appropriate to measure the child‟s functioning level in each domain. The use of ambiguous terms which are not clarified in the rules are not in the best interest of the students they were developed to serve. The language the commenter suggested that the rules clarify the term “domains” in order to identify: the types of skills included in each domain; the types of evaluations specific to each domain; the minimal level of evaluation that must be completed for each domain; and the specific type of certified professional required to conduct the types of evaluations appropriate for each domains. The commenter believes this information must be identified in the regulations so it is clear to everyone and the district does not have an unfair advantage over the parents. Otherwise the parents could obtain an independent evaluation and the district would be able to state that the evaluation was not acceptable because evaluation instruments appropriate for a specific domain were not administered and the evaluator did not hold the proper credentials. Other commenters wrote that they strongly support the language in this section. Analysis: The proposed regulations do not exceed the federal regulations. The process to be utilized is the same one as in the federal regulations (34 CFR 300.533, 300.540, etc.). The Illinois proposed regulations use a different term to describe (a) those personnel necessary to complete the evaluation and determine eligibility and (b) the IEP participants required to conduct and develop an IEP. We are trying to reduce confusion by emphasizing that the participants for this function are required, by 34 CFR 300.533 (a) and Attachment 1 – Analysis of Comments and Changes, to include individuals beyond those listed in 34 CFR 300.344 (IEP team). In addition, the commenter mistakenly believes that the current regulations allow for only one evaluator, the school psychologist, to determine the breadth of all of the case study evaluation. Even the current procedure requires that each of the evaluators, a minimum of three individuals, determine the extent of their own 26 assessment procedures when completing the required activities. In contrast, 34 CFR 300.533 and the proposed regulation requires a team of individuals to make the determination regarding which diagnostic procedures need to be completed and by whom for each student. Since the federal regulations state that the decision will be made by a group of individuals, the child review team, we cannot require specific evaluations for all children. The proposed regulations provide language for the required participants for both the child review team meeting and IEP meeting. The Parents‟ Participation Section at 226.530 (b)(4) requires the district to “take whatever action is necessary to facilitate the parent‟s understanding of and participation in the proceedings at a meeting, including arranging for an interpreter for the parents who are deaf or whose native language is other than English.” We agree with the commenter‟s concern regarding the confusion about “domains” and the types of evaluations which are applicable to each domain. However, we have not been able to identify any resolution for including language in these regulations regarding this issue. Comment: 226.120 (a)(1) provides language regarding parents as equal participants on the child review team. One commenter suggested that it is objectionable for parents to be involved in attendance at the first meeting of the child review team as timelines may be adversely affected. The individual also wrote that it would be difficult to determine the specific assessments to be completed during that first meeting. Other commenters noted an inconsistency in the language between 226.120 (a)(1) and 226.210 (a) concerning the parent‟s participation in meetings. Analysis: The federal language at 34 CFR 300.533 and 300.344 requires that parents be a part of the team to determine the need for additional data. In addition, the federal regulations require the child review team determine the need for additional data when making determinations regarding the case study evaluation. The proposed regulation at 226.120 (a) addresses parent participation in the child review team meeting and 226.210 (a)(1) addresses parent participation in IEP meetings and states that parents shall be “entitled to function as equal participants.” Deleting the term “function” will achieve consistency with the federal regulations and within the proposed regulations. Comment: 226.120 (a)(2) requires the attendance of “Any other qualified professionals whose expertise is necessary to interpret the evaluation data and make an informed determination as to whether the child needs special education and related services.” The commenter suggested that the language require 27 attendance of the evaluators at the meetings where the results of the evaluation are discussed. Analysis: The federal regulations do not specifically require the attendance of the evaluators at each meeting. However, as stated in the federal regulations at 34 CFR 300.533 and this section of the proposed regulations, when a meeting is convened to review the evaluation results, the IEP team and other qualified professionals whose expertise is necessary to interpret the evaluation data must be present. Comment: 226.120 (c) refers to the composition and responsibilities of the child review team when determining what additional evaluation data are needed in each relevant domain area. Commenters requested adding the federal language that states, “The group…may conduct its review without a meeting.” Analysis: The federal regulations at 34 CFR 300.533 (b) does state that this review may be done without a meeting. The proposed regulations are silent on this issue. However, the proposed language also does not promote having a review without a meeting. The federal regulations, in Attachment 1 – Analysis of Comments and Changes, stated that a district must ensure that the review of existing data and the determination of any needed additional data must be made by a group, including the parents. In addition, neither the statute nor the federal regulations require a meeting but that a State may require such a meeting. We are not sure how a district would have the participation required from all parties involved without convening a meeting. However, since the proposed regulations are silent regarding the convening of a meeting, the district must document mutual participation and decision-making from all parties, including the parent. Comment: 226.120 (f) requires a school district to request a due process hearing when determining the need for additional data and the district does not wish to conduct an assessment requested by the parent. One commenter suggested that the parent be required to request the hearing as opposed to the district. Other commenters suggested replacing the term “shall” with “may” so that a due process hearing is not automatic. One commenter suggested replacing the term “assessments” with “full and individual evaluation while another suggested replacing the same term with “an assessment to determine eligibility.” Analysis: Although the federal regulations use the term “assessment”, it is not clear whether the term refers to a full case study evaluation or only the need for additional diagnostic information. The use of this term at 226.120 may also be confused with 226.75 which provides a definition of assessment for instructional 28 purposes. Due to the request to address this issue, we identified language from the federal regulations that would clarify notification to parents when determining that no additional data is needed. Evaluation Requirements Comment: 226.130 provides language regarding the evaluation requirements. A commenter suggested the evaluation requirements in this rule include language that would require the district to provide a copy of each evaluation report to the parent 10 business days prior to the child review team meeting. The commenter further suggested that this rule require that the parent provide any evaluation reports they may have obtained privately to the school district following the same time line. The commenter believes this would enable all parties consideration of information which would facilitate and expedite the meeting. Other commenters wrote of their support with these requirements. Analysis: The suggestions made by the commenter are good practice to facilitate and expedite the child review team meeting. However, the 34 CFR 300 does not require the evaluation reports to be disseminated 10 days prior to the meeting and this would be an additional burden on the district. Comment: 226.130 (a)(1) provides language regarding the evaluation requirements specific to the administration of tests and other materials. The commenter suggested adding “linguistic” to the sentence, “Shall be selected and administered so as not to be discriminatory on a racial or cultural basis.” In addition, the commenter suggested adding language regarding the child‟s native language. Analysis: The language in the proposed regulation is taken directly from the federal regulations. The commenter‟s issue is addressed at 226.130 (a)(2). Comment: 226.130 (a)(2) provides language regarding the evaluation requirements specific to the administration of tests and other materials. The proposed regulation reads, “Shall be provided and administered in the child‟s native language or other mode of communication; unless it is clearly not feasible to do so.” The commenter suggested adding the following language, “Shall be provided and administered in the child‟s native language or other mode of communication in an accessible format; unless it is clearly not feasible to do so and with consideration given to environmental factors as they relate to the child‟s disability.” Analysis: 29 This rule language was taken directly from the federal language at 34 CFR 300.532 (a)(1)(ii). The language that the commenter is suggesting is embedded in the language found at 226.150 which addresses nondiscrimination. Comment: 226.130 (a)(4) provides language regarding the evaluation requirements specific to the administration of tests and other materials which shall be used consistent with the instructions provided by their publishers. The commenter suggested adding language that any adaptations of an assessment instrument must be preapproved by the child review team. Analysis: The suggested language exceeds federal language. The existing language addresses this concern by allowing for this process to occur as stated in each subsection of 226.130. Comment: 226.130 (f) states that “Tests shall be selected and administered so as to ensure that, if they are administered to a child with impaired sensory, motor, or communication skills, the results of each test accurately reflect the factors that test purports to measure.” The commenters suggested adding language at the end of the sentence to read, “and not the disability of the child.” Analysis: Adding the suggested language would make the rule internally redundant, as the rule already requires the test to “accurately reflect the factors that test purports to measure.” Comment: 226.130 (g) states that no single procedure shall be used as the sole criterion for determining whether a child is eligible pursuant to this Part or for identifying an appropriate educational program for a child. The commenter believes the language at 226.130 (g) should be revised to state “no single procedure and no single professional shall be used as the sole criterion/evaluator for determining whether a child is eligible pursuant to this Part or for identifying an appropriate educational program for a child.” Analysis: The language revision requested by the commenter goes beyond the requirements of 34 CFR 300.532 and the State statute. Comment: 226.130 (k) requires that each person conducting a portion of the evaluation be qualified in accordance with Section 226.840. The commenter stated that the regulations fail to fully identify appropriately certified/credentialed individuals who may administer the various tests (e.g. – assistive technology evaluation). The 30 types of evaluations that are listed at 226.840 do not match the domain with the test that should be used. Analysis: Section 226.180 (h) requires that individuals conducting independent educational evaluation must meet the credential requirements of 226.840. Additionally, 226.130 (k) has a similar requirement. 226.130 (d)(2) requires that any standardized test must be administered by trained and knowledgeable personnel. These collectively require that any personnel involved in evaluating a child must be qualified to administer the procedure(s) that they are conducting. No standard exits for all types of evaluations that would be available, such as a technology assessment in broad terms. Mode(s) of Communication and Cultural Identification Comment: 226.140 (a) explains that the determination of the child‟s language use pattern and general cultural identification shall be made by determining the language(s) spoken in the child‟s home and the language(s) used most comfortably and frequently by the child. The commenter suggested changing language use pattern to the child‟s language dominance. Analysis: The term that is being suggested is similar to the proposed term of “language use pattern.” Language use pattern is a term that has historically been used in State regulations and is one with which districts are familiar. Comment: 226.140 (b) explains that if a child has a non-English-speaking background, a determination shall be made of his or her proficiency in English. The commenter suggested adding four areas which the commenter feels must be assessed when evaluating the language proficiency of limited English proficient students. Analysis: The regulation requires that the district determine the level of English proficiency. Local districts have the responsibility for establishing the criteria. The regulation includes a reference to the Bilingual regulations for more specificity on assessment procedures and eligibility criteria. Comment: 226.140 (c) provides the language for modes of communication and cultural identification. The commenter suggested adding language to clarify “modes of communication.” 31 Analysis: The language proposed by the commenter seems to provide further clarification and we agree to add the suggested language. Comment: 226.140 (d) The commenters also suggested adding the word “documented” to this section to denote that the district should maintain a record of its determinations and actions. Analysis: Since the same rule already states in the previous line that the information “shall be noted in the child‟s temporary record”, it would be redundant to state the requirement twice in the same sentence. However, the word “documented” could be substituted for the word “noted” for clarity. Case Study to be Nondiscriminatory Comment: 226.150 (a) provides language regarding conducting the case study evaluation to ensure nondiscrimination, specifically evaluating the child by qualified specialists or, when needed, qualified bilingual specialists. The commenter suggested deleting the term “qualified specialist” and using only the term “qualified bilingual specialist.” Analysis: This rule allows for other modes of communication other than spoken word and the qualified specialist could be an individual who is fluent in sign language. To refer only to qualified bilingual specialist would be limiting. Comment: 226.150 (b) provides language regarding the case study evaluation. The language allows that if documented efforts to locate and secure a qualified bilingual specialist are unsuccessful, the district is allowed to use an individual who possesses the professional credentials required under Section 226.840 (qualifications for evaluators) to complete the specific components with assistance from an individual who has demonstrated competencies in the language of the child. The commenter suggested that the language not allow an individual other than a qualified bilingual specialist to perform these functions. In addition, the commenter suggested adding language that would state “if a qualified bilingual specialist were unavailable, no eligibility will be determined until the child acquires a predominantly English language use-pattern.” 32 Analysis: The rule first expects the district to use the qualified bilingual specialist. When one is unavailable and the services cannot be secured, the rule provides a means by which the district can perform these evaluations as an alternative. The issue the commenter is concerned about relative to the district employing someone whom has “demonstrated competencies” is to be addressed at the district level. In circumstances where a qualified specialist is not available, the district needs to have the flexibility to utilize an individual with a “demonstrated level of competencies” to provide assistance. This agency cannot develop regulations that would accommodate all of these circumstances and provide for a timely evaluation of the student. In addition, Federal law prohibits denying special education and relates services to an otherwise eligible child on the basis of the child‟s failure to attain a specific proficiency in the English language. Comment: 226.150 (d) requires that the tests administered “to a child whose primary language is other than English shall be relevant, to the maximum extent possible, to his or her culture.” A few commenters suggested language that if testing is not relevant, other formats or alternate methods should be used for assessing the child. Analysis: This wording of the commenter‟s statement leads us to believe that the evaluator would consider using tests which are not relevant to evaluating the child‟s suspected disability. However, the context of this regulation is meant to guide the evaluator to consider the student‟s native culture and the test‟s relevance to that culture. It is not always possible for an evaluator to determine the relevance of all test items to the student‟s culture or to obtain an assessment instrument that has been developed specific to every culture. This is the reason for the flexibility in this language. Comment: 226.150(e) states, “If the child‟s receptive and/or expressive communication skills are impaired….the district shall utilize test instruments and procedures that do not stress spoken language and one of the following: 1) Visual communication techniques in addition to auditory techniques; and 2) An interpreter to assist the evaluative personnel with language and testing.” The commenter requested changing the language, for clarification purposes, in the following sentence, “…the district shall utilize test instruments and procedures that do not stress spoken language and one of the following:…” In addition, the commenter requested that the proposed regulations be changed to require language proficiency as a minimal requirement for persons acting as translators. 33 Analysis: We agree that the language shall be clarified to say, “at least.”. In addition, the issue of language proficiency should be addressed to the Certification Division. Comment: 226.150 (e)(2) states that if a child‟s receptive and expressive communication skills are impaired, the district shall use test instruments that do not stress the spoken word and an interpreter to assist the evaluation personnel with the language and testing. The commenter suggested incorporating language from 226.150 (c) before employing an interpreter to assist in the evaluation of the child. Analysis: The commenter is correct in assuming that the language stated in other sections of 226.150 apply to 226.150(e) as well. After reviewing the entire section, we propose to slightly amend language and punctuation throughout 226.150 in order to adequately address the comment and provide more clarity. Determination of Eligibility Comment: 226.160 states, “Each school district shall develop written eligibility, entrance, and exit criteria….” The commenter suggested that the term “exit criteria” should be deleted since a student will “exit” when they no longer have a disability which requires special education services. A few commenters suggested deleting this whole section since, according to the commenters, the language was not found in the federal regulations. It was suggested to replace it with language found at 34 CFR 300.534 and 535. Another commenter expressed the need to alter the proposed regulation, which allows each district to develop their own eligibility criteria for each disability category and submit it to this agency as part of their policies and procedures. This individual suggested the regulations establish statewide eligibility criteria for the special education disability categories. The commenter provided a rationale for this recommendation which relates to the transient nature of our society that results in many families moving from one district to another. In one district the child may have been receiving special education services and he/she may be determined not eligible for special education in the new school district, due to the difference in their eligibility criteria. This individual also believes it would be more cost effective for school districts to have statewide criteria because the new district would not need to reevaluate the student in order to verify that he/she meets the new district‟s eligibility criteria. The new district would simply be 34 required to implement the child‟s current IEP or develop one that they believe to be appropriate to the student‟s needs. This would also eliminate confusion, conflict, and potentially due process action between the school district and the parents. Analysis: The terminology, entrance and exit, appears to be redundant with the term “eligibility.” Therefore, we agree to delete the term “exit” criteria. In addition, we will delete “entrance” criteria and simply use the term “eligibility”. The language found in the proposed regulations came directly from the federal regulations at 34 CFR 300.534 and 300.535. The federal language does not require the State to develop statewide eligibility criteria for each of the disability categories. Comment: 226.160 (a)(1) explains that when the child review team is making an eligibility determination, the team shall, “Draw upon information from a variety of sources, including aptitude and achievement tests,…..” The commenter wrote that since the list is not exhaustive, the language should be changed to, “Draw upon information from a variety of sources which may include….and/or other sources which are appropriate to areas of suspected disability.” Analysis: The term “including” is used throughout these regulations to illustrate that the lists which follow the term are not exclusive. Criteria for Determining the Existence of a Specific Learning Disability Comment: 226.170 specifies the criteria for determining the existence of a specific learning disability. The commenters suggest using the language from sections 34 CFR 300.541-300.543 of the federal regulations. Analysis: The language in proposed 226.170 includes all of the requirements of 34 CFR 300.541-300.543 but is written in a sequential manner that delineates the requirements of the district and the child review team. Comment: 226.170 (a) requires a classroom observation of “the child‟s academic performance” for students suspected of having a specific learning disability. The commenter suggested that “academic performance” should be defined. 35 Analysis: The use of the term “academic performance” mirrors section 34 CFR 300.542 of the federal regulations and is a commonly used educational term. Comment: 226.170 (b)(3) provides the criteria for determining the existence of a specific learning disability and states, “The team finds that a child has a severe discrepancy between achievement and intellectual ability in…”. The regulations then list several areas. One commenter requested adding the language from the federal regulations that states, “in one or more of the following areas.” Other commenters suggested deleting the term “severe” from the rule. Analysis: In the list itself the language states, “…..