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The New Part 226 Rules: Highlights

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1 The New Part 226 Rules: Highlights
Illinois State Board of Education

2 Presentation Objectives
Review rule approval process Provide rationale for rule changes Highlight significant rule changes Discuss application of new rules

3 Why This Way? To reduce the number of state rules that duplicate Federal language To highlight areas where Illinois chose to depart from Federal guidelines To revise outdated or ineffective processes and procedures

4 Key Dates IDEA 2004 December 2004 Illinois Proposed Rules April 2006
Public Comment April October 2006 Final Federal Rules August 2006 ISBE Board Approval December 2006 JCAR Prohibition January 2007 ISBE Board Approval of Revised Rules June 2007 JCAR Lifting of Prohibition June 2007 Final Illinois Rules June 28, 2007

5 23 IAC 226.50 Free Appropriate Public Education
Transfer Students, Eligibility & Graduation

6 23 IAC 226.50 Requirements for a Free Appropriate Public Education (FAPE)
(a) Transfer Students Additional requirements outlined in the rule apply only to students who transfer from another district in Illinois Out-of-state transfers are controlled by the 20 USC Section 1414(d) and 34 CFR (f)

7 23 IAC 226.50 Requirements for a Free Appropriate Public Education (FAPE)
(a) Transfer Students When a district receives a transfer student from another Illinois district, it may: Adopt the IEP of the sending district without an IEP meeting if it deems the IEP appropriate and the parents “indicate…satisfaction” with the IEP either orally or in writing. Develop a new IEP after providing notice to the parents (no later than ten days after the student’s enrollment in the new district) of the date of the new IEP meeting. In the interim, the district shall implement services comparable to those in the IEP of the sending district. If the district thinks existing IEP is appropriate, don’t need an IEP meeting to adopt it, as long as parents communicate orally or in writing their satisfaction with the IEP. The district also has the right to develop a new IEP, but must provide notice of the IEP meeting date to parents within 10 days of enrollment. Can’t leave student without services, though. Must implement comparable services.

8 23 IAC 226.50 Requirements for a Free Appropriate Public Education (FAPE)
(a) Transfer Students In the absence of receiving either the student’s IEP from the sending district or verbal or written confirmation of the contents of the IEP from the sending district, the district may provide services it believes will meet the needs of the student until the IEP or confirmation of the IEP’s contents is received from the sending district. The receiving district MUST request records from the sending district within one business day after enrollment of the student. Even in absence of confirmation of IEP contents, district may provide services until such confirmation is received. Have to request records from previous district within one business day after enrollment.

9 23 IAC 226.50 Requirements for a Free Appropriate Public Education (FAPE)
If the receiving district has not received and adopted the existing IEP from the sending district within ten days after the deadline for the sending district to transfer such records under Section a of the School Code, the receiving district SHALL initiate an IEP meeting to develop a new IEP. If IEP isn’t received and adopted by receiving district within 10 days after deadline for transfer of records by sending district, receiving district MUST initiate a meeting to develop new IEP

10 23 IAC 226.50 Requirements for a Free Appropriate Public Education (FAPE)
Eligibility; Graduation or Completion of Program 1) An eligible student who requires continued public school educational experience to facilitate his or her integration into society shall be eligible for such services through age 21, inclusive (i.e., through the day before the student’s 22nd birthday) (see 34 CFR (a)). This change became necessary because of conflicting language: School Code says “between the ages of 3 and 21, as did previous special ed regs. IDEA says “3 through 21.” Our previous ad hoc rule was: A child is allowed to finish the school year if he/she turned 21 during the school year. But, IDEA says 3 through 21, and we think it’s intended to mean through the student’s 21st year. So, our rule is now uniform with the federal regs. It also provides equity for students. We will no longer have a situation where a student who turns 21 one day before school starts doesn’t get services, but a student who turns 21 the next day (the day school starts) does get services.

11 Age of Eligibility: Rule of Application
If the student aged-out under the old rule (i.e., the “age-out” occurred on or before June 27, 2007), the student is no longer eligible for services, even if the student’s age might allow for further eligibility under the new rule. Why is this? No retroactivity is included in the language of the regulation or the recently signed PA , which is the legislative version of the rule.

