Comments by qye36108

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									                               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.
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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.
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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.
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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.
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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.
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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.
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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
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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
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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)
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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
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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:
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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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