(F) Mathematics calculation; and/or (G) Mathematics reasoning.” This language is the same as the language suggested by the commenter. The term “severe” is in the federal regulation at 34 CFR 300.541 and we feel it is important to maintain this term. Independent Educational Evaluation Comment: 226.180 describes the conditions under which a parent has the right to an independent educational evaluation. The commenter presumes that the listing of evaluator qualifications has been struck from these regulations and that more due process hearings will occur as a result. Analysis: The listing of evaluator qualifications is now identified in the proposed regulations at 226.840. Comment: 226.180 (a) requires the district to provide to parents a list of independent educational evaluators developed by the State Board of Education. The commenter suggested adding language that would require the State Board to update the list at least every three years. Analysis: ISBE continuously updates the list of independent educational evaluators. Internal agency procedures are not the purview of these rules. Rather, the rules are designed to clarify statutory requirements for districts and parents. 36 Comment: 226.180 (d) addresses the 30-day timeframe for completing an independent educational evaluation. One commenter felt that the timeline was insufficient and several commenters stated that the language was not found in the federal regulations and should be deleted. Analysis; The 30-day language was taken from the School Code at 5/14-8.02. In addition, due to reviewing the language in the School Code regarding this issue, we identified timeline language for initiating the hearing that was in conflict with the timeline in our proposed regulation at 226.180 (c). Comment: 226.180 (k) provides that when a parent obtains an independent educational evaluation, the written result of the evaluation will be considered by the child review team. The district shall send notice convening the child review team meeting within “five school days” after receiving the evaluation report. The commenter stated that the timeline was unnecessary and too restrictive. Analysis: The timeline is necessary to provide notice to parents in order to convene a meeting because of the 30-day timeframe to complete the independent educational evaluation. Re-evaluation Comment: 226.190 (a) states, “A local school district shall reevaluate an eligible child whenever conditions warrant a reevaluation…” One commenter requested clarification of the terms, “whenever conditions warrant.” Other commenters requested adding a requirement for parents to be notified when no additional data is needed. One commenter further suggested that parents be notified “in writing” which would avoid unnecessary misunderstandings and disputes between schools and parents. Another commenter wrote that the federal regulation allows a child to continue to be eligible for special education services without a reevaluation if the team does not believe the evaluation is necessary. The commenter further wrote that the proposed regulation requires an evaluation to occur every year and suggested that the language in the proposed regulations reflect the federal language instead. 37 Analysis: Whenever a referral is made for an evaluation, including a reevaluation, the district must decide whether or not to conduct the evaluation as stated in the proposed regulation at 226.110 (c). So the decision is based upon the individual circumstances (whenever conditions warrant) of each case. The language that the commenters requested regarding written notification is already addressed under Section 226.120 (e). The comments regarding the proposed regulations requiring an evaluation every year is incorrect. The proposed language specifically states that, “A local school district shall reevaluate an eligible child whenever conditions warrant….but at least once every three years.” This language is taken directly from the federal regulations at 34 CFR 300.536. Comment: 226.190 (c) states that a reevaluation is not required for a student who graduates from high school with a regular high school diploma or its equivalent or attains the age of 21. The commenter suggested defining “equivalent” and requested clarification of whether or not a GED would qualify under equivalent. Analysis: Section 5/3-15.12 in the School Code specifies the requirements for high school equivalency which would include a high school level Test of General Educational Development (GED). 38 SUBPART C INIDIVIDUALIZED EDUCATIONAL PROGRAM (IEP) SECTION 226.200 to 226.260 General Requirements Comment: 226.200 provides the general requirements for the IEP. The commenter suggested the language be amended to add a requirement that the parents have a right to tape record meetings as long as they provide 24-48 hours notice to the school district prior to the meeting. Analysis: Appendix A Question 21 states that no Federal statute either authorizes or prohibits tape recording or video recording an IEP meeting. Courts across the country have found on both sides of the issue to date. ISBE has always recommended that recording IEP meetings is permissible when both the parent and the district agree. IDEA leaves the determination of regulating recordings to the State Education Agency. Providing a rule as suggested would resolve local conflicts. Comment: 226.200 (a) requires an IEP to be in effect before a district may provide special education and related services to any child in question. The commenter suggested that this requirement is too strenuous and that we should use language which is “congruent” with federal regulations. Another commenter suggested changing “the child in question” to read “any student/child found to need these services.” Analysis: The language mirrors the federal regulation at 34 CFR 300.342 which states that “Each public agency shall ensure that an IEP is in effect before special education and related services are provided to an eligible child. The language “The child in question” is not consistent with the terms used throughout the regulations and should be changed. Comment: 226.200 (c)(1) is the notification to parents of a change in the IEP. The section states, “When an IEP is developed or revised, notice to the parents shall be provided immediately….and implementation of the IEP shall occur no later than ten days after the provision of such notice.” One commenter requested this section be deleted since the ten-day timeline exceeds the federal regulations. Another individual suggested changing the timeline from “no later than ten days 39 after the provision of such notice” to “as soon as possible following the IEP meeting” since the federal language requires the IEP be implemented as soon as possible after the IEP meeting. Analysis: No explanation was given for the commenter‟s desire to delete this section. We are unclear as to why the commenter wants the information deleted and feel that this information is necessary. The proposed language sets forth a timeline no later than then days after the provision of such notice to meet the “as soon as possible” requirement. The “ten day timeline” is consistent with all other notification requirements. Comment: 226.200 (c)(2) states that “The district and teachers make efforts in good faith to assist children in achieving the goals and objectives or benchmarks listed in their IEPs. However, an IEP does not constitute a guarantee by a school district or teachers that a child will progress at a specified rate.” The commenter suggested changing the second sentence to read, “However, it is not required that any agency, teacher or other person be held accountable if a child does not achieve the growth projected in the annual goals and objectives or benchmarks.” Analysis: The intent of the proposed language found at 226.200 (c)(2) and the federal language found at 34 CFR 300.500 (b) are identical. The proposed language at 226.200 (c)(2) clearly indicates that the IEP does not guarantee that the child will achieve the growth projected in the IEP. This appears to be merely an issue of semantics. Comment: 226.200 (e) states that a child‟s teacher or a child‟s parent may request a review of the child‟s IEP at any time and that within ten days after receiving the request, the district shall notify the parent. One commenter suggested deleting this entire subsection since the language is not required by the federal regulations. Another commenter suggested changing the term “school day” to “calendar day” when the parent requests an IEP meeting. Other commenters requested that these regulations require the school district to respond to a parent‟s request for an IEP meeting within 30 calendar days. It was suggested that the district be required to either convene a meeting or provide an explanation of their rationale for refusing to conduct a meeting which includes an explanation of the parents‟ due process rights. Another commenter expressed appreciation for rule 226.200 (e), which requires the district to respond to the parent‟s request for an IEP meting within 10 days of receiving the request from the parent. This enables the parent to know the status of their request and prevents delays. 40 Analysis: The language is provided in the federal regulations at 34 CFR 300 Appendix A Question 20. Therefore the language in the proposed regulations does not exceed federal regulations. The proposed regulations at 226.200 (e) requires the district to respond to a request for an IEP meeting within “10 days” after receiving such a request. The language in the rule does not require notification within ten school days. Rather the language “within ten days” refers to a calendar day as the commenter suggested. If the district refuses to convene an IEP meeting, the written response must provide an explanation for the district‟s decision that a meeting is not needed. It does not require the district to inform the parent‟s of their right to request a due process hearing. The federal regulations require the district to provide the parents notification of their rights at four points: 1) initial referral for evaluation; 2) enclosed with each notification for an IEP meeting; 3) reevaluation and 4) request for due process. The addition of another point at which the district would be required to provide the parents a copy of their rights is not needed. Comment: 226.200 (g) states that “Each district shall have procedures in place for providing to involved staff members the information they need…..” The commenter suggested changing the language as follows, “Each district shall have procedures in place for providing shall provide to involved staff members the information they need...” Analysis: The federal regulations require that each teacher or service provider be informed of his or her specific responsibilities in implementing the IEP. The proposed rule not only requires that the district provide the necessary information to staff, but requires these to be a part of the district procedures. IEP Team Comment: 226.210 provides the composition of the IEP team for an eligible child and states that, “Nothing in this Section shall be construed as requiring the attendance of any member of an IEP team for the entire duration of a meeting.” One commenter requested language that would state which members are required to stay and which ones are not required to stay. Another commenter stated that the language should require the regular education teacher to stay for the entire meeting. Analysis: The intent of the regulation is that all required participants will be present for the entire IEP meeting in order to create the most appropriate IEP for the child. The intent of the sentence the commenter suggested clarifying is to acknowledge that 41 on occasion other responsibilities may impair an individual‟s ability to participate for the entire duration of the meeting. However, we agree that the language could be misinterpreted and should be deleted. Comment: 226.210 (a) provides that the child‟s parents shall be members of the IEP team and shall be entitled to function as “equal participants” in the IEP meeting. Several commenters wrote that “equal participants” exceeds federal regulations. Other commenters provided support in the proposed language reflecting the federal language of parents being equal partners. Analysis: 34 CFR 300 Appendix A Question 5 states that parents of a child with a disability are expected to be equal participants along with school personnel in developing, reviewing, and revising the IEP for their child. In addition, 34 CFR 300 Appendix A Question 9 states that “ parents are considered „equal partners‟ with school personnel in making decisions.” Therefore the language in the proposed regulations does not exceed federal regulations. Comment: 226.210 (b)(1) provides language regarding the regular education teacher as a member of the IEP team. The commenters suggested deleting the language that states, “This should be the teacher who is, or may be, responsible for implementing a portion of the IEP,…” since the commenters feel that it exceeds federal language. One commenter requested specific language for the representative who would fulfill the role of the regular education teacher. Analysis: The language at 226.210 (b)(1) mirrors the federal regulations at 34 CFR 300 Appendix A Question 26 and states that this should be the teacher who is or may be responsible for implementing a portion of the IEP. Comment: 226.210 (b)(1)(A) provides information regarding the IEP team composition and the responsibilities of the regular education teacher. The commenter suggested inserting language in the following statement, “The responsibilities of the regular education teacher shall include assisting in … the determination of appropriate positive behavioral and/or instructional interventions…” Analysis: The proposed regulations mirror the federal language exactly. Comment: 226.210 (b)(2) provides information regarding the IEP team composition and the responsibilities of the regular education teacher. The commenter suggested changing the language in the sentence as follows, “If the child does not have a 42 regular teacher but is anticipated to receive at least some instruction in the regular education setting, the team shall include a regular classroom teacher qualified to teach children of that age.” Another commenter suggested the following language, “If it is possible to identify such a teacher or teachers at the time of the IEP meeting, the participating regular classroom teacher shall be a teacher expected or likely to deliver services to the child.” Analysis: The proposed language at 226.210 (b)(2) is consistent with IDEA97 and 34 CFR 300.540 (a)(2) which provides clarifying language and needed guidance to local school districts. Comment: 226.210 (c) provides information regarding the IEP team composition and the responsibilities of the special education teacher. The commenter suggested deleting language that the person is someone who is or will be responsible for implementing a portion of the child‟s IEP. Analysis: The proposed regulation is provided in the federal regulations at 34 CFR 300 Appendix A Question 26. Comment: 226.210 (d) provides information regarding the IEP team composition and the responsibilities of both the regular and special education teacher. The language states that if a child has more than one of these teachers, the district may designate which teacher(s) will participate in the meeting. It also requires the district to have procedures in place to permit any involved staff member to have input if they are unable to attend the meeting. In addition, it makes a provision to require only one special education and one regular education teacher to attend the IEP meeting when a student has more than one of either type of teacher. One commenter suggested deleting this entire section since the commenter felt this is burdensome. Another commenter requested that the language be revised to require the district to have procedures that would “assure” or “require” input concerning the child‟s needs, goals and objectives to be obtained from any staff involved with the child who will not be in attendance at the meeting. Analysis: The language is provided in the federal regulations at 34 CFR 300 Appendix A Question 26. The proposed language requires each district to have procedures to “permit” any staff member serving the student, who does not participate in the IEP meeting to provide their input for consideration. This language requires districts to have such procedures in place, but does not require the district to “assure” that staff who are not in attendance at the meeting provide input for consideration. Such a provision would be difficult for a district to implement or this agency to monitor. 43 Comment: 226.210 (e)(3) enumerates the requirements for the representative of the local school district at an IEP meeting and requires that the person to be “knowledgeable about the district‟s resources.” The commenter suggested adding language that more accurately reflects the federal language at 34 CFR 300.344 (a)(4)(iii), which states that, the person be knowledgeable about the “availability” of the resources. Analysis: The wording in the proposed regulation includes the meaning intended by the commenter. No explanation for desiring this change was provided. In the context of the entire statute, specifying that the representative is only knowledgeable about those resources that the district has immediately available would not reduce the district‟s liability to expand or reorder its resources to meet the needs of the student who is the subject of the IEP meeting. Comment: 226.210 (e)(4) enumerates the requirements for the representative of the local school district and requires that the person “has the authority to make commitments for the provision of services.” Several commenters suggested deleting this wording since the commenter believes that the federal rules do not specifically state it and our reference, 34 CFR 300 Appendix A, Question 22, is not a part of the federal regulations. One commenter wrote of the concerns about the availability of the LEA representative for speech only students. Other commenters suggested that the language of 226.210 (e)(4) be revised to require that the individual representing the school district have the authority to commit the “resources and ensure that the services set out in the IEP will be implemented.” Analysis: Since Appendix A is a part of the regulations and does cite this language for the person acting as the local district representative, it should be maintained. Both the federal regulations and proposed State regulations require that a representative of the local school district be in attendance at IEP meetings no matter what the eligibility of the student. The suggested wording of the commenter to delete the term “services,” and replace it with “resources” would more directly reflect the language used in the federal regulations. The proposed regulations at 226.50 state that the district must ensure the provision of FAPE by providing special education services according to a child‟s IEP. The addition of the language suggested by the commenter would ensure that there is someone at the IEP meeting who has that responsibility and serves in that capacity for each student. 44 Comment: 226.210 (f) requires that the IEP team include a “qualified bilingual specialist or bilingual teacher if the presence of such a person is needed to assist the other participants in understanding the child‟s language and cultural factors as they relate to the child‟s instructional needs.” One commenter suggested language that would not require the person to be in attendance but rather would allow the person to be in attendance (e.g. changing “shall include” to “may include”.) Another commenter suggested deleting this entire section as they feel it is burdensome. Analysis: Section 5/14-8.02 in the School Code emphasizes the need for “qualified specialists” and “qualified bilingual specialists”. The proposed language has been the practice in Illinois and reflects our current State regulations at 226.560. In addition, the proposed language requires a qualified bilingual specialist or teacher only when there is a need. Comment: 226.210 (g) requires a person knowledgeable about positive behavioral strategies be included as a member of the IEP team, when a child‟s behavior impedes his or her learning or the learning of others. The commenters felt that the language should adopt the federal language, that the LEA is “encouraged” to have a person knowledgeable about positive behavior strategies. One commenter suggested language that would not require the person to be in attendance but rather would allow the person to be in attendance (e.g. changing “shall include” to “may include”.) Another commenter suggested deleting the entire section as they feel it is burdensome. Analysis: This section identifies a number of required participants at all IEP meetings and allows for one of the required participants to also fulfill the role of a person knowledgeable about positive behavior strategies when the child‟s behavior impedes his or her learning or the learning of others. The proposed language reflects the language in 34 CFR 300, Appendix A, Question 26 that “encourages” districts to have this type of participant at the IEP meeting. The proposed regulation requires a person knowledgeable about positive behavioral strategies only when there is a need. Comment: 226.210 (h) requires that the IEP team include an individual who is qualified to interpret the instructional implications of the evaluation results, who may be one of the individuals enumerated in subsections (b) through (g) of this Section in the proposed regulations. One commenter requested adding language that states 45 the person also “determines appropriate positive behavioral and/or instructional interventions and strategies for the child…” Another commenter suggested language that would not require the person to be in attendance but rather would allow the person to be in attendance (e.g. changing “shall include” to “may include”). Analysis: The language that the commenter requested is already addressed in 226.210 (g) which states, “In the case of a child whose behavior impedes his or her learning or the learning of others, the team shall include a person knowledgeable about positive behavior strategies.” 34 CFR 300.344 (a)(5) requires this person be in attendance. Comment: 226.210 (i) requires the school district to invite the student to the IEP meeting when transition services are going to be planned. One commenter desires that the language be revised in order to clarify that the district is obligated to invite any student 14 or older when transition services are to be considered. Another commenter desires that the language be revised in order to clarify that the district is obligated to invite any student 16 or older when transition services are to be considered. However, until the student turns 18 years of age the parents retain the right to override the school district‟s invitation and decide that the student will not attend the IEP meeting. Analysis: The federal regulations do not state that the student is required to attend the IEP meeting when transition services are discussed. The regulations simply require the district to invite the student in this age bracket when transition services are to be considered at the IEP meeting and to inform the parents that the district will invite the student to the meeting. 34 CFR 300, Appendix C, Question 6 also provides direction that requires school districts to “take other steps to ensure that the student‟s preferences and interests are considered” in the transition planning, when the student does not attend the IEP meeting. The language in the federal and the State proposed regulations focus on the district‟s requirements to invite the student and the parent. These regulations are limited to addressing the requirements for the district‟s invitation to parents and the student. It does not include language to require anyone to attend any of the meetings required by these rules. However, there are requirements concerning the district‟s obtaining relevant information from the student in order to develop transition services based upon the student‟s needs and interests. The parent „s rights in their role as a parent are not addressed in these rules since they do not effect the parent‟s legal role in that capacity, except for student‟s who reach the age of majority at which point the legal responsibility does change. 