12 Examples of the Rule a) Student A turned 21 on October 15, 2006 and completed the school year on June 5, This student would NOT be eligible to receive further services during the school year. b) Student A turned 21 on October 15, 2006 but, by virtue of extended school year, this student’s school year did not end until July 10, This student would be eligible to receive services until October 14, 2007. b) Under Example B, the student continues to be eligible because he/she was eligible for services as of June 28, 2007, unless the student was determined to have met graduation requirements after completing ESY.

13 Graduation Requirements
23 IAC (c): The provision of FAPE is not required with respect to a student with a disability who has graduated with a regular high school diploma. A student with a disability who has fulfilled the minimum State graduation requirements set forth in Section of the School Code [105 ILCS 5/27-22] shall be eligible for a regular high school diploma. A) If the student’s individualized education program prescribes special education, transition planning, transition services, or related services beyond that point, issuance of that diploma shall be deferred so that the student will continue to be eligible for those services. 226.50(c)(2): Right to FAPE ends when student graduates with a regular high school diploma; we removed the words “or its equivalent” 50(c)(3)(A): Clearly states that issuance of a diploma shall be deferred if a student’s IEP prescribes services beyond the point at which the student has fulfilled minimum State graduation requirements specified in the School Code.

14 Graduation Requirements
23 IAC (c): (3)(B) If the student is to receive a regular high school diploma, at least one year prior to the anticipated date of its issuance, both the parent and the student shall receive written notification in conformance with the requirements of 34 CFR that eligibility for public school special education services ends following the granting of a diploma and that the parent (or the student, if Section of this Part applies) may request an IEP meeting to review the recommendation that the student receive a regular diploma. 4) Students who have participated in a graduation ceremony but have not been awarded regular high school diplomas continue to be eligible to receive FAPE through age 21, inclusive. 226.50(c)(3)(B)—is essentially the same as the previous requirement for one-year prior notice to parents and student regarding the impact issuance of diploma has on eligibility for services and the right to request a meeting to review the recommendation 226.50(c)(4): This is a new provision. We have received many questions over the years about this issue. The answer is now codified. Just because a student “walks the stage” at graduation does not mean he/she forfeits eligibility for services.

15 23 IAC Selected Definitions

16 23 IAC 226.75: Definitions Disability:
IDEA identifies 13 disabilities as the basis for students’ eligibility for special education and related services. These disabilities (autism, deaf-blindness, deafness, emotional disability, hearing impairment, cognitive disability, multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment) shall be defined as set forth in 34 CFR 300.8(c). In addition, for the purposes of this Part, “autism” shall include, but not be limited to, any Autism Spectrum Disorder that adversely affects a child’s educational performance. Autism: Clarification was added that autism includes any disorder on the autism spectrum, which includes Asperger’s.

17 23 IAC 226.75: Definitions Developmental Delay:
See 34 CFR and (b). Delay in physical development, cognitive development, communication development, social or emotional development, or adaptive development (may include children from three through nine years of age). The age for which Developmental Delay may be used has been extended through age 9. Previously, it was only through age 5.

18 23 IAC 226.75: Definitions “Parent”
Incorporates language of 34 CFR and defines a parent as either: A biological or adoptive parent A foster parent (unless State or local law otherwise limit this authority) A guardian (other than the State) authorized to act on the child’s behalf Individual acting in place of the biological or adoptive parent with whom the child lives An individual who is legally responsible for the child A surrogate parent

19 23 IAC 226.75: Definitions “Related Services”
Adopts language of 34 CFR Adopts exclusionary language of that excludes surgically implanted devices like cochlear implants including optimization of the functioning of such devices Duty of a local district to monitor and maintain devices to maintain the health and safety of the child is now explicit Related Services are transportation and such developmental, corrective and other supportive services as are required to assist a child with a disability to benefit from special education Include: Speech-language & audiology services, interpreting services, psychological services, OT & PT, early identification & assessment of disabilities, counseling (including rehab counseling), orientation & mobility, medical services for diagnostic or evaluation purposes. Also school health & school nurse services, school social work & parent counseling & training Excludes surgically implanted devices & optimization of the functioning of those devices, but does not: limit the responsibility of the district to monitor and maintain medical devices needed to maintain health and safety of the child or prevent the routine checking of an external component of such a device to make sure it’s functioning properly