46 Comment: 226.210 (j)(2) requires that the district invite the student to any IEP meeting convened for the purpose of discussing and developing transition services. When the student fails to attend, even after provided adequate notice, the district shall take steps to ensure that the student‟s preferences and interests are considered at the IEP meeting(s) and shall maintain a record of its attempts to secure this information from the student. The commenter suggested that ISBE remove the language “and shall keep a record of these steps” contending that the language is more burdensome than required by federal regulations. Analysis: The language in the proposed Illinois Rules at 226.210 (j)(2) reflects the federal guidance provided in Attachment 1 – Analysis of Comments and Changes received on the proposed IDEA97 regulations. The rule provides needed guidance to local school districts. Comment: 226.210 (j)(3) requires that the district invite the student at the age of majority (18 years of age) to any and all IEP meetings instead of the parent and that the rights of the parents to fully participate as provided in 226.530 be transferred to the student. One commenter suggests that the language “The student‟s absence from the IEP meeting shall be subject to the provisions for parental participation set forth in Section 226.530 of this Part” be stricken. Another commenter suggested revising this section to read, “The district shall invite the student instead of the parent when the student is 18 or older or becomes an emancipated minor. The parent can be invited by either the student or the district.” Analysis: The language in the proposed Illinois Rules at 226.210 (j) 3) is consistent with federal guidance provided in Attachment 1 – Analysis of Comments and Changes received on the proposed IDEA 97 regulations and is necessary to ensure compliance with IDEA 97, specifically 34 CFR 300.345 (d) (conducting an IEP meeting without a parent in attendance) and 34 CFR 300.517 (transfer of parental rights at the age of majority). Districts must, by federal law, invite the student at the age of majority to any and all IEP meetings. Provided the district has complied with the notice requirements, and can demonstrate its attempts to secure the student‟s participation in the IEP meeting, the district must have the flexibility to proceed with conducting a lawful IEP meeting without the student in attendance to ensure the continued provision of FAPE. The rule is consistent with federal regulations and provides needed guidance to local school districts. The suggested revised language is included in the proposed regulations at 226.690 which is referenced in this section of the rule. The commenter caused us to review this rule more closely and it was determined that a conflict existed between it and the proposed regulation at 226.690. 47 Comment: 226.210 (k) states that “at the discretion of the parent (or the student, if applicable) or the district, the IEP team shall include other individuals with knowledge or special expertise regarding the child.” The commenter is suggesting that the language “or the student, if applicable” be stricken. Analysis: While the federal rules at 34 CFR 300.344 (6) do not specifically state “or the student, if applicable” it is understood that the student always should be permitted to be at his or her IEP meeting, and that students who are eighteen years of age and older are always considered members of the IEP team and afforded all the rights previously given the parents. The language being proposed at 226.210 (k) is consistent with IDEA97 as explained in Attachment 1 – Analysis of Comments and Changes to IDEA97 regulations. Factors in Development of the IEP Comment: 226.220 delineated some factors a district needs to consider when developing an IEP and parallels the language found at 34 CFR 300.346. The commenter is suggesting that the phrase “in terms of goals, services, and/or providers‟ responsibilities (see Section 226.230(a) of this Part)” be stricken to avoid confusion. Analysis: The phrase “in terms of goals, services, and/or providers‟ responsibilities (see Section 226.230(a) of this Part)” can be deleted as Section 226.230(a) enumerates all the contents of the IEP. Comment: 226.220 (a) requires the IEP team to consider whether the child requires assistive technology devices and services. The commenter suggested adding language that would include these services be provided in school or nonschool settings in order to receive a FAPE. Analysis: The language that the commenter suggests is found in Section 226.750 which delineates the districts responsibilities. However, a cross-reference in the area that discusses related service would be appropriate since there are several places that reference assistive technology. 48 Comment: 226.220 (e) provides that the team consider the need for a “functional behavior assessment” in the case of a child whose behavior impedes his or her learning or the learning of others and is consistent with the language found at 34 CFR 300.346(2)(I) except that an additional requirement is added which is to consider “the need for a functional behavioral assessment in order to determine whether behavioral intervention strategies are necessary. The commenter suggested that this language be stricken and that the following clarifying language be inserted, “if appropriate, strategies, including positive behavioral interventions, strategies and supports to address the behavior” be added. The commenter is suggesting deleting any reference to the need for a functional behavioral assessment. Analysis: Given the litigious nature of student discipline, and specifically Illinois‟ statutory focus at Section 14-8.05 of the School Code on the development of positive behavioral interventions, we would be remise not to provide this statement of clarification to local school districts challenged with the responsibility of managing student behavior. In order to develop appropriate behavioral intervention strategies, the IEP team should conduct a functional behavioral assessment. 34 CFR 300.520(I) states that if the LEA did not conduct a functional behavioral assessment and implement a behavioral intervention plan for the child before the behavior that resulted in the removal …” “it shall convene an IEP meeting to develop an assessments plan.” This regulation puts the IEP team on notice that they have a responsibility to “consider the need” for conducting a functional behavioral assessment as a part of the student‟s IEP -- not just in reaction to an incident of misconduct. To develop behavioral interventions, strategies, and supports without a thorough understanding of when and why the behavior exists would be inappropriate and ineffective. Content of the IEP Comment: 226.230 lists the various components of the IEP and with minor exceptions, parallels the language found at 34 CFR 300.347. The commenter suggested that the language parallel the federal language exactly in order to avoid confusion. Specifically, the commenter suggests that the phrase found at 226.230 (a)(2)(A) be changed to read “to participate in appropriate activities” deleting the phrase “activities appropriate to the child‟s age.” Analysis: While 34 CFR 300.347 (a)(2)(I) does use the phrase “appropriate activities” this phrase is further defined in Attachment 1 – Analysis of Comments and Changes. The clarifying language found in proposed 226.230 provides clear direction to districts and parents with respect to the content of the IEP. The analysis defines 49 appropriate activities to include “activities that children of that chronological age engage in as part of a formal preschool program or in informal activities…” Therefore, the proposed language “appropriate to the child‟s age” is consistent with federal guidance on this issue and serves to clarify the intent of the federal law. Comment: 226.230 (a)(2) refers to the content of the IEP. A few commenters suggested removing the statement “that reflect consideration of the State Goals for Learning and the Illinois Learning Standards.” One commenter suggested that this section in the rules should deal with the issue of medication and the effects of medication on the student‟s ability to function in the educational setting. Analysis: Since Illinois has specific standards, these are the ones that need to be addressed so that special education students in Illinois can progress in the general curriculum being taught to all other children as required. The issue of medication is not addressed in the federal regulations and requiring it in this section would exceed the federal requirements. Comment: 226.230 (a)(3) addresses a description of how a child‟s progress on goals will be measured and how parents will be informed. However, the second and third sentences refer to a child‟s participation in assessments. The commenters suggested moving the second and third sentences to 226.230 (a)(4) since that is the section that discusses assessments. Analysis: The commenters are correct that the two sentences are misplaced and should be addressed in another section. These comments caused us to further identify the fact that Section 226.230 is not in functional order, therefore requiring 226.230 (a)(4) to be moved to another number in the section. Comment: 226.230 (a)(3)(B) requires that information regarding the child‟s progress toward annual goals be provided to parents. It further states that the information should be provided in addition to, rather that in place of, the information provided to parents of all children regarding subjects and curricular areas. Commenters want the second sentence deleted because it is not contained in the Federal language. Analysis: Information regarding a child‟s progress toward annual goals being provided to parents is required in the Federal language. The Federal language explains that parents will be regularly informed (through such means as periodic report cards) 50 as often as parents of nondisabled children. The proposed language is a clarification that reporting on the goals is in addition to the report card that reports on grades in curricular and subject areas. Comment: 226.230 (a)(5) requires that the IEP include a statement as to the language(s) or mode(s) of communication in which special education and related services will be provided, if other than or in addition to English. The commenters suggested that this requirement be removed from the regulations. Analysis: 34 CFR 300.346 (iv) requires that the IEP “consider the communication needs of the child, and in the case of a child who is deaf or had of hearing consider the child‟s language and communication needs, opportunities for direct communication with peers and professionals in the child‟s language and communication mode, academic level and full range of needs include opportunities for direct instruction in the child‟s language and communication mode.” This information must be a part of the IEP. Comment: 226.230(a)(6) requires IEPs to include “An explanation of any limitations on the degree to which the child will participate with nondisabled children in regular education and in extracurricular and other nonacademic activities.” Some comementers suggested using the federal language in section 34 CFR 300.347. Another commenter suggested adding language that would not only require an explanation but also a justification. The commenter wrote that part of ISBE‟s monitoring activities, at 34 CFR 300.556, is to review a school district‟s justification for placements not consistent with the least restrictive environment. Analysis: 226.230(a)(6) mirrors the requirement of section 34 CFR 300.347 that IEPs include “An explanation of the extent, if any, to which the child will not participate in the regular education class and in the activities described in paragraph (a)(3) of this section.” Section 226.230(a)(6) is more concise and clearly written than 34 CFR 300.347. One of the definitions of “explanation” is to provide a justification so the terms are equivalent. Comment: 226.230 (a)(8) addresses the requirements of 34 CFR 300.347(B)(6) requiring that the IEP include the projected date for beginning the services …frequency, location, duration of each of the services…” The proposed Illinois rules add an additional requirement that the IEP also include the implementer(s) of each service. The commenter suggested removing the language regarding the implementers. 51 Analysis: This information has been documented by districts in IEPs in the past. Further, 34 CFR 300 Appendix A, Question 35 explains that to identify the district‟s level of resource commitment to the parents, IEP team members, and IEP implementers would fulfill this requirement. The amount of time and the services to be committed must be appropriate for the student and stated in a manner that is clear to all parties involved. District accountability would be greatly reduced if the level of their commitment was not identified in the IEP in the form of identifying what personnel will be providing the services to the child. We agree to add language that will clarify this issue. Comment: 226.230 (a)(9) explains the district‟s responsibility to provide services beyond the normal school year in order to receive FAPE when appropriate. The commenter reading from an earlier version rather than the officially proposed regulations, requested language that would reference this statement as meaning extended school year services. Analysis: Language was already added to the statement in the proposed regulations clarifying that the rule was in regard to “extended school year services.” Comment: 226.230 (a)(10) requires that the IEP include a statement regarding the placement that the team determines to be appropriate for the child. The commenter recommended that this requirement be stricken, as it is not required at 34 CFR 300.347. Analysis: As expressed in other parts of the regulations, the IEP team must determine the proper placement (location) in which the district will provide each of the services enumerated in the IEP. The IEP team must identify the placement for the child represented by a composite of the various locations or environments. 34 CFR 300.501 states that parents must be part of the “group that makes decisions on the educational placement of the child.” Comment: 226.230 (a)(11) requires that the IEP include “any additional information deemed necessary or pertinent by the IEP team.” The commenter states that this requirement exceeds federal regulations and should be stricken. 52 Analysis: The proposed requirement that the IEP include general information deemed necessary or pertinent by the IEP team is not required by 34 CFR 300.347 The requirement was included in the proposed regulations, as a “catch all” for issues not easily captured within the content of the IEP as required by 34 CFR 300.347 and proposed Illinois Rules 226.230. Comment: 226.230 (b) specifies the components of a behavioral management plan for those students requiring such a plan. The commenter suggests that this entire section be stricken, as it is not required by IDEA97. Analysis: One of the major criticisms of IDEA97 is the lack of specificity regarding what is a behavioral intervention plan and functional behavioral assessment. Because of the litigious nature of this issue, the State would be remise not to provide some regulatory guidance. 34 CFR 300.346 (a)(2)(I) requires that the IEP include “special factors …in the case of a child whose behavior impedes his or her learning or that of others, consider, if appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior.” Appendix A states this means that in most cases when the behavior “is, or can be readily anticipated to be repetitive” a proper IEP would include a behavioral plan (see the response to Question 38 at p.12479 or Appendix A). On June 14, 1999, the Illinois State Board of Education issued a “Communication on Discipline of Children with Disabilities” which does not carry the weight of regulations but does provide guidance to local school districts. As with any guidance issued by the State Board, it will be used as a standard from which hearing officers and the courts will hold district accountable. The proposed language at 226.230 (b) reflects the guidance previously provided by the State Board of Education and is consistent with 34 CFR 300.520 and 105 ILSC 5/14- 8.05. Comment: 226.230 (d) requires the IEP to include transition information for students who have reached the age of 14 ½. Commenters requested changing the transition information that must be addressed in the IEP for a student who has reached the age of 14 ½ to a student who has reached the age of 16 in order to match the federal language. Analysis: Section 5/14-8.03 of the School Code requires a statement of transition goals for a student who has reached the age of 14 ½. State statute goes beyond federal regulations and must be included. 53 Comment: 226.230 (e) pertains to the transfer of rights when the student reaches the age of majority. The commenter requested clarification of the rights that transfer and of the process to be used to assure that the rights transfer to the student. Further clarification was requested regarding what happens when a parent does not take any steps to transfer parental rights and a student clearly needs to have someone oversee his/her decision-making. Analysis: 226.230 (e) identifies the rights that transfer as “the rights under the Individuals with Disabilities Education Act.” Districts should already have procedures for disseminating the Explanation of Procedural Safeguards Available to Parents of Students with Disabilities and explaining the rights to parents. The same procedures would apply to students reaching the age of majority. Comment: 226.230 (g) states those IEP requirements which do not apply for students incarcerated as adults. One commenter desired this section to be expanded to include students who are incarcerated or detained who are not yet adults. Other commenters suggested that language should remind the Department of Corrections that it is considered a school district. Analysis: 34 CFR 300.311(b) stipulates that these exclusions only apply for students who are convicted as adults under State law and incarcerated in adult prisons. It is inappropriate for the regulations to address a statement reminding another agency of their responsibilities that are identified in the School Code. Determination of Placement Comment: 226.240 (a) states that the IEP team shall make the placement determination. The commenter is suggesting that we revise this language deleting the phrase IEP team and include the language found at 34 CFR 300.552 regarding placement decisions. Analysis: Clearly IDEA97 places the decision regarding placement squarely in the hands of the IEP team. Attachment 1 – Analysis of Comments and Changes, page 12638, states that the IEP provisions of the regulations already incorporate statutory language concerning placement determinations. The language in the proposed rules at 226.240 (a) is consistent with the IDEA97 and provides needed guidance to this federal requirement. 54 Comment: 226.240 (c)(3) states that “Each child‟s placement shall be as close as possible to his or her home.” The commenter suggested deleting this language due to the problems this causes for districts under desegregation orders since busing forces many kids to schools other than the neighborhood schools. Analysis: The condition expressed by this language is required by federal regulations at 34 CFR 300.552 as are the other conditions for placement determination. Comment: 226.240 (c)(4) states that “Unless the IEP requires some other arrangement, a child shall be educated in the school he or she would attend if not disabled.” The commenter suggested adding language that states, “and in the class or classes” he or she would attend. Analysis: Although the federal language does not include the term “class,” it is clear that this is within the intent of the requirement. Therefore, the language will be included. Comment: 226.240 (d) states that, in determining placement, the placement decision shall permit the child to participate as appropriate in nonacademic and extracurricular services and activities. Commenters suggested adding the following language, “except in cases where the student has been expelled.” Analysis: The factors enumerated under determination of placement must always be considered at an IEP meeting even when the child has been expelled from school, and this is one issue that must be considered. Therefore, the student‟s participation in such activities must be an IEP team determination. Comment: 226.240 (e) states that “placement determination shall be reviewed at least annually or anytime the IEP is revised. The commenter suggests striking the language “or anytime the IEP is revised,” contending that it exceeds federal law. Analysis: The language at 226.240 (e) is consistent with IDEA97. Attachment 1 – Analysis of Comments and Changes states that 34 CFR 300.552 (which addresses placement) incorporates the statutory requirements of the IEP found throughout the regulations. While minor adjustments to the IEP may not change the student‟s LRE, the team itself can only make that decision. Not addressing the potential impact of the change (no matter how slight) on the child‟s placement, 55 would place the district in a vulnerable position if later challenged with having to defend its placement recommendation. Further, the IEP team does not have the authority to pick and choose those components it wishes to address. Rather, the IEP team must ensure that a compliant IEP is produced meaning that the team must revisit all IEP components, including the appropriateness of the placement, each time it revises the IEP. Child Reaching Age Three Comment: 226.260 provides information regarding the district‟s responsibility when a child with an IFSP is referred to the school district and when a child without an IFSP is referred to the district. One commenter suggested putting the information in sequential order. Another commenter suggested adding language that would require a school district to set a schedule for child find, evaluation and placement activities so that FAPE is provided before the child‟s third birthday. Analysis: It is unclear what the commenter was suggesting regarding sequential order. It is the district‟s obligation to set a specific schedule that will follow the child find, evaluation, and placement requirements in the regulations and make those known to the public. 