20 Child Find & Evaluation
23 IAC Child Find & Evaluation

21 23 IAC 226.100 Child Find Responsibility
Reminder: Child find now explicitly includes parentally-placed students who attend private schools in your district (per the requirements of IDEA 2004, Section 1412)

22 23 IAC 226.110 Evaluation Procedures
Procedures for requesting and conducting initial evaluations of children who are suspected of requiring special education and related services shall conform to the requirements of 34 CFR , , , and For purposes of this Section, the “date of referral” discussed in Section of the School Code shall be understood to be the date of written parental consent for an evaluation, and screening procedures done in accordance with 34 CFR shall not be considered an evaluation. Consent for the initial evaluation shall be obtained in conformance with the requirements of 34 CFR In addition, the following requirements shall apply: This is not a change from what you’ve been doing. We simply removed the term “date of referral” from the definitions section of the 226 rules and define it here instead ( ).

23 23 IAC 226.110(a)(3): Evaluation Procedures
Within 14 school days after receiving a request for an evaluation, the district shall determine whether an evaluation is warranted. If the district determines not to conduct an evaluation, it shall provide written notice to the parents in accordance with 34 CFR (b). If an evaluation is to be conducted: a) The district shall convene a team of individuals (including the parent) having the knowledge and skills necessary to administer and interpret evaluation data. The composition of the team will vary depending upon the nature of the child’s symptoms and other relevant factors.

24 23 IAC 226.110(a)(3): Evaluation Procedures
b) The team shall identify the assessments necessary to complete the evaluation in accordance with 34 CFR and shall prepare a written notification for the parents as required under 34 CFR (a). For each domain, the notification shall either describe the needed assessments or explain why none are needed. c) The district shall ensure that the notification of the team’s conclusions is transmitted to the parents within the 14-school-day timeline applicable under this subsection (c)(3), along with the district’s request for the parents’ consent to conduct the needed assessments. The domain process remains the same 14 school days: The timeline for parent notification of conclusions is now codified.

25 23 IAC 226.130 Specific Learning Disability (SLD)
Response to Scientific, Research-Based Interventions (RtI)

26 The Heart of the RtI Language
23 IAC (b): Provided that the requirements of this subsection (b) are met, each district shall, no later than the beginning of the school year, implement the use of a process that determines how the child responds to scientific, research-based interventions as part of the evaluation procedure described in 34 CFR When a district implements the use of a process of this type, the district shall not use any child’s participation in the process as the basis for denying a parent’s request for an evaluation. Beginning with the school year, districts must use an RtI process as part of the evaluation procedures to determine eligibility under SLD. Parent Request for Evaluation: The district must always consider a parent’s request for evaluation and follow the procedures delineated in (a)(3), which we just reviewed. If an evaluation is conducted, you must use an RtI process as part of the evaluation procedure within the 60 school day timeline, UNLESS the timeline is extended by mutual written agreement of the child’s parents and the school, as provided for in IDEA 2004 (see 34 CFR (C)). If it’s determined an evaluation is not warranted, you must provide written notice to parents stating the decision not to conduct, reasons for that decision, a description of the evidence used as the basis for not doing the evaluation, and advising them of their right to challenge the decision. We also recommend that you outline what will be done to address the learning needs of the student, e.g., reading interventions, math interventions.