56 SUBPART D PLACEMENT SECTION 226.300 to 226.350 Continuum of Placement Options Comment: 226.300 (a)(5) deals with the regular education class as an option on the continuum of placement options. It states that a child receives her/her educational experience through instruction in the regular classes which are supplemented through “Modification of curricular content or education methodology.” The commenter requested this language be expanded to explain the meaning. Analysis: The federal regulations do not provide a definition or further explanation. Comment: 226.300 (a)(6) provides supplementing the regular classes through supplementary service, such as itinerant services or services in a resource “room” in conjunction with the regular class placement. The commenter suggested changing the language of resource “room” to correspond with language written in 226.730 (b) which discusses resource “class or service.” Analysis: The commenter is correct in that the language needs to correspond with other language in the document. The definition in section 226.730 (b) in the proposed regulations clarifies the meaning. Comment: 226.300 (d)(3) provides information regarding home/hospital services and states that the amount of instructional or related services time be determined in relation to the child‟s needs. The commenter requested adding language that states, “For eligible students who will be absent two or more weeks….” Analysis: The language that the commenter suggests adding in 226.300 (d)(3) is already stated in 226.300 (d)(1) which states, “When an eligible student has a medical condition that will cause an absence for two or more consecutive weeks of school or ongoing intermittent absences….” Comment: 226.300 (e) refers to State-Operated or Nonpublic Programs as being on the continuum of options. The commenter suggested changing the language as follows, “The child is served in a State-operated or Nonpublic facility because his 57 or her disabilities are so profound or complex that no services offered by the public schools can meet his or her needs the nature or severity of the child‟s disability is such that education in regular classes with the use of appropriate supplementary aids and services cannot be achieved satisfactorily.” Another commenter suggested using the federal language in 34 CFR 300.551. Still another commenter stated that this regulation exceeds IDEA and it should be deleted. Analysis: The commenter‟s suggested change would mistakenly lead the IEP team to believe that a student who cannot be served appropriately in a regular classroom environment with supplementary aides and services could forego consideration of the sequential steps on the continuum of placement options and be placed in a State operated residential facility which is one of the most restrictive placement options. Rather, the federal regulations require the IEP Team to always consider placement of a student in the sequential order on the continuum of placement options from least restrictive to more restrictive and to justify the reasons each of these placements are rejected. Section 226.300 lists and explains the continuum of placement options enumerated in section 34 CFR 300.551 of the federal regulations (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions). Revising 226.300(e) to the language in 34 CFR 300.551 would restate 226.300(a-f) and fully omit addressing institutional options. The specific terms the commenter is referring to (State-operated and nonpublic facilities) fall within the parameters of special schools and institutions. Related Services Comment: 226.310 describes in broad general terms some of the supports that related service providers furnish. One commenter suggested that some of the services listed under the different explanations are more pre-IEP and pre-eligibility activities and should be separated in the regulation and placed under a setting closer to Section 226.160 which refers to eligibility determination. One commenter requested language be added to specify that related service providers furnish prevention and prereferral services. Several commenters stated that the proposed regulations do not “define” all of the related services identified. Another commenter suggested that the listing of related services in the introductory paragraph be deleted because, according to the commenter, they are defined elsewhere. One individual stated that this rule fails to establish the required credential/qualification of the personnel qualified to evaluate, train or implement assistive technology devices. 58 Analysis: Although one commenter is correct in stating that some of the services listed are referring to pre-eligibility activities, we feel that the language needs to be in one place as opposed to duplicated in several sections. The federal language does not actually provide a “definition” of the related services terms listed. Instead it provides an explanation of some of the related services. We chose not to provide an explanation of all terms because the list in the proposed rules is not exhaustive. In addition, the related services listed are not explained elsewhere in the proposed regulations. The regulations describing the provision of related services are not intended to be all inclusive of services furnished. Some of the descriptors used, in fact, do describe services of a preventative nature and those that are provided before a student is determined eligible for special education. Examples in the regulations include: services to assist parents in understanding the special needs of their child; provision of information regarding child development; obtaining, integrating, and interpreting pertinent health information about a child as it applies to learning; obtaining, integrating, and interpreting information about children‟s behavior and conditions related to learning; and working with parents and others on those problems in a child‟s living situation that affect the child‟s adjustment in school. The credential requirements in the area of assistive technology have not been established in this state. Comment: 226.310 (a) explains assistive technology as a related service. One commenter suggested removing this section since it is not under the related service section of the Federal regulations. One commenter suggested adding language to subsection (a)(1) to read, “An appropriate The evaluation of the needs of a child by a qualified assistive technology evaluator with a disability, including a functional evaluation of the child in the child‟s customary environment including home, school, work (for transitioning students) and extra-curricular activities.” One commenter suggested changing a word in the language from “by” to “for” in 226.310 (a)(2). Other commenters suggested adding language to (a)(5) which would include ongoing training and (a)(6) which would include training for all individuals providing education including regular education teachers. Analysis: While the term “assistive technology” is explained in an area other than under related services in the federal language, it fulfills the requirements of a related service. The commenter suggested moving this language out of the related service area but provided no suggested location in which to move the language. With regard to the suggestion of changing the language to require a qualified assistive technology at 226.310 (a)1), the regulations already require that evaluators be qualified. The term “customary environment” does include all of the child‟s environments, but we will change the language to make it plural. 59 We agree with the recommended change in the language at 226.310 (a)(2). The additional language at 226.310 (a)(3) suggested by the commenter, “including regular education teachers,” is addressed in the proposed regulation‟s use of the language “individuals providing education.” Comment: 226.310 (a)(6) requires training or technical assistance for individuals providing education or rehabilitative services regarding assistive technology. The commenter suggested adding language that would include the parents in this process. Analysis: The language requested by the commenter is already stated in 226.310 (a)(5) which requires training or technical assistance for the child or, if appropriate, the child‟s family. Comment: 226.310 (d) provides an explanation of orientation and mobility services as services provided to a blind, visually impaired, or otherwise disabled child. The commenter stated that the federal definition is specific to services for the blind or visually impaired and does not include the language or otherwise disabled child. In addition, the federal regulations do define “travel training” at 34 CFR 300.26 which would be for the otherwise disabled children. Analysis: The proposed federal language included the language “otherwise disabled” and did replace the language with the definition of travel training in the final copy of the regulations. We agree that the language needs to be changed to reflect the federal regulations. Comment: 226.310 (l) explains transportation as a related service. It states “Special transportation services required because of the child‟s disability or the location of the special education program or related services. These services are in addition to the regular transportation services provided by the local school district.” The commenters stated that the rule does not clearly address special transportation as thought of in the least restrictive environment because it removes the student from the home environment including the regular bus. Another commenter suggested language for this section that would include the use of support staff on vehicles used to transport students”. 60 Analysis: The intent of the rule is that modifications on the regular school bus are also considered “special transportation.” However, since the commenters felt the language was unclear and possibly suggests to district staff that the rule precludes regular transportation with adaptation or modifications as a type of related service, we will add clarifying language. Placement by School District in State-Operated or Nonpublic Special Education Facilities Comment: 226.330 provides information regarding the placement of students with disabilities by a school district in a State-operated or nonpublic special education facility. It states that, “When an IEP Team determines that no public school‟s special education program can adequately meet a child‟s needs, the child may be placed in a State-operated or Nonpublic special education facility.” One commenter suggested eliminating the criteria for placement in section 226.330 (Placement by School Districts in State-Operated or Nonpublic Special Education Facilities) since there is already an earlier section dealing with the determination of placement at 226.240. In addition, the commenter suggested moving the last sentence in the opening paragraph at 226.330 to one of its subsections. The sentence states that “Evidence of a condition that presents a danger to the physical well-being of the student or to other students may be taken into consideration in identifying the appropriate placement for a particular child.” Another commenter perceived that portions of this section, which he did not identify, are in excess of federal regulations and that the rules should only reflect federal requirements in this area. Others stated that the language is not found in IDEA so the language should be deleted. Another commenter indicated that an IEP Team cannot determine that “no public school‟s special education program can adequately meet a child‟s needs.” This individual also suggests that the term “adequately” be replaced with “appropriate” as used elsewhere in the regulations. Analysis: The language in Section 226.240 regarding the determination of placement is required by the federal regulations at 34 CFR 300.552. In addition, the language in this section provides clarifying language regarding the specific placement of students with disabilities in a State-operated or nonpublic facility, some of which directly reflects the federal language at 34 CFR 300.349 and 300.401. The last sentence in the introductory paragraph of Section 226.330 represents a condition to be considered when making a placement as opposed to the subsections which are referring to district responsibilities. 61 While some of this section emanates from federal regulations at 34 CFR 300.349 and 34 CFR 300.401, the majority emanates from current State regulations at 226.420, 226.430, and 226.440 and Section 14-7.02 & 14-4.01 in the school code. Since the commenter failed to specify the exact portion(s) which he felt were in excess of federal regulations, it is not possible to discern what his objections are and the extent to which these items are required by our own statutes. The commenter is correct in the need to change this language that the IEP Team cannot determine that “no public school‟s special education program can adequately meet a child‟s needs. These changes will make the language more accurate and consistent. Comment: 226.330 (c) provides language regarding student placement by school districts in State-operated or nonpublic special education facilities. The commenter wants school districts to pay for placements and services provided to pre-school eligible students whom the parents place in a regular day care facility. Analysis: Language regarding pre-school eligible students does not need to be explicitly provided. Section 14-7.02 of the School Code incorporates the meaning of children with disabilities (“between the ages of 3 and 21) as set forth in 5/14-1.02. Also, caution should be exercised in light of potential misinterpretation and misapplication of recent case law where private pre-school tuition reimbursement was awarded because of the district‟s failure to provide a LRE. Comment: 226.330 (c)(1) and (4) addresses approval for nonpublic special education programs (1) for the school year and (4) for the disability categories applicable to the student. It was suggested that the two paragraphs be reversed. Analysis: This language is not in sequential order, but is rather a listing of conditions. However, if it would make more sense to the reader, we can rearrange the order. Nonpublic Placements by Parents Comment: 226.340 addresses the provision of services for students with disabilities placed unilaterally by their parents in nonpublic facilities. The commenter suggested 226.340 (a) be stricken contending that IDEA97 and specifically 34 CFR 300.403 prohibits access to due process. 62 Analysis: The commenter is partially correct in that parents who unilaterally place a student in a private/nonpublic facility, are not entitled to due process to challenge the content of the individual service plan or IEP developed by the local school district. They are entitled to due process procedures with respect to any challenge regarding the district‟s alleged failure to provide FAPE. The type of challenge is addressed at 34 CFR 300.403(b) and is what is commonly referred to as a “Burlington” challenge. When a parent unilaterally places a child in a private/nonpublic school because they believed that the district‟s proposed IEP or previous IEP failed to provide the child with a free appropriate public education (FAPE) they are entitled to a due process hearing. The proposed language a 226.340 (a) is consistent with that found at 34 CFR 300.403(b) of IDEA97. Comment: Section 226.340 (b) addresses students enrolled in nonpublic schools or facilities by parents and specifies that such students are not entitled to the same services as students enrolled in public schools. The commenter stated that there is a need to include language from 34 CFR 300.403 requiring parents to notify districts regarding a unilateral placement to a nonpublic facility due to FAPE since the district may or may not be required to provide payment. Analysis: 226.340 does address students enrolled in nonpublic schools or facilities “without the consent or referral of the local school district.” It does not include a notification requirement. The rule refers the reader to 34 CFR 300.403 which addresses this when FAPE is an issue. The federal rule, briefly stated, allows only for disputes revolving around FAPE. 34 CFR 300.403 was seen as sufficiently self-explanatory to omit from the state regulations. Service to Children in Private Schools Comment: 226.350 (a) provides language regarding services to children placed in private schools by their parents. The commenter suggested deleting 226.350 (a)(1)(2)(3) and (5) since the commenter felt that it went beyond the federal regulations. Another commenter stated that the phrase “attempt to make free appropriate public education available” regarding unilateral placements should be deleted since it is not required by the federal regulations. Analysis: The language the commenter suggested deleting is taken directly from the federal regulations at 34 CFR 300.454. The phrase, “attempt to make free appropriate public education available” that the commenter suggested deleting is not a part of this rule. 63 Comment: 226.350 (a)(1) parallels the language found at 34 CFR 300.451(b) and 300.454(b) which requires that the local school district “consult” with appropriate representatives of private school children with disabilities on how to carry out the provision of services. The commenter suggests that the language in proposed 226.350 (a)(1) “by the end of each school year” be stricken and the federal language “in a timely and meaningful way” found at 34 CFR 300.454(b) be added. The commenter states that the local school district should be afforded the flexibility of determining when and how this consultation shall take place. Analysis: The proposed language sets forth a timeline (by the end of each school year) for implementing this federal requirement. This timeline provides districts a framework for ensuring compliance with this requirement. The phrase “by the end of each school year” affords districts sufficient flexibility and at the same time serves as a reminder that this activity must be completed. Comment: 226.350 (b) requires that students placed in private schools by their parents are provided with services comparable in quality to the services provided to eligible children enrolled in the district. One commenter wanted the language “comparable” to be changed to “equal to” the services they would receive in the regular education setting. Another commenter felt that the regulation is not specific with regard to the district‟s limited liability to expend funds only equal to the amount of federal funds generated. Analysis: The proposed regulation clarifies “comparable in quality” to mean provided by similarly qualified personnel. In addition, 34 CFR 300.453 explains how a district determines their expenditures and this language should be referenced as the commenter suggested in the regulations to provide further clarification. Comment: 226.350 (d) provides language regarding the provision of transportation to and from a site other than the private school. One commenter suggested deleting this language as the commenter felt it was ambiguous. Another commenter wrote that transportation should not be the responsibility of the public school district. Analysis: The language regarding transportation is taken from the federal language at 34 CFR 300.456 and we will add further federal language to clarify. 64 Comment: 226.350 (e) provides information related to services for children placed in private schools. It explains that “when a student receives services from a school district pursuant to this part, the procedural safeguards ……shall be available only with respect to complaints….The due process requirements ….shall not apply.” The commenter requested clarification of this rule and questioned the preclusion of the nonpublic facility being a party to a due process hearing. Analysis: The proposed language was taken from the federal regulations at 34 CFR 300.457 which does state that a complaint may be filed regarding the process, but the due process rights do not apply in this type of situation. Due process rights apply only when a parent unilaterally places a child in a private/nonpublic school because they believed that the district‟s proposed IEP or previous IEP failed to provide the child with a free appropriate public education (FAPE) as explained in this part at section 226.340. 65 SUBPART E DISCIPLINE SECTION 226.400 to 226.440 Disciplinary Actions Comment: The commenter believes that the language in the disciplinary section of the regulations should be changed to require that “the IEP meeting precede placement in the alternative educational setting, rather than follow it, in order to conform to federal regulations.” Analysis: The commenter did not provide a citation for the rule being referenced in the above recommendation making it difficult to respond to this interpretation of the proposed language. However, a general response to this comment is that, 226.400 - 226.440 Subpart E: Discipline, allows the district to place a student in an interim alternative education setting and convene an IEP meeting within 10 school days which duplicates 34 CFR 300.520 (a). In responding to this comment, it became evident that the language in Subpart E either needs to be changed or subheadings inserted to clarify that this section of the rules is not delineating a sequential process to be followed for discipline. Comment: 226.400 states that “School personnel may order the removal of an eligible child…..as long as such repeated removals do not constitute a pattern based on consideration of the factors enumerated at 34 CFR 300.519.” Commenters suggested enumerating the factors specified in the federal regulations as opposed to referring the reader to the federal regulations. In addition, one of the commenters suggested adding a definition of “change in placement” when referring to disciplinary removals. One commenter suggested adding language from the comment section of the federal regulations that would state that if parents and school personnel agree about a proposed change in placement for disciplinary reasons, the rules concerning the amount of time the child may be removed do not have to be used. Analysis: We agree that language should be added from the federal regulations to clarify the specific factors identified. We agree to add a definition of a “change in placement for disciplinary removals” and the provided language from the federal regulations at 34 CFR 300.519. One commenter misinterpreted the language in the comment section regarding placement of a student in another setting for up to 45 days as being requirement to be placed for a 45 day time period. In fact, the rule establishes the 45-day limit as a maximum amount of time. Therefore, the suggested language is not needed. 66 Comment: 226.400 (b) provides that any suspension of a student shall be reported immediately to the student‟s parents along with a full statement of the reasons, a copy of which shall also be given to the school board. The commenter wrote that there are other ways to inform the school board than to send them copies of the actual written statement given to parents. They felt that this requirement is unnecessarily cumbersome. Analysis: Section 5/10-22.6 in the School Code requires this specific language. Comment: 226.400 (c) states that when a district first removes a child for more than ten school days in a school year or initiates a removal that will constitute a change in placement, the district shall, no later than ten business days after the date of such removal convene an IEP meeting. The commenters stated that it would be difficult for districts to meet the federal timeline of notifying parents of a meeting not later than 10 business days after removing a student when that removal constitutes a change in placement. Analysis: In the Attachment 1 – Analysis of Comments and Changes of the Federal language, it was clarified that the district must convene an IEP meeting within 10 business days of removing the child, to develop an assessment plan, and as soon as practicable on completion of that plan, develop appropriate behavioral interventions. It is very clear that the federal rules require a meeting within 10 business days. Comment: 226.400 (c)(2) addresses the issue of discipline and specifically the district‟s responsibilities to convene an IEP meeting to review, revise or develop, if necessary, a functional behavioral assessment and behavioral intervention plan. The commenter suggests that the language at 226.400 (c)(2) be stricken and replaced with “If the district has not conducted a functional behavioral assessment and if the child does not have a behavior intervention plan, convene an IEP meeting to develop an assessment plan.” Analysis: The proposed language at 266.400 (c)(2) is consistent with 34 CFR 300.520 (a)(i)(ii) and with the Attachment 1 – Analysis of Comments and Changes. The difference appears to be one of emphasis. The proposed language emphasizes first the convening of the IEP meeting and the commenter places emphasis first on the presence of a functional behavioral assessment and behavioral 67 intervention plan. The language proposed by the commenter has the same meaning as the proposed language. The proposed language was crafted to ensure parallel grammatical construction. Comment: 226.400 (e) refers to a student‟s suspension from the school bus. It states that “…A „bus suspension‟ shall be counted as a day of suspension from the educational program if: 1) the student‟s IEP calls for transportation as a related service; and 2) the district does not provide another means of transportation.” Two commenters suggested deleting this section entirely since “bus suspension” is not defined in the federal regulations. Other commenters suggested that (e)(2) be deleted since it does not allow that when parents agree to transport the child to school it would not count as a suspension. Analysis: The school district is obligated to provide transportation if the IEP determines it as a related service. Suspending transportation privileges to a student which results in prohibiting the student from attending school constitutes a suspension as defined in Section 5/10-22.6 of the School Code. If a child is suspended from the bus and is unable to attend school, then the suspension must meet the requirements in the School Code. This rule addresses the issue but the commenters are correct in that the language does need to be changed to clarify this point. Comment: 226.400 (f) provides the language that school personnel may order a change in placement for an eligible child to an interim alternative educational setting if the child carries a weapon or knowingly possesses or uses illegal drugs. The commenter wrote that this is a “dangerous rule” in that it may allow placement change for those students who are unable to understand their actions, such as those who are mentally impaired. Another commenter wrote that the rule fails to mention that school personnel may order a change in placement for students who are extremely dangerous. Analysis: The proposed language mirrors the federal regulations at 34 CFR 300.520 which does allow school personnel to order a change in placement if a child brings a weapon to school or knowingly possesses, uses, or sells drugs at school. The federal regulations at 34 CFR 300.521 provides language that allows only a hearing officer to change a placement for a student who is considered “dangerous.” The proposed regulations address this issue at 226.655 under expedited due process hearings. We agree that language should be added in this section to address this issue. 68 Comment: 226.400 (g) states that “no later than ten school days after making the decision to place the child in the alternative setting, the district shall convene and IEP meeting as delineated in subsection (c) of this Section.” The commenter is suggesting that the word “school” be stricken and the word “business” be used. Analysis: The issue that the commenter is referring to is addressed at 226.400 (c) which states what the district‟s responsibility is when first removing a child for more than ten school days in a school year or initiates a removal that will constitute a change in placement. The language at 226.400 (g) needs to be slightly restructured to illustrate that it refers to a different requirement. Comment: 226.400 (h) & (j) refers to an expulsion constituting a change in placement and, in the second sentence states, “Cessation of services to an eligible child is prohibited during a period of expulsion.” The commenter wants clarification that students must be served on the 11th day of suspension. Analysis: The desired language is provided earlier in the same rule at 226.400 (a)(1) which states that after an eligible child has been removed from his or her placement for ten school days in the same school year, the district shall provide services to the child on any subsequent day(s) of removal. Comment: 226.400 (h)(1), (2), & (3) explains that the interim alternative setting in which a child is placed due to disciplinary reasons shall be identified by the IEP team, shall be selected to enable the child to progress in the general curriculum, shall allow the child to continue to receive services, and shall include services and modifications designed to address the behavior that resulted in the child‟s removal. The commenter suggested adding language that would require the IEP team to establish a timeline for the child to be in the alternative placement. Analysis: The proposed regulation reflects the requirements as stated in 34 CFR 300.522. In an early subsection of the proposed regulations (226.400 (f)), the language states that “school personnel” may order a change in placement for up to 45 days. The federal regulations do not require the IEP team make the determination regarding the timeline. Instead, the IEP team must identify what interim alternative educational setting the child will be placed. Comment: 226.400 (h)(3) states that “the placement include services and modifications designed to address the behavior so that it does not recur.” The commenter objects to the phrase “so that it does not recur”, making the point that 69 reoccurrence may be outside the control of the district. The commenter recommended replacing the phrase with “are designed to prevent the behavior from recurring” which is the exact language found at 34 CFR 300.522 (b). Analysis: While we believe that the proposed language is consistent with 34 CFR 300.522 and does not obligate the district to a standard that may be outside its control, we are recommending that the phrase “so that it does not recur” be replaced with “are designed to prevent the behavior from recurring.” Comment: 226.400 (i) addresses the conditions in which a student with a disability can be expelled from school. The proposed language reads “No eligible child shall be expelled for behavior or a condition which is, or results from, the child‟s disability.” One commenter suggested that the phrase “for behavior or a condition which is, or results from, the child‟s disability” be replaced with “for behavior which is a manifestation of the child‟s disability.” Another commenter suggested changing the language to read, “If a district is considering expelling a student expulsion or change in placement…” Analysis: The intent of the proposed language found at 226.400 (i) and the federal language found at 34 CFR 300.523 (d) are identical. The proposed language at 226.400 (i) clearly indicates that a student can not be expelled for behavior, which is a manifestation of the child‟s disability. This appears to be merely an issue of semantics. In addition, the commenter‟s interpretation of adding the language “change in placement” does not apply in this circumstance. Comment: 226.400 (i)(3) requires that the child be maintained in an appropriate placement pending the consideration to expel. A few commenters suggested deleting all but the first sentence in this section while others suggested deleting the entire section. The commenters contend that the proposed regulation places an overly broad, and at times inapplicable, requirement on school districts to maintain the child in an appropriate placement pending action taken regarding expulsion. Analysis: The intent of the proposed regulations is to ensure that the stay put rights of the child are protected. No regulation allows the district to cease the provision of educational services to an eligible student being considered for expulsion. If the student has been a danger to himself or other the appropriate placement may not be the placement required by the IEP when the action occurred as required by 34 CFR 300.121. The parent has a right to due process if he/she feels that the district is not maintaining the child in an appropriate placement pending consideration of expulsion. 70 Manifestation Determination Review Comment: 226.410 (c) & (d) states the requirements for conducting a manifestation determination review. The commenter suggests that the phrase “child review team” be replaced by the federal language “IEP team and other qualified personnel.” Analysis: The child review team which is described in 226.120 meets the federal requirements of the “IEP team and other qualified personnel.” The child review team is unique to Illinois regulations and provides much needed guidance as to who must be present at meetings held for the purpose of determining eligibility, reviewing and considering evaluation data and making manifestation determinations. The proposed language at 226.410 (c) & (d) is consistent with IDEA97 and provides needed guidance to local school districts. Comment: 226.410 (e) states that “the team shall determine that the subject behavior was not a manifestation of the child‟s disability only if all of the following statements are true..” The commenter suggests that the word “shall” be stricken and the word “may” be substituted and the phrase “all of the following statements are true” be stricken and the phrase “it is determined that” be used instead. Analysis: The suggested revisions the commenter makes would duplicate the language as it is written in the federal regulations at 34 CFR 300.523 (d). The base paragraph of 226.410 (e) explains what the IEP team must do when the participants have determined that the student‟s behavior was not manifestation of the child‟s disability under the specifically listed conditions which are listed as items (1), (2) and (3) under that paragraph. If any of the conditions listed under (1), (2) and (3) are not met, the behavior “must be” considered a manifestation of the child‟s disability. The language at 226.410 (e) does reflect accurately the intent of the federal regulations when it is read in light of 34 CFR 300.523 (d) and 300.523 ( c) (1) Comment: 226.410 (f) states that “If the child‟s behavior is determined to have been a manifestation of his or her disability, any deficiencies identified in the IEP or its implementation shall be remedied as soon as possible.” The commenter requested a clarification of the terminology “as soon as possible” or changing the language to read, “but no later than…” 71 Analysis: It is difficult to foresee in regulation every contingency that might inhibit an earnest district‟s attempts to remedy an IEP or its implementation. The phrase “as soon as possible” was used to allow for such unavoidable situations. However, the phrase is open to interpretation and could be tightened somewhat by changing the regulatory language to require the district to take immediate steps to remedy the situation. Appeals Comment: 226.420 (c) states that “If a parent requests a due process hearing to challenge the interim alternative educational setting or the manifestation determination, the child shall remain in the interim alternative educational setting pending the decision…” The commenter wrote that the “stay put” is only when a parent challenges the interim alternative educational setting for weapon or drug offenses; it does not apply to placement for dangerous behavior. It was suggested that the language clarify between the two. Analysis: The federal regulations at 34 CFR 300.526 specifically states that if the parent challenges the interim alternative educational setting for either the “weapon or drug offense” or for “dangerous behavior” the child‟s placement shall remain in the interim alternative educational setting. The proposed regulations reflect the federal rule. Comment: 226.420 (e) states that, “If school personnel consider that it is too dangerous for the child to be returned to the current placement, the district may request an expedited due process hearing to extend the length of time the student may remain in the alternative educational setting.” The commenter suggested adding language describing what alternative the parent has if the current placement is not appropriate, the alternative placement is too dangerous, or the child is regressing. Analysis: 226.420 (a)-(d) clearly describe the parent‟s alternatives if they disagree with the district‟s determination. Additionally, the parents would be expected to provide the hearing officer of the expedited hearing with evidence to support their contention that the current placement is not appropriate, the alternative placement is too dangerous, or the child is regressing. 72 Protection for Children Not Yet Eligible for Special Education Comment: 226.430 (b)(2) states that a district is “deemed to have knowledge that a child may be an eligible child if, prior to the incident, if…. the behavior or performance of the child demonstrates the need for such services.” The commenters suggested adding language at the end of the sentence such as, “in accordance with the thirteen disability areas cited in IDEA 33.7.” Analysis: The language is taken directly from the federal language at 34 CFR 300.527. The intent of the language is to incorporate students who demonstrated the “potential” need for such services as a legally protected group under IDEA. We agree to add clarifying language. Comment 226.430 (b)(3) provides that the district is deemed to have knowledge that a child may be an eligible child if, prior to the incident, the parent requested an evaluation. The commenter requested clarification of this language. Analysis: The specific language is from the federal regulations and the intent of the language is pursuant to when a “referral” (section 226.110 in the proposed regulations) is made. Comment: 226.430 (b)(4) states “The district is deemed to have knowledge that a child may be eligible for special education services …..if the child‟s teacher or another school employee has expressed concern in writing in accordance with the district‟s child find or referral procedures.” The commenter stated that school personnel need to follow the “prereferral” procedures established. Analysis: This rule is a part of the district‟s “referral” procedures. When a school employee expresses concern in writing, the child would be deemed to be “referred.” Therefore, we cannot make a rule that “prereferral” procedures be used first. Comment: 226.430 (d)(1) states, “When a request is made for an evaluation of a child during the time period when the child is subjected to disciplinary measures, the district shall conduct an evaluation in an expedited manner.” The commenter requested an explanation of the terminology of completing an evaluation in an “expedited manner” when a request is made for an evaluation of a child during the time period when the child is subjected to disciplinary measures. 73 Analysis: No express definition of “expedited evaluation” is provided in federal law or rule. However, since the law and rule do specify that the evaluation be done in an “expedited” manner, this means that the evaluation must be conducted in a shorter period of time than a normal evaluation. Referral to and Action by Law Enforcement and Judicial Authorities Comment: 226.440 (a) provides districts the authority to report a crime committed by a child with a disability to appropriate authorities. The commenter suggested that the phrase “as required by relevant statutes” be stricken as it could be interpreted to prohibit a school district from reporting a crime unless specifically authorized by statute. According to the commenter such a limitation is inappropriate and is not required by federal regulations. One commenter suggested adding language that would limit police intervention to life-threatening situations only. One commenter suggested establishing pre-conditions for referral of children with disabilities to the police. Analysis: The intent of the phrase is to ensure districts follow statutory requirements as they evolve without changing the rule each time changes occur. Striking the phrase will not change the intent and therefore commenters suggestion is acceptable. The federal regulations do not provide for limitations regarding police intervention. Therefore, these regulations cannot address this issue. Comment: 226.440 (b) provides districts the authority when reporting a crime to transmit to the appropriate authorities records maintained by the school district to the extent permitted by FERPA. One commenter requested clarification of FERPA. Another commenter suggested that we also reference the Illinois School Student Records Act. Analysis: It would be burdensome to restate in these rules all of the myriad requirements that apply to special education students that are found in other State and Federal Statutes such as FERPA. This particular regulation as proposed does present several problems. Pursuant to the Illinois School Student Records Act (Section 10/1 in the School Code), schools have certain obligations prior to releasing records. In addition, a school district must ensure that, prior to the release of a record that could be construed as a mental hearth record, it be released in accordance with the Mental Health and Developmental Disabilities Act (740 ILSC 74 110/1 et seq.). Since the passage of IDEA97, the State Board has advised districts to orally inform law enforcement and judicial authorities about the student‟s disability status and to ask the officials to obtain or issue a court order authorizing the release of the record, if possible. The commenters suggestion is well taken and should be given serious consideration. 75 SUBPART F PROCEDURAL SAFEGUARDS SECTION 226.500 to 226.570 Language of Notification Comment: 226.500 (a)(2) sets forth the language of notifications requirements. It states that notices be “provided in such a way as to accommodate the language use pattern of the respective parent(s), unless clearly not feasible to do so.” One commenter suggested deleting, “unless clearly not feasible to do so.” A few commenters suggested that the language at 226.500 (a)(2) parallel that found at 34 CFR 300.503(c)(2) which states, “provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.” The commenter stated that the proposed state rule referring to “language use pattern “ is confusing, despite the definition in section 226.75. Analysis: Language use pattern is a defined term at 226.75 and has been in use in Illinois regulations historically. Districts are required to provide notices in a language or method of communication which is designed to be understood by the parents so that they can make informed decisions. Comment: 226.500 (b) provides that the local school district must ensure that all notices to parents are written in their native language. The commenters suggested that ISBE be responsible for providing the required “Notice and Consent” forms which all districts must use in different languages. Others wrote that ISBE should also be responsible for providing other documents (such as the parents” rights booklets) in languages other than English. In addition, commenters suggested that ISBE provide documents in other formats of communication such as Braille, audio tape, large print, auxiliary aids and services, etc. Analysis: This issue is not a regulatory issue; rather it is a policy issue. The State Board may, however, direct the agency staff to provide the “Notices” in multiple languages in addition to English. The additional documents referenced by the commenter are not required to be utilized by districts in a uniform manner. Similarly, the State Board may direct the agency staff to provide the other documents in multiple languages in addition to English. 76 Notification of Parents’ Rights Comment: 226.510 (b)(5) provides notification regarding a parent‟s right to present complaints. The commenter suggests that this regulation be expanded to include not only due process complaints as required by 34 CFR 300.504 (10), but also written complaints with the Illinois State Board of Education as required by 34 CFR 300.660-662. Analysis: The commenter mistakenly believes that the proposed language at 226.510 (b)(5) addresses due process complaints, even though due process is specifically addressed later in the section at 226.510 (b)(10). To avoid any confusion regarding the intent of the word “complaint,” the proposed State regulations at 226.510 (b)(5) could be expanded to include the “opportunity of file a written compliant with the Illinois State Board of Education. (see 226.570).” Notification of District’s Proposal Comment: 226.520 provides that “ten days” before a district proposes or refuses to initiate or change the identification, evaluation, or educational placement of, or the provision of FAPE to a child, the district shall provide written notification to the parent. The commenters suggested that the federal language at 34 CFR 300.503 (a)(1) be used which requires notification be provided within “a reasonable time.” Analysis: The ten-day timeline has been in effect for many years to provide statewide consistency. The state of Illinois determined that 10 days is “reasonable” The ten day waiting period can be waived by the parent upon request to meet unusual circumstances or need(s). Comment: 226.520(b)(8) refers to the notification requirements. It states that the notification will include the purpose, time, location and who will be in attendance. The commenter suggested deleting this section since it is covered in section 226.530 (b)(1). In addition, the commenter requested the “ten day” timeline be changed to reflect the federal language at 34 CFR 300.345 which states that the district must notify the parents of a meeting “early enough” to ensure that they will have an opportunity to attend. 77 Analysis: 226.520(b)(8) provides the requirements that must be included in the general notification to all participants. Section 226.530 (b)(1) provides instruction to the district of what to do if the parent cannot participate. The ten-day timeline has been in effect for many years. The state of Illinois determined that 10 days is reasonable and can be waived by the parent upon request to meet unusual circumstances or need(s). Parents’ Participation Comment: 226.530 provides language regarding parent participation in meetings held by the school district. The commenter stated that this regulation does not indicate whether or not these requirements are applicable to students in nonpublic schools placed by their parents. Analysis: Neither federal nor state rules distinguish between the rights of parents of public and nonpublic students except as noted in 226.340 (Nonpublic Placements by Parents) and 226.350 (Services to Children in Private Schools). The requirements for serving students placed by their parents in nonpublic schools are delineated in these two areas. Comment: 226.530 (a) allows “routine communication and consultation” between school employees without parents in attendance including “preparatory activities that school personnel engage in to develop a proposal or a response to a parent‟s proposal that will be discussed at an IEP meeting.” A few commenters suggested replacing 226.530 with the language from 34 CFR 300.501(b)(1 - 2) of the federal regulations. Analysis: The proposed regulation at 226.530 mirrors the federal language suggested by the commenter. 34 CFR 300.501(b)(1) addresses parent notification, which is addressed in depth at 226.530 (b). 34 CFR 300.501(b)(2) addresses informal or unscheduled conversations involving public agency personnel and conversations not constituting a formal meeting which is addressed at 226.503 (b). 