27 The Prerequisites to Mandatory RtI
By January 1, 2008, ISBE must develop a plan for implementing RtI that is to be developed in consultation with stakeholder groups, including ISAC The plan must include estimated costs and resources needed to provide TA to districts, as well as a method for identifying those districts that require assistance for resources

28 The Prerequisites to Mandatory RtI
By January 1, 2009, local districts must develop a plan for transitioning to the use of an RtI process, including identification of the resources to be used in implementing the plan NOTE: Nothing prohibits districts from implementing RtI now, though it is not yet mandatory. Remember, though, that the requirements at 34 CFR (b) do apply now. The plan should identify the types of technical supports needed, including training. As indicated in the regulations, this plan can be incorporated into any existing district improvement plan developed in conjunction with AYP status. We strongly recommend that this be done, as the types of supports needed are similar to those for addressing AYP. Resources: Remember, districts may use up to 15% of their IDEA funds to carry out coordinated, early intervening services to at-risk students aligned with activities funded by and carried out under NCLB. Districts identified as having significant racial or ethnic disproportionality in identification, placement or discipline of students with disabilities MUST use 15% of their funds for this purpose. Funds may be used for: Professional Development Providing educational and behavioral evaluations, services and supports, including scientifically-based literacy instruction Can do this now, before Must meet the requirements at 34 CFR (b) NOW

29 34 CFR (b) To ensure that underachievement in a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the group must consider— 1) Data that demonstrate that prior to, or as part of, the referral process the child received appropriate instruction in regular education settings from qualified personnel; and 2) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the child’s parents. For students suspected of having a specific learning disability, the group must rule out underachievement due to lack of appropriate instruction by looking at: Data that shows the child was provided appropriate instruction in gen. ed. classes by qualified personnel Data from repeated assessments (e.g., curriculum based measures such as DIBELS or AIMSweb) reflecting formal progress monitoring during instruction This requirement must be met now, regardless of what process a district uses to determine LD eligibility. So, if a district chooses to continue to use the IQ discrepancy model, the team must still be able to document both of these things when determining eligibility. You will find that this is reflected on the Eligibility Determination for SLD page of our new state-recommended IEP forms.

30 The Old Process Remains…
23 IAC (d): Districts may continue to use a “severe discrepancy” model when determining whether a specific learning disability exists, but beginning with the school year, must also first use an RtI process. While the “severe discrepancy” model can continue to be used alone until , remember the requirements we just discussed under 34 CFR (b) regarding data based documentation of repeated assessments. When the requirement to use an RtI process takes effect in : A child can only be found to be eligible for special education and related services under the category of SLD based on how the student responds to scientific, research-based interventions. If the child would not be eligible on that basis, the team could not then find the child eligible based on the discrepancy model.

31 The IEP IEP Team IEP Content

32 23 IAC IEP Team The composition of the IEP Team for a particular child, and the participation, attendance, and excusal of the team members and other individuals in the IEP meeting, shall conform to the requirements of 34 CFR , , , and The additional requirements of this Section shall also apply. a) The general education teacher who serves as a member of a child’s IEP Team shall be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to instruct the child. General Education: Term is interchangeable with “regular education” b) For students aged 3 through 5 who have not yet entered the primary grades, a teacher qualified to teach non-disabled preschool students General education teacher: A person who will be involved in the implementation of the IEP.

33 23 IAC 226.210 IEP Team Excusal of Team Members may occur when:
The district and parent agree in writing that the member’s attendance is not necessary because the member’s area of curriculum or related services is not being modified or discussed; or The district and parent agree to the excusal and the member submits written input into the IEP development process prior to the meeting (if the member’s area is being discussed or modified) (34 CFR (e)) Must use new ISBE Form 34-57H, Parent/Guardian Excusal of an IEP Team Member Parent should receive written notification prior to the meeting. District should communicate with parent/guardian about the excusal prior to sending the written notice. A signed copy of the notice and any written input from the excused team member (if applicable) should be attached to the student’s IEP.

34 23 IAC IEP Team By reference to 34 CFR , amendments to the IEP may be made outside the IEP meeting process if done in writing with the agreement of the parent and the district. The writing must define the changes to be made to the IEP. Members of the IEP team must be informed of those changes. Must use new ISBE Form 34-57G, Parent/Guardian Notification of IEP Amendment Form can only be used for minor IEP changes that do not change a student’s placement. The district must communicate with the parent/guardian (in person, by phone, or fax exchanges) about the minor changes, and all such communication must be documented on the form.