78 Consent Comment: 226.540 provides information regarding parental consent. Several commenters requested adding language from 34 CFR 300.505 (a)(3) that states, “parental consent is not required before reviewing existing data as part of an evaluation or reevaluation or administering a test or other evaluation that is administered to all children unless, before administration of that test or evaluation, consent is required of parents of all children.” Analysis: Section 5/14-8.02 in the School Code states that parental consent be obtained before any evaluation. Therefore, no distinction can be made between an evaluation and reevaluation. These rules set out a consistent strategy for determining the diagnostic measures needed to determine a student‟s eligibility. Section 5/14-8.02, in addition to the proposed definition of “case study evaluation” at 226.75, requires obtaining parental consent for both an evaluation and reevaluation. Therefore no procedures pertaining to the evaluation may begin until written parental consent is obtained. Comment: 226.540 (d) requires parental consent before conducting any reevaluation of the child. Several commenters stated that this regulation exceeds the federal requirement found at 34 CFR 300.505. The commenters suggested that the federal language be followed which allows for parental consent to be obtained for reevaluation unless the public agency can demonstrate reasonable measures taken to obtain such consent. In addition, the proposed regulation requires that if parental consent for a reevaluation is not provided, the district shall request a due process hearing within 10 days. Commenters felt that this timeframe was too restrictive. Several commenters suggested that the word “shall” request a due process hearing be changed to “may” request a due process hearing. Analysis: Section 5/14-8.02(b) in the School Code states that “Consent shall be obtained from the parent or guardian of a child before any evaluation is conducted. If consent is not given by the parent or guardian or if the parent or guardian disagrees with the findings of the evaluation, the school district may initiate an impartial due process hearing under this section.” The commenters‟ statement that the federal regulations do not require the district file for a due process hearing if the parents fail to respond is correct. However, when crafting the State regulation we must ensure compliance with Illinois law. The suggestion regarding the district‟s responsibility to file a due process request would result in a conflict between Illinois Statute and State regulations. Consequently, we are not able at this time to incorporate the suggested procedure for conducting an evaluation without parental consent. The language regarding the 10-day timeline 79 is consistent with the other notification and consent requirements. Since it is required that every student be evaluated triennially and that parents must provide written consent for each evaluation, the district‟s only option for obtaining parental consent in this circumstance is to obtain an order from a hearing officer. Comment: 226.540 (f) states that parent consent must be obtained before the district can use the parent‟s private insurance to pay for services required by a child‟s IEP. The commenter suggested that the full list of circumstances enumerated in the federal regulations at 34 CFR 300.142 should be added to the language of this rule. Analysis: Section 226.540 is a simple listing of the types of consents that are required throughout these rules. The requirements specific to each one of the consents are listed at those points in the rules that discuss the procedures the district is required to implement for each. In this case, the specifics concerning the insurance requirements are addressed at 226.770. However, a review of this rule in comparison with the requirements of 34 CFR 300.142 revealed that the following federal language should be added for further clarity: D) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures. (34 CFR 300.142(2)(iii)(D) E) Result in the family paying for services that would otherwise be covered by the public insurance program and that are required for the child outside of the time the child is in school. (34 CFR 300.142(2)(iii)(B) In researching the rules to complete the analysis for this comment, it was discovered that the language of 226.770 (a)(3) should be revised to insert the word “private” in the sentence. The current language reads that the use of any insurance to pay for services in voluntary. However, it is only voluntary for the use of the parent‟s private insurance. Surrogate Parents Comment: 226.550 (a)(1) states that “A foster parent is considered a parent for the purposes of this part, so a child residing with a foster parent does not require a surrogate parent.” A commenter stated that this rule provides a definition of parent that is different from the definition in the federal regulations. Another 80 commenter suggested adding language that states “except that a surrogate parent would be appointed by the Department of Children and Family Services if the foster parent has not received training…” Other commenters wrote in strong support of this regulation. Analysis: 34 CFR 300.20 states, “…A State may allow a foster parent to act as a parent under Part B of the Act…” Therefore, this rule does not exceed the federal regulations. The Department of Children and Family Services does not appoint surrogate parents. Rather the federal definition of “parent” includes foster parents, so foster parents automatically become the surrogate parent. Comment: 226.550 (a)(2) states that “When a child who is a ward of the State is placed in a residential facility, a representative of that facility shall submit to the State Board of Education a request for the appointment of a surrogate parent if the district has not already done so.” One commenter wrote that this regulation is not consistent with a recent memorandum distributed by ISBE and suggested retaining section one only. Other commenters suggested changing the language allowing for the school district to request the appointment of a surrogate parent but the residential facility to have the opportunity to make the request if the school district chooses not to do so in a timely manner. Another commenter wrote that some students who are incompetent of making educational decisions, have reached the age of majority, and whose parent has not declared them incompetent require a surrogate parent. One individual suggested adding language that a representative of the residential facility may not serve as a surrogate parent unless the student attends a different school. Analysis: These proposed rules are the most current interpretation available on the subject. We agree that section one should be retained as well as the rest of the section. Since the residential facility is the first placement of the child and is responsible for enrolling the student in a school district, a surrogate should be assigned at that point in the event that the services are needed. The surrogate would advocate on behalf of the student during the enrollment process. Therefore, language should be deleted from this section to further clarify this requirement. If a student, who reaches the age of majority remains under the guardianship of DCFS, a surrogate parent will continue to be appointed for that student. This is the only situation in which it would be applicable. Section 5/14- 8.02(a) of the School Code currently states that a representative of the residential facility may not serve as a surrogate parent if that student is a resident in that facility. 81 Comment: 226.550 (b)(1) explains the requirements for appointing a surrogate parent to a child. It states, “All reasonable efforts shall be made to secure a surrogate parent whose racial, linguistic, and cultural background is similar to the child‟s.” The commenter requested clarification of “reasonable efforts.” Analysis: ISBE staff make every effort to match the characteristics of the student to those of an available surrogate parent. Comment: 226.550 (g) provides that when a surrogate parent‟s appointment is terminated, the State Board of Education shall notify the surrogate parent, the local school district, and, if applicable, the residential facility. The commenter suggested adding language that includes notifying the State-approved Director. Analysis: Since the district is the entity responsible for requesting a surrogate parent and the requestor is the person who needs to be notified, it would seem unnecessary to change the language so that a removed party such as the State-Approved Director would be notified by ISBE. However, the district and special education cooperative are free to develop procedures for notifying each other if a local desire to do so exists. Mediation Comment: 226.560 provides that each school district shall inform parents that the State Board of Education offers a process of mediation. A few commenters requested language from the Federal regulation 34 CFR 300.506 (d) that discusses a meeting to encourage mediation. The section allows a district to establish procedures to require parents who elect not to use the mediation process to meet, at a time and location convenient to the parent, with a disinterested party. Analysis: We view requiring any additional procedures, other than those already stipulated in the proposed rule, as barriers to a timely resolution of the parents‟ concerns/disagreement with the district. Mediation is a voluntary process which may be requested by either the parent or the district. Parents should not be required to attend an additional meeting with a disinterested party to encourage the use of mediation. A district does have the option of mediating disagreements at the local level at any time prior to it requesting ISBE mediation services. 82 Complaints Comment: 226.570 refers to the complaint process at the State level. Commenters suggested adding language that allows for the district to give its statement and point of view of the issues prior to a decision for action being rendered. Analysis: The language that the commenter suggested is already a part of the internal agency complaint procedures under the “investigation section.” We have not addressed all of the internal complaint procedures in the rules. They are available upon request to any interested party. Comment: 226.570 (a)(3) refers to the complaint process at the State level and requires that the name(s) of the student(s) involved be provided in the written complaint. The commenter recommended this regulation be deleted since there may be situations in which a particular student may not be identified. The commenter wrote that there are times when a parent does not want to be identified as filing a complaint and there are times when it is difficult to identify a specific student when filing a systemic complaint. Analysis: 34 CFR 300.662(a) requires any complaint to be written and signed. Thus, the complainants must always be identifiable in order to inhibit angry persons from submitting superfluous complaints and tying up the complaint system. Federal and State law prohibit district retaliation against a person who files a complaint. The language at 226.570(a)(3) could be modified to respond to the comment by adding language that allows for systemic complaints to be filed without names, in accordance with current practice. 83 SUBPART G DUE PROCESS SECTION 226.600 to 226.690 Procedure for Request Comment: 226.615 explains the procedure for a parent or student making a request for a due process hearing. The commenter stated that the rule does not address the instance in which a student is unable to write and has reached the age of majority. (See also 226.110) Analysis: Federal and State regulations at various locations, including 34 CFR 300.503 and 34 CFR 300.504, stipulate that districts must provide notices to parents in a manner that the parent can understand. They also require that districts provide any necessary assistance to parents at meetings concerning their child. Neither the State or federal regulations clearly extend this assistance to parents who may have limitations, such as the inability to write, when a parent wishes to file a request required to be in writing. It, therefore, seems reasonable to develop a general requirement that districts provide an individual direct assistance, from a qualified district staff person, in reading and understanding a procedure, requirement, direction, right, and/or responsibility due to their personal limitations. Comment: 226.615 (a) explains the procedure for a parent or student making a request for a due process hearing. It states that, “If the district makes the request, it shall be sent in writing to the State Board of Education…and at the same time a copy shall be sent to the other party. The commenter requested clarification of “other party. Analysis: In the context of this rule, the parent is the other party. Comment: 226.615 (b) provides information regarding the procedures to request a due process hearing. The language specifically states that when a district receives a request for a hearing from a parent or student, the district shall do several things within five days after its receipt of the request. The commenter requested adding language that states, “When a district superintendent receives a request…the district superintendent or designee shall….” In addition, the commenter requested adding language at 226.615 (b)(1)(B) which states the date on which the request for the hearing was received by the local school district superintendent.” 84 Analysis: The introductory paragraph of the rule already addresses that the request must be made in writing to the superintendent. Comment: 226.615 (b)(2)(B) explains the procedure for a parent or student making a request for a due process hearing. It states that, “All references to parents made in the remainder of this subpart shall be understood to include both the parents and the person requesting the hearing.” The commenter suggested adding “the student” also. Analysis: The rule clearly states the parties included in any reference to the parent. 226.690 clearly delineates when a student assumes parental rights. It need not be repeated at every rule where it applies. Rights of the Parties Related to Hearings Comment: 226.625 (b) provides language regarding the rights of the parties related to due process hearings. The commenter suggested adding language that would allow not only parents to inspect and review all school records but also the student who has reached the age of majority. Analysis: 226.690 clearly delineates when a student assumes parental rights. It need not be repeated at every rule where it applies. Comment: 226.625 (g) requires that the district be responsible for securing an interpreter if one is needed during the course of a due process hearing and providing for the expense. The commenter suggests that the line “Such interpreter shall be provided at the school district‟s expense” be stricken, as it is not required by the federal regulations. Analysis: While the federal rules do not specifically address the issue of who is responsible for paying for the interpreter services during the course of the hearing, it has always been administered as, and should continue to be, the responsibility of the district to provide and pay for this service. The district should be fully aware of the needs of the family, specifically the need for interpreter services. These same services should have been provided to the family during IEP meetings and other such meetings between the family and school representatives which are clearly required at 34 CFR 300.345. 85 Comment: 226.625 (j) provides language regarding the rights of the parties related to due process hearings. It states, “The hearing shall be closed to the public unless the parents of the child specifically request that it be open…..The hearing officer shall advise the parents of their right….” The commenter suggested adding language that would include the student who has reached the age of majority in both sentences. Analysis: 226.690 clearly delineates when a student assumes parental rights. It need not be repeated at every rule where it applies. Child’s Status During Due Process Hearing Comment: 226.650 provides language regarding the child‟s status during a due process hearing. The commenter wrote that this whole section needed to be rewritten to include language that the student who has reached the age of majority is afforded the same rights as the parents. Analysis: 226.690 clearly delineates when a student assumes parental rights. It need not be repeated at every rule where it applies. Expedited Due Process Hearing Comment: 226.655(b) provides language regarding an expedited due process hearing and states that “During the pendency of an expedited hearing, the child‟s placement shall be determined by the IEP team.” The commenter wrote that this rule does not apply in every situation. For example, if the parent disagrees with the placement determination made by the IEP team during the pendency of an expedited due process hearing for “dangerous behavior”, the “stay put” placement is the one ordered by the hearing officer or the last agreed upon and implemented placement. Analysis: 226.650(a) states the procedure to follow except when an expedited due process hearing is requested. 226.655 only applies to requests for an expedited due process hearing, as stated in the proposed rule. 86 Comment: 226.655 (c) specifies the ruling to be made by the hearing officer in an expedited hearing. The commenter suggested that the language at 226.655 (c) require that the findings of the hearing officer be tied to the reasons for the hearing and made more specific. Analysis: The hearing officer must determine at least those items listed in the rule but may make additional determinations as he or she deems appropriate. When reviewed, the examples of decisions the commenter suggested to be incorporated resolve into the two determinations listed at 226.655 (c). Comment: 226.655 (d) sets forth the requirements of an interim alternative educational setting. One commenter suggested that the language found at 226.655 (b)(4) be revised striking the word “full” and inserting the language as found at 34 CFR 300.522. Another commenter suggested that this part of the regulations be moved to the discipline section in Subpart E. Analysis: 34 CFR 300.522 requires that any alternative educational setting the child would be placed in to enable the child to continue to progress in the general curriculum and to continue to receive those services and modifications, including those described in the child‟s current IEP, that will enable the child to meet the goals set out in that IEP. The proposed rule uses the term “full” to replace this language. In addition, 34 CFR 300.522 requires that any alternative educational setting in which the child would be placed must include any additional modifications and services designed to prevent the undesired behavior from recurring. We agree to add language at 226.400 (f) that requires the additional services and modifications to address the student‟s behavior. Comment: 226.655 (e) provides language regarding expedited due process hearings. It states that “If all conditions set forth in the subsection (d) are met, the hearing officer shall order a change in the child‟s placement to an appropriate interim alternative educational setting for not more than 45 days.” The commenter requested clarification of “45 days” wanting to know if it was specific to 45 consecutive school days, 45 days out of the school year, or 45 days per incident. Analysis: The definition of the term day at 226.75 stipulates that a day is a calendar day unless otherwise indicated. This is the same definition of the term day in the federal regulations at 34 CFR 300.9. Since 226.655 (e) uses the term “day” and makes no other indication that it means “business day” or “school day” it would be considered a “calendar day.” 87 Record of Proceeding Comment: 226.665 explains that the hearing officer will ensure that an electronic verbatim record of the hearing is made in the format of the parent‟s choice. The commenter suggested adding language that includes a student who has reached the age of majority. Analysis: 226.690 clearly delineates when a student assumes parental rights. It need not be repeated at every rule where it applies. Decision of Hearing Officer; Clarification Comment: 226.670 (c) requires the written decision of the hearing officer be binding unless a party aggrieved by the decision commences a civil action. The commenter suggested adding a sentence to the end that states, “During the appeal the hearing officer‟s placement decision shall serve as the child‟s placement.” Analysis: Section 14-8.02(a)(j) in the School Code stipulates that the following is binding unless the parents and the district agree otherwise. During the pendency of any civil action the student remains in his or her “present” educational placement and continues to receive special education and related services. The statute does not define the term “present” leaving it open to interpretation of whether the term means the hearing officer‟s determination or the conditions which applied to the student prior to the hearing. 34 CFR 300.514 (c) states that the stayed placement will be the one desired by the parent if the hearing officer agrees with the parents. Clarification is necessary. Transfer of Parental Rights Comment: 226.690 provides information regarding the transfer of parental rights to a student at the age of 18. The commenter wrote that there are times when a student is not able to cognitively make informed decisions and the parents do not always get their child declared incompetent. The commenter felt that the failure of this rule to address this type of problem has a significant negative impact. One commenter suggested adding language from 34 CFR 300.517(3)(b). Another suggested adding language from the Statute regarding incompetency. 88 Analysis: The federal rule at 34 CFR 300.517(3)(b) allows this determination to be made by each state. No Illinois statute provides for ISBE rules to override the Emancipation of Mature Minors Act (750 ILCS 30) as requested by the commenter. Therefore, ISBE rules must remain silent on this situation. Concerned districts could support legislation to bring about change as suggested by the commenter. 89 SUBPART H ADMINISTRATIVE REQUIREMENTS SECTION 226.700 to 226.770 General Comment: 226.700 (d)(4)(B) requires an explanation that qualified personnel be employed in sufficient numbers to provide supervisory services. The commenter stated that supervisory services are not necessary in small programs. Analysis: The regulation allows districts to act independently or in cooperation with other districts to provide supervision to staff to address the needs of even those programs with small numbers of personnel. Policies and Procedures Comment: 226.710 (b) states that, “Each set of policies and procedures shall address the district‟s compliance with at least the requirements for:…….” The commenter suggested adding language regarding nondiscriminatory procedures, linguistically and culturally appropriate, cultural and linguistic backgrounds, and student with low-English proficiency to the various subsections. Analysis: The suggested language is already addressed in 226.140 and 226.150 which requires it to be a part of the district‟s policies and procedures. It is not necessary to insert this particular language in 226.710 (b). Facilities and Classes Comment: 226.720 (a) explains that facilities used for special education services shall be appropriate to the specific programs or services. In addition, the language says, “Such facilities shall be “at least” comparable to those provided to the students in the general education environment.” The commenter suggested removing the language “at least” from the sentence. 90 Analysis: The rule, as written, allows for districts to enhance facilities used for special education services such that they are more than merely comparable to those provided to the students in the general education environment. Districts are accountable only for creating facilities which are comparable. Comment: 226.720(b) addresses age range requirements and states, “The age range of students within a special education grouping shall not exceed four years at the elementary level and six years at the secondary level. Early childhood classes and services shall serve only children from three through five years of age.” One commenter suggested replacing the word “only” in the second sentence with the word “generally” to include students who turn six during a school year. Commenters objected to the large age range for both elementary and secondary levels. The commenters questioned whether or not the limitations apply only to children in separate classes and requested language that would include students in the regular education setting as well. Many commenters stated that there is no credible educational rationale for allowing an age range of six years at the secondary level since this would affect the provision of services to children. Others wrote that to allow a fourteen-year-old to be placed with twenty-year-olds would be a “dangerous combination.” One commenter wrote that the age range should be limited to four years at the high school level. Others recommended changing the age range from four years at the elementary level and six years at the secondary level to three years for both levels. Analysis: By replacing “only” with “generally” the regulation would inappropriately imply that students who turn six during the first week of a school year and students younger than three may be placed in early childhood programs. The state rules have historically allowed for a six-year age range at the secondary level. To change to another range as the commenter suggests would require a study of the potential affects of such a change before one could be recommended. The rule on age range would not apply in the regular education environment. Case Load/Class Size Comment: 226.730 is the area that establishes case load and class size for special education students. The commenter (Chicago court monitor) suggested that a review of the “level of services” versus the “ratio of teacher to student” be addressed (time and availability of staff). The measurement unit for these students who are served inside regular classrooms may not necessarily be simply a pupil head count, but could also include service time. 91 In addition, the commenter suggested that the language include a definition for “regular education environment.” Since there is no operational definition of a regular classroom, it may be difficult to determine if a child is actually placed in one. The suggested definition is, “A regular classroom is composed of students in which a majority are without identified disabilities, it teaches the general curriculum, and it is not a designated remedial classroom.” Lastly, it was suggested that “consultative services” be defined or explained. The commenter felt that there is a problem since there is a perception of no limit on the number of additional students which may be placed on a special education teacher‟s case load if the students are receiving consultative services. One commenter wrote of their agreement with the court monitor‟s suggestions. However, the following language was recommended as a definition of regular classroom, “A regular classroom is composed of students in which at least 70% are without identified disabilities, it teaches the general curriculum, and it is not a designated remedial classroom. Another commenter recommended language that the regular education classroom have no more than 30% children with disabilities. Analysis: It appears that some guidance would be helpful to address the issue of “level of services” versus the “ratio of teacher to student” (time and availability of staff). The commenter is correct in suggesting that some districts put more emphasis on the maximum class size limits expressed in the regulations and fail to consider the other required aspects (age of the students, nature and severity of their disability, and the degree of intervention necessary which would include consultative services). All of these factors are required considerations in order to determine a proper caseload/class size for a service provider. These considerations must be made on a student-by-student basis in light of each child‟s IEP in order to determine if the service provider can appropriately implement all the student‟s IEPs assigned to their caseload. It appears that some guidance would be helpful to address the issue of when the number and types of services provided in the regular education environment alter this environment so that it is no longer a regular education environment. We agree with the commenter that it might be helpful for districts if we developed language defining a regular education environment. The agency has always considered consultative services as part of any service provider‟s caseload. However, there appears to be confusion regarding this type of service and how it is incorporated into the case load/class size requirements. 92 Comment: 226.730 provides the criteria for case load/class size for each disability category. One commenter stated that it is ridiculous to use “headcount” for class size determination and that “full time equivalency” based upon IEP minutes could be used to determine actual case loads. In addition, the commenter recommended that teaching loads not exceed a mean of eight students per teaching period. Another commenter felt that we should use a “severity rating scale.” One commenter stated that this rule is contradictory since special education is so individualized and yet the regulations require a maximum class size. Several commenters wrote that caseloads as required in the regulations are not manageable. Other commenters wrote specifically about the caseload of 12 students for the mentally impaired and stated that this is too many students for a teacher to provide the individualized instruction that is needed. In addition, it is discriminatory to permit larger class sizes for these students than for students with less severe disabilities. Several commenters wrote that the class size for students with mild to moderate disabilities should be limited to 10 students. Anything above that number hinders staff‟s ability to meet the individual needs of the students. Others wrote that this type of class should be limited to eight students. Others commented that there is no effective way to engage 13 students with Autism in a meaningful way. In addition, another commenter wrote that the class size for students with emotional disturbances should be lowered since it is an impossible task to instruct and manage behavior of students with thirteen in the class – safety is an issue. It was suggested that class sizes return to eight with ten being the maximum so that instruction could take priority and safety could be maintained. Many commenters wrote that overloading “resource rooms” with twenty students will never meet the needs of the students and the number should be lowered. Several commenters suggested clarification for the maximum class size/caseload for resource students when an aide is present since the proposed language addresses this issue for an instructional class or service, but not for a resource class or service. Another commented that class size should be decreased because students who are in a regular education classroom with supports from the special education teacher consume hours of time. Another commenter suggested adding caseload limits for related service professionals including school psychologist, school social workers, occupational therapist, physical therapist, etc. 93 Analysis: In order to make changes of this nature, an extensive study would need to be conducted to determine what changes if any would be appropriate. In addition, we agree to add language to 226.730 (b) that would address the issue of class size/caseload for resource students when an aide is present. Comment: 226.730 provides the criteria for case load/class size for each disability category. The commenter wrote that 23 Illinois Administrative Code 228.40 (Bilingual regulations) require that the student-teacher ratio in bilingual classes not exceed 90% of the average in general education classrooms. The following language was suggested, “The student-teacher ratio in classes which serve LEP students with disabilities and are staffed with a qualified bilingual specialist, shall not exceed 90% of the average student teacher ratio in monolingual special education programs.” Analysis: The special education class size requirements are already significantly lower than general education classes. In almost all cases this difference is greater than the 10% called for in the Bilingual rules. Adoption of this suggestion could also add to the shortage of bilingual special education teachers by requiring districts to increase the number of classrooms provided due to the lower numbers in each class. Comment: 226.730 (a) – provides a description of “instructional” caseload/class size requirements. The commenter suggested changing the language in determining what constitutes an instructional and resource class or service from “school day” to “academic day.” Analysis: The term “academic day” could be construed too narrowly which would incorrectly exclude instruction provided during times not ordinarily considered as “academic” such as lunch or recess. An example of when instruction occurs outside “academic” portions of the day would be when an IEP requires instruction in social skills or daily living skills during lunchtime activities. Comment: 226.730(a)(2) refers to case load/class size for children whose disability is either severe/profound in degree or “multiple in nature”. One commenter suggested clarification of “multiple in nature” and wanted it to be specific to students with severe and profound disabilities. Another commenter requested clarification of how to determine students labeled “severe/profound”. Analysis: 94 “Multiple in nature” is a more ambiguous term than the proposed regulations definition of “multiple disability” at 226.75. Therefore clarification is needed. Additionally, it is the district‟s responsibility to determine eligibility criteria for all disability categories as specified in the proposed regulations at 226.160 including severe/profound. Therefore, by this regulation, each district will have some discretion to define these terms locally. Comment: 226.730(a)(4) uses the term “exceptional characteristics.” The commenter stated that this term is not used anywhere else in the regulations and suggested using either “specific conditions” or “areas of disability.” Analysis: We agree that the term should be revised. Comment: 226.730 (a)(6) refers to the enrollment for instructional classes or services for children whose primary disability is mild/moderate mental impairment. It delineates an enrollment for services at the primary, intermediate, middle, junior high, and secondary levels. The commenter wrote that it is unclear as to whether or not third grade is considered primary or intermediate and whether sixth grade is considered intermediate or junior high. Analysis: The rule allows some flexibility at the district level that a specific regulation would not allow. The districts themselves determine what grades are considered primary, intermediate, or junior high in their district. Comment: 226.730 (b)(2) requires a teacher or service provider to participate in determining the appropriate enrollment of a resource class or service. The commenter questioned why this regulation was carried over from our current regulations. Analysis: The service provider is the most appropriate person to determine the individual needs and demands of the students currently being served and the impact of the needs of a prospective “new” student to the class or service. Records; Confidentiality Comment: 226.740 (g) refers to confidentiality of records and states that the portion of each district‟s policies and procedures referred to in the section be consistent with 95 several other statutes such as the Illinois School Student Records Act. The commenter requested adding FERPA to the list. Analysis: We agree with the recommendation. Additional Services Comment: 226.750 specifies additional services (assistive technology, behavioral intervention, ESY, physical education, transportation, and vocational education) that must be addressed on IEPs when required for students to receive FAPE. The commenter suggested that the provisions contained in this section should be included in 226.310 (Related Services) under the appropriate title. The commenter wrote that “as placed here they add services to a district, are treated as though they are not part of all IEP decisions and add detail to areas that should be determined by the IEP team.” Analysis: Not all of the areas included in 226.750 are related services, but all are required by federal or state statutes to be included in IEPs when needed. This section pertains to the administrative responsibilities and duties of districts to provide these services. Comment: 226.750 (c) regarding extended school year services should include criteria for determining which students require an extended school year. One commenter suggested that the State establish criteria for extended school year. Another commenter wrote that the school district should have the right to determine the extent, duration, and type of extended school year services and requested clarification of regression/recoupment. Another individual suggested deleting this section, using the language from 34 CFR 300.309 (a), and adding a definition of extended school year from 34 CFR 300.309 (b) to the proposed definitions at 226.75. Analysis: The language suggested by the commenter for the State to establish criteria goes beyond the federal regulations. However, if this presents a problem for districts, language could be added that would require districts to include extended school year service criteria in their policies and procedures which are submitted to this agency for approval. The language in the proposed regulations is clear that the need for extended school year services must be determined on a student by student basis. This would be done by utilizing the district-established criteria including regression/recoupment. 96 34 CFR 300.309 (a) states, “ Each public agency shall ensure that extended school year services are available as necessary to provide FAPE consistent with paragraph (a)(2) of this section. Extended school year services must be provided only if a child‟s IEP team determines, on an individual basis in accordance with 34 CFR 300.340 - 300.350 that the services are necessary for the provision of FAPE to the child. In implementing the requirements of this section, a public agency may not - limit extended school year services to particular categories of disability; or unilaterally limit the type, amount, or duration of those services.” All IEP decisions must be determined by the IEP team on an individual basis in order to provide FAPE. These areas are covered in sections, 226.220 and 226.230, which address the development and content of IEPs. Section 226.230(a)(9) specifically requiring that an IEP include, “A statement as to whether the child requires the provision of services beyond the district‟s normal school year in order to receive FAPE (extended school year services).” ESY is only referenced in sections 226.750(c) and 226.230(a)(9), neither of which requires a separate definition for the reader to understand ESY. Comment: 226.750 (e) provides that each child who is eligible for special education and related services shall be eligible for special transportation. The commenter stated that this language sounds as if all special education students would automatically get special transportation whether or not it was needed. Commenters requested clarification of this language. Analysis: The intent of the language was to ensure that each eligible child be considered for special transportation. Language will be added to clarify and address the commenter‟s concern. Comment: 226.750 (e)(2) states that a child‟s daily travel time shall not ordinarily exceed one hour each way except as made necessary by temporary road or weather condition. One commenter suggested deleting this section entirely or at least removing “ordinarily” and leaving the decision of transportation up to the IEP team. Other commenters suggested maintaining the language in the current regulations at 226.940 which states, “Every effort should be made to limit the total travel time to no more than one hour.” Analysis: The IEP team does determine a placement and is supposed to consider any adverse affects as the commenter suggested, including the need for transportation. However, since the length of the transportation route and other transportation arrangements are often left up to other individuals or a contractual 97 bus company, parameters need to be established in the regulations regarding the length of the bus ride. Comment: 226.750 (e)(6) states that, “When a district has placed students in a State- operated or nonpublic day program, the district shall provide transportation for the children in that program. Other services may be provided as agreed upon by the district and facility.” The commenter suggested deleting the last sentence. Analysis: The language in the proposed regulation does not bind a district to provide additional services unless it believes it is appropriate to do so. The rule allows that additional services must be agreed on by the district and the facility. On the other hand, any other educational services the student requires must be identified through the IEP process and the commenter‟s suggestion would help ensure this is understood by all parties. Comment: 226.750 (e)(7) provides language regarding the district‟s transportation responsibility when the district places a child in a residential facility. The commenter stated that the language is confusing as written and suggested clarifying language and reordering 226.750 (e)(7)(A-F). Analysis: Section 14-7.02 in the School Code requires ISBE to promulgate regulations governing transportation when the district places a child in a residential facility. The proposed regulation is essentially the same regulation we developed in response to Section 14-7.02 in the School Code and have administered historically. Districts have not encountered difficulty complying with this rule in the past. The order of the subsections has been changed in the proposed regulations from the current regulations to reflect a more normal flow for the reader. Comment: 226.750 (f) pertains to students receiving vocational education in accordance with IEPs. The commenter suggested deleting the term “vocational plan” from 226.750 (f)(1 & 3) and replacing it with IEP. Analysis: 226.750 (f) states “Students eligible pursuant to this Part shall receive vocational education in accordance with their individual IEPs.” We are awaiting further clarification from the vocational education division. Comment: 226.750 (f)(2) provides that “No student shall spend more than one-half of the established school day participating in community work experiences or in local 98 rehabilitation facilities.” One commenter stated that students should have the option of participating in a work experience for a “full day” and requested the language reflect this option. Another commenter requested language to address how work experience and rehabilitation counts in determining “percentage of time and caseload/class size” in section 226.730. Analysis: Other than defining “transition services” to include vocational training, community participation, etc., 20 USCA 1401 (30) gives no guidance as to the amount of time these services may require. The only caveat is that such services be “based upon the individual student‟s needs, taking into account the students preferences and interests” 1401 (30)(B). 20 USCA 1414(d) 1(A)(vii) states that a statements of the transition services needs of the child must be included in the IEP. Both 34 CRF 300.305 and 300.306 require that disabled children be afforded an equal opportunity to participate in the variety of educational programs and services, including nonacademic and extracurricular ones. Participation in such activities by disabled children should be guided by general principles governing participation by nondisabled children and applicable child labor laws. Also, 105 ILC 5/14-8.03 merely directs the school district (i.e., the IEP members) to develop, as needed, transition goals, supports, and services, including vocational training and community living experiences. Therefore, the IEP team should make the decision of how much time is spent in these activities. The IEP team members should be mindful of the IDEA‟s emphasis on access to the general curriculum. Evaluation of Special Education Comment: 226.760 addresses the various means the State Board of Education uses to evaluate and ensure that the local school district special education programs and services are in compliance with the requirements of these regulations. The commenter stated that these regulations should specifically state the sequential action(s) this agency will take when a school district fails to correct the issues of noncompliance. It is recommended that this language include the specific steps or methods, sequence and frequency for a district that has failed to comply or respond to corrective action required by this agency. Analysis: The items that the commenter suggested is included in ISBE‟s “Monitoring Procedures Manual” which is approved by the Office of Special Education Programs. It is appropriate to leave this type of information in the administrative manual as opposed to adding the language in the proposed State regulations. 99 Comment: 226.760 (a) addresses evaluation of special education by the SEA and states, in part, “Official representative of the State Board shall be authorized to examine all documentation, including student records, which would facilitate such determination.” The commenter suggested that the regulation should include “peer evaluation.” Analysis: 226.760 (a) specifies that it is the responsibility of the SEA to evaluate special education services provided by cooperatives/districts and in doing so, official representatives of the SEA may examine all documentation, including student records. ISBE has multiple functions for monitoring special education compliance (e.g. complaint investigations, due process, compliance reviews). ISBE has used and will continue to utilize “peer monitors” on Comprehensive Compliance Reviews of cooperatives/districts. The use of peer monitors is part of the ISBE monitoring system, which has been submitted and approved by OSEP. Comment: 226.760 (c)(1) states that “Evaluation of special education services shall be used on all of the following elements…Comprehensive Plan…which shall be revised at least triennially.” The commenter wrote that a comprehensive plan provides the basic structure for the operation of an organization and change should only occur when there is a need to make a revision. The suggested language provided is, “A comprehensive plan be developed when a new joint agreement is established; a district detaches from a joint agreement; when the district or joint agreement determines the need for revision; or when the joint agreement dissolves.” Analysis: The rule at 226.760 (c)(1) also stipulates that a comprehensive plan needs to be a current document being revised at least triennially. The circumstances suggested by the commenter would often far exceed the triennial revision expectation turning the comprehensive plan into a potentially antiquated document. Fiscal Provisions Comment: 226.770 provides language regarding fiscal provisions. One commenter wrote that the regulations require an annual reporting of its expenditures. However, they should be carefully reviewed in light of Section 14-7.04 in the School Code that addresses these funds. Another commenter wrote that the proposed language is not consistent with the correspondence received from ISBE which 100 consistently has stated that these funds may be used both to supplement services for children with disabilities and services for children who are “at risk” and thus further limits current practice. Analysis: The rule generally comports with Section 5/14-7.04 that addresses health care reimbursement. No change is needed. Comment: 226.770 (a)(2) provides language regarding fiscal provisions. The regulation states, “…Notice to affected parents is required if the district has reason to know some students may be eligible for Medicaid or the KidCare program…” The commenters suggested deleting the language, “Notice to affected parents is required.” Analysis: School districts must notify parents that the district intends to bill Medicaid or KidCare for the covered services the child is receiving. As part of Medicaid administrative claiming, school districts are expected to refer parents/students to the Illinois Department of Human Services (Medicaid) if they suspect the child may be eligible. This is one of the activities for which the school district receives Medicaid administrative dollars. We agree that clarifying language is needed. Comment: 226.770 (c) requires school districts and cooperative entities to use federal matching funds received under Medicaid or the KidCare program only to supplement special education programs and services. In addition, the regulation states, “Each school district or cooperative entity shall submit an annual record of its expenditures of these funds on a form supplied by the State Board of Education.” A few commenters suggested revising the language to read, “Medicaid Fee for Service” instead of “Medicaid.” The commenters also suggested deleting the sentence that each school district or cooperative submit an annual record of its expenditures. Analysis: All Medicaid dollars recouped are to be used as supplemental funds for special education. The purpose of the Medicaid program is and has always been to provide funds for special education. This would only change if special education became fully funded and need for the dollars diminished. Each school district must prepare annually a record of disbursement/expenditures (Form ISBE 37- 22). This is part of the monitoring/auditing process of the Medicaid program. School district must be accountable for their use of the Medicaid dollars. 101 Comment: 226.770 (e)(1) provides language on the eligibility of students for funding under Section 14-7.03 of the School Code. The commenter wrote that this section is confusing and that it does not cover all situations where students would be eligible for 14-7.03 funding. Analysis: The commenter is correct in that all of the situations described in Section 5/14- 7.03 of the School Code are not specifically included in the rules. They should be included to ensure clarity. 102 SUBPART I PERSONNEL SECTION 226.800 to 226.840 Personnel Required to be Qualified Comment: 226.800 (Subpart I) refers to the “Personnel” section. The commenters wrote that this section of the rules is in conflict with the recertification structure that is to take effect in the year 2000. One commenter wrote that this regulation needs to establish certification requirements for teachers of autistic, health impaired and traumatic brain injured students. These are disability categories that continue to grow but currently have no establish credential or training requirements for personnel serving students with these disabilities. The commenter elaborates on the requirements for teachers of health impaired students in relation to the definition of this disability category at 34 CFR 300.7, which states that “. . . student‟s having problems with alertness and strength which may be due to health problems such as asthma, attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD), diabetes, epilepsy, etc. Since this category includes ADD/ADHD students who are being identified at an increasing rate, it is essential that the needs of this population be addressed…” by appropriately trained and qualified personnel. The commenter expressed concern that “these students differ from the typical health related students in that these students frequently have medical, behavior, emotional and learning problems that are related to their disability. This individual also pointed out that this disability category is widely discrepant through out the state due to both to the broad types of health impaired disabilities and the failure to establish statewide eligibility criteria. However, the ADD/ADHD disability is one that evidences specific problems related to cognitive processing, attending behavior, organization skills, impulse control, etc. of the student which require the teacher to have specialized training to serve these students. Several commenters commended the Illinois State Board of Education for continuing to require certification by disability categories at 226.800. Analysis: Section 226.800 provides the current practices regarding “personnel use and approval” and needs to be included in these rules. When the certification rules are released, we will revisit this particular section to update and make any necessary changes. Comment: 226.800 (a)(1) pertains to employment of sufficient staff to provide special education and related services. A few commenters suggested deleting the last sentence, which states, “The number and types of personnel employed shall be based on students‟ need rather than administrative convenience.” Another 103 commenter questioned whether this regulation could be interpreted to mean that school districts or cooperatives are required to employ personnel who can operate therapeutic day schools/residential facilities, etc. Analysis: The requirements at 226.800 (a)(1) complies with the personnel standards found at 34 CFR 300.136 and 300.381 – adequate supply of qualified personnel. This requirement in no way requires local school districts or cooperatives to operate therapeutic day schools/residential facilities needlessly. The district always maintains its right to place students in state-operated or nonpublic programs as set forth in 34 CFR 300.551 and proposed Illinois rule at 226.300 – continuum of placement options – when appropriate. However, the school district can not restrict or limit the implementation of the student‟s IEP to types of programs already available in the district. This may result in the district creating additional programmatic options such as a therapeutic day school. Comment: 226.800 (c)(3)(B) & (D) discusses prevocational activities. Several commenters suggested that certain terminology used in this section such as mentally “retarded” should be updated to more politically correct terminology. One commenter stated that some of the coursework as listed in the regulation is outdated, specifically characteristics for the mental retarded and social/emotionally maladjusted. Analysis: The language in this section and other sections were taken from previous language. We agree that the terms throughout the document must be updated and consistent when referring to individuals with disabilities. There is a need for consideration of the type of course work required. Comment: 226.800 (d) refers to an individual assigned as a “teacher coordinator” having completed a course in vocational programming, etc. The commenter stated that this section appears to relate to a vocational coordinator and the term, “teacher coordinator” should be changed to “vocational coordinator”. Analysis: Await a response from the Legal Department. Comment: 226.800 (g & i) provides the requirements for directors and assistant directors of special education and the chief administrator of a special school. The commenter stated that since there is only one endorsement called, “Special Education Administrator” the language should reflect this. In addition, the commenter suggested updating the course work required for this certificate. Another commenter stated that an “administrative certificate” should be applied 104 to all administrative positions. Another individual wrote that the proposed language would not allow those related service personnel who hold a Type 75 certificate (e.g. school social worker) from serving as principals of special education “schools.” Analysis: Section 5/21-7.1 (a) in the School Code states, in part, that the administrative certificate valid for supervising and administrating in the public schools is issued to persons graduating from recognized institutions whose programs have been approved by the Illinois State Board of Education. The course work for this certificate focuses on general education administration. The requirements at 226.800 (g) are designed to ensure that a Director or Assistant Director of special education have additional course work in the field of special education in order to understand the programming needs and requirements of this population. The specific course requirements may need to be reevaluated to meet the change in provision of services. The “Chief Administrator of Special School” approval requires a regular education administrator to have course work in at least one of the disability areas served by the “special education school.” This enables a person only trained in regular education to understand the program needs and requirements of these special education students. There is need for consideration of the type of course work required. Comment: 226.800 (h) provides the requirements for a supervisor. One commenter stated that this position is obsolete. Another commenter asserted that the proposed regulations have increased the requirements at 226.800 (h) from the current regulations for a person to be a supervisor. The commenter urges us to relax the “new” requirements because of already limited response to his filling vacancies with qualified applicants. Analysis: This rule pertains to the provision of supervision in providing technical assistance for a specific discipline or program area. This requires the supervisor to have certification and knowledge in that discipline or program area. Technical assistance supervision is distinct from general administrative supervision, which is of a personnel nature versus programmatic assistance to the special education teacher. A general education certified supervisor does not have the programmatic training to provide this type of supervision. We have a long standing technical assistance document that explains the differences between technical and administrative supervision. Comment: 226.800 (k) specifies the requirements for “noncertified personnel” which would include program assistants. In summary, it requires that noncertified personnel “...function under the direct supervision of a professional staff member” and be provided “. . .with training experiences appropriate to the nature of their 105 responsibilities. Such training shall be in lieu of the requirements for noncertified personnel set forth in 23 Ill. Adm. Code 1, Subpart G.” The commenter suggested that the rules need to specifically identify the position of “program aides/assistants” and address the training requirements since that is the only preparation imposed by the regulations for an individual in this position. In addition, the commenter suggested adding language that would state that “proper/specific training must be provided prior to the onset of the beginning of the school year. The only exceptions should be for those newly enrolled students or services that may be initiated during the school year. In such cases the training should be provided within 4 weeks of the date that the service is placed in the child‟s IEP.” Analysis: The proposed language is written using broad terminology in order to include all types of noncertified positions, including program aides/assistants. Incorporating language that identifies the position of a “program aide/assistant” and the specific requirements for an individual to serve in that position will be considered. Comment: 226.800(k)(1) provides that each noncertified individual employed in a special education class, program, or service function be under the direct supervision of a professional staff member. One commenter stated his disagreement about the ability of a paraprofessional being able to work in the absence of a certified person, specifically job coaches and aides, and questioned whether or not this was addressed. Analysis: Await a response from the Legal Department. Special Education Teaching Approval Comment: 226.810 provides information on special education teaching approval. One commenter wrote that this system has no built-in monitoring system and suggested that the approval process be time specific and lead to the mandatory certification of the approved applicant. Another commenter wrote that the language should be adjusted to allow for more local options and flexibility due to the personnel shortages. Analysis: The issue of monitoring should be addressed as a certification issue and should not be addressed in these rules. We currently have an approval process for other necessary professionals which addresses these types of circumstances as found in the proposed regulations at 226.820. 106 Comment: 226.810 (d) provides language regarding early childhood special education approval. The commenter suggested adding rules for cross-categorical approvals in this section. Analysis: The commenter references early childhood special education approvals which are non-categorical, but his comments discuss cross-categorical approvals. The personnel approval process does not issue any certification or approval to serve cross-categorical students. Cross-categorical programs exist in schools to service students with differing disabilities but similar needs in the same classroom. There is no specified credential for that program. This agency has addressed this situation under the “Instructions for Special Education Personnel Approval” document. Authorization for Assignment Comment: 226.820 provides information regarding a recourse that is available for districts to provide services when no fully qualified individual is available. The commenter stated that allowing unqualified individuals to provide special education services is a concern and that there needs to be an effort to ensure that qualified individuals are available. Analysis: We concur with the commenter. To that end, 226.820(a) clearly states that the application of this section is potentially available only when a school district can effectively demonstrate to ISBE that it is unable to secure the services of the properly credentialed provider. The rule states the numerous types of evidence that the district must provide to ISBE in order for ISBE to determine if the use of a less than qualified individual is allowable. List of Independent Evaluators Comment: 226.830 (a) provides language for the list of independent evaluators. One commenter suggested adding language that states the independent evaluators are professionally competent in the languages required for the performance of the various evaluation components. Another commenter suggested adding language that would state the list is available to districts and parents. Analysis: 107 The competency level of the individuals listed in the independent educational evaluation registry is only a self-referred list based upon individuals holding the appropriate credential for the evaluation specified. This agency verifies only the credentials and not the competency levels. We agree to add clarifying language that the list is available to districts and parents. Comment: 226.830 (b) provides language for the qualifications of the evaluators listed in the registry. The commenter suggested adding language as an additional criteria, “language(s) other than English that can be used for evaluation.” Analysis: It appears that the commenter desires the registry to identify each evaluator‟s language proficiency other than English. We agree to add further language that allows persons applying to the registry to include the identification of the evaluator‟s language proficiency. Qualifications of Evaluators Comments: 226.840 provides the qualifications of evaluators. A few commenters requested the section be reorganized based upon the new domain assessment. A chart was provided to review. One commenter requested a description of the person who would complete the vocational evaluation. Another commenter suggested deleting the qualifications for “Clinical Psychological, Neurological Evaluation, and Psychiatric Evaluation” or adding the language, “Current license and/or registration issued by the applicable Illinois credentialing authority pursuant to the appropriate Illinois statute.” A few commenters suggested changing the title of “Medical Review” to “Health” because this type of assessment includes a review of medical information in addition to utilizing other information. According to the commenters, the term, “health, “ more accurately defines the complexity of the evaluation. Several commenters wrote that they strongly support the language included in this section. Analysis: The proposed regulation identifies some of the people who can do selected assessments which may fall under one or more of the domains. Simply listing the domains would be too limited. This list was also developed as part of the independent educational evaluation. By presenting the information in this format, it assists in understanding the types of evaluations that may be obtained which would be applicable to one or more of the domains. The request for the qualifications of the person to complete the vocational assessment is an area that must be addressed with the vocational education division and will be completed prior to recommendation. 108 The three qualifications listed by the commenter are the three most commonly requested independent evaluations and we feel that these areas need to be clarified in the rules. The suggestion of putting “Current license and/or registration issued by the applicable Illinois credentialing authority pursuant to the appropriate Illinois statute” would not address all types of evaluations, but would refer to only a selected few.” The list is not meant to be all-inclusive. The terminology, “medical,” is broader and covers current health status, as well as, a review of medical records and current treatments. Comment: 226.840 provides the qualification of the individual who is allowed to complete the “hearing screening.” The commenter suggested including the speech and language therapists as qualified to do the hearing evaluations. Analysis: These individuals are required to have coursework and practicum experience in diagnosing and treating auditory disorders that surpasses the public health training. Therefore, we agree that they should be added as qualified evaluators for case study evaluations only. The same holds true for educational audiologists. ADDITIONAL COMMENTS THAT DO NOT RELATE TO A SPECIFIC CITATION Comment: Some comments were directed at a previous version of the proposed regulations. Analysis: The information commented about was deleted prior to the Board‟s release of these official proposed regulations. Comment: One commenter recommended that the regulations provide language regarding the Illinois State Board of Education‟s responsibilities for monitoring and enforcement of IDEA97. A few commented that the rules do not include a description of the actions to be taken when a school district is found to be in violation of the rules. The commenters felt that school personnel should be terminated from employment, have their certificates suspended, and be prohibited from association with programs for students with disabilities if they knowingly violated the regulations. Analysis: These types of sanctions are not appropriate to these regulations. 109 Comment: One commenter requested other funds be provided to deal with the expense of special education students. Analysis: The regulations do not address funding in such a direct manner. Comment: One commenter wrote that, at times, all caps are used in sections of the regulations and suggested that the use of all caps be eliminated. Analysis: We can not do as the commenter suggests because of specific requirements set forth in the Administrative Procedures Act regarding rule making. Comment: One commenter expressed concern that the proposed rules were not an improvement over the current regulations but did not provide specific citations or specific suggestion on how to clarify language. Analysis: We were unsure what the commenter meant to happen. Comment: A few commenters wrote of their displeasure with recent changes in special education certification and delivery of services and felt that these changes greatly dilute and weaken services. Analysis: The issues commented upon are the purview of the certification regulations and do not pertain to these regulations. Comment: Several commenters wrote that they strongly support the language found in Sections 226.50 (c), 226.130 (a), 226.140; 226.160 (c)(3), 226.170 (e), 226.210 (k), 226.300; 226.310 (h), 226.430; 226.770; 226.800 (j, k, l), and 226.820 (b). Analysis: We are pleased to have their support. Comment: Several commenters wrote that they strongly object to the following sections and suggested that they not be adopted. No reason was given nor was clarifying language provided. (Sections 226.75, 226.120, 226.130, 226.730, 226.820, 226.840) 110 Analysis: Absent any specific reasons for objecting to the language and any concrete suggestions for change, we can not determine what the commenters would prefer and make a judgement regarding validity. Comment: One commenter questioned whether or not the district is required to provide the “rights” to both parents or, as in the past, is information and involvement of one parent sufficient to meet the intent of the law? The commenter requested that this be clearly delineated so districts know what their responsibilities are in regard to this area. Analysis: This issue is addressed in Section 5/10.21-8 in the School Code and has not been addressed in the proposed regulations. Comment: One commenter requested that these regulations identify explicit standards for the components of a functional behavior analysis based on the Behavior Intervention Guidelines and require that the data be based upon student observation. Analysis: These regulations were developed to allow the local district as much discretion and flexibility as possible in order to be able to meet the unique needs of the individual students. It was determined that the district should determine the evaluations required for each child based upon guidelines established by this agency and best practices specific to the needs of the individual student. Comment: One commenter made a general statement indicating that when these regulations “explicitly refer to the code of federal regulations, the code of the federal regulations language should be explicitly stated, as for example, with respect to the definition of “dangerous weapon.” Analysis: This comment is too general to provide an analysis in this response. Specific regulatory citations were not provided and the example provided refers to a definition of a term that is not included in the definitions under Section 226.75. If the commenter is suggesting that the language in these regulations must duplicate the language used in the federal regulations, the State is not required to duplicate the federal language verbatim. Comment: One commenter wrote that the current State regulations at 226.575 (c) & (d) allow districts to develop “interim services” between placement determination and 111 actual placement, when special education placement is not possible prior to the next school semester. In addition, the current rule requires districts to notify the parents and ISBE of its actions. The commenter questioned why this regulation was not provided for in the proposed regulations. Analysis: The current rule is based on a permissive interpretation of the previous IDEA rules. Since the current IDEA rules do not address the provision of interim services in these circumstances, it is not appropriate to have this practice in state rules. Comment: One commenter stated that the terms “school days” and “days of pupil attendance” seem to be used synonymously throughout the document and suggested consistency in the use of the terms. Analysis: “Days of pupil attendance” is used only once at section 226.110 (d)(3) in language taken directly from section 5/14-8.02 of the Illinois School Code. This terminology would be consistent with the definition of “school day.” We have used these various terms to describe “day” in conformity with 34 CFR 300.9 and the School Code. Comment: Several commenters wrote that the current State regulations at 226.555 require that a certified school psychologist concur with a child‟s eligibility for mental impairment. This language is also found in Section 5/14-8.02 in the School Code. The commenters suggested this language be added not only to mental impairment but also autism and emotional disorder. Analysis: We agree to add the language of the School Code. IDEA97 and the federal regulations have taken a strong stance to allow local districts discretion in determining which evaluations need to be conducted for each child. These regulations clearly identify that the child review team process is the mechanism that districts must follow in order to meet the federal requirements. These regulations took great care to not stipulate which diagnostician(s) will be involved in a given child‟s evaluation. Comment: One commenter suggested that the regulations be “parent friendly” since many parents do not understand Procedural Safeguards and Due Process. In addition, the commenter suggested amending the rules to reflect that “intimidation will not be tolerated by education service providers or parents.” Analysis: 112 The state regulations must be written in a “rule format” and are written as clearly as possible. A Parents‟ Guide: The Educational Rights of Students with Disabilities, developed by the State Board of Education, is a document that explains the special education process and parent‟s rights and is written in a “parent friendly” way. Comment: A commenter suggested adding language to the regulations that would not require personnel to provide services when those services have not been provided due to illness, meetings, etc. Analysis: The IEP describes the amount, frequency, location and duration of services necessary for each child. Guidance from OSEP has been that everything on the IEP must be provided as specified in the IEP unless some circumstance causes all children to be effected equally (e.g. holiday).
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