35 Section 226.230: Content of the IEP
Each IEP shall include: Present Levels of Educational Performance must include statements of academic and functional performance (34 CFR ) Functional Performance is related to activities associated with daily living (e.g., social/emotional, behavioral deficits, independent functioning, vocational, motor skills). For students 14 ½ and older, describe student strengths and weakness within t he context of his/her post-school goals.

36 P.A. 95-0257: Additional IEP Procedures for Students with Autism
Amends of the School Code to require specific factors to be considered by the IEP team when addressing the needs of students whose exceptionalities fall within the autism spectrum according to the DSM-IV

37 P.A. 95-0257: Additional IEP Procedures for Students with Autism
Factors to be considered: Verbal and non-verbal communication needs Need to develop social interaction skills & proficiencies Needs resulting from unusual responses to sensory experiences Needs resulting from resistance to environmental changes, changes in daily routines or engagement in repetitive activities & stereotyped movements Need for positive behavioral interventions, supports and strategies to address any behavioral difficulties arising from autism spectrum disorder Other needs resulting from the condition that impact on progress in the general curriculum

38 Section 226.230: Content of the IEP
c) Post-Secondary Transition Beginning not later than the first IEP to be in effect when the child turns 14 1/2, and updated annually thereafter, the IEP shall include: appropriate, measurable, postsecondary goals based upon age-appropriate assessments related to employment, education or training, and, as needed, independent living; the transition services that are needed to assist the child in reaching those goals, including courses of study and any other needed services to be provided by entities other than the school district; and any additional requirements set forth in Section of the School Code [105 ILCS 5/ ]. We have chosen to retain the requirement that a transition plan be in place by age 14 ½, even though IDEA 2004 now says age 16. Transition services are defined at Are a coordinated set of activities Designed to be within a results-oriented process and Focused on improving the academic & functional achievement to facilitate movement from school to post-school activities Include: Instruction Related services Community experiences Development of employment & other post-school adult living objectives and If appropriate, acquisition of daily living skills & provision of a functional vocational assessment.

39 Procedural Safeguards
Transfer of Rights Consent Mediation Complaints Due Process

40 P.A. 95-0372: Transfer of Rights
Adds a new Section to the School Code Facilitates the ability of students 18 and older to appoint another person to represent their educational interests Prescribes language that students may use to appoint an educational representative Creates an alternative to guardianship process in Illinois At age 18, all parental rights transfer to the student. The student may still have an adult of his/her choice to assist in IEP decision making. The district must notify the student & parents of transfer of rights in writing at the IEP meeting during school year the student turns 17 and must provide the student with copy of Delegation Of Rights form at the meeting, or if the student and parents don’t attend, must mail the notice and copy of delegation of rights form. Rights won’t transfer if: The student is adjudged to be incompetent under State law. The student is not adjudged to be incompetent, but has executed a Delegation of Rights to make educational decisions for the purpose of appointing his/her parents or other adult to represent his/her educational interests. The student can terminate the Delegation of Rights at any time and assume the right to make his/her own educational decisions. The Delegation of Rights: --Remains in effect for one year and may be renewed annually. --Must be signed by the student or verified by other means (e.g., audio, video, other format compatible with student’s disability). The designee must sign or otherwise verify acceptance of the delegation.

41 Consent is required when:
Section : Consent Consent is required when: Accessing Medicaid, other public benefits or private insurance (34 CFR ) Initial evaluations (34 CFR ) Re-evaluations (34 CFR ) Initial provision of services (34 CFR ) Release of information to individuals or agency outside of the district (34 CFR )

42 Section : Consent Revocation of consent may be oral or written (if oral, district must memorialize in writing within 5 days) If consent is revoked: The revocation has immediate effect The action for which consent was provided must be terminated immediately In the case of a placement, the district may request due process to stay the placement and to challenge the revocation, but must do so within 5 business days after the parent’s revocation occurred

43 Section : Mediation Agreements are now enforceable in a State or Federal court (34 CFR ) Mediators may not be an employee of the SEA or LEA, or have a personal or professional interest that conflicts with the mediator’s objectivity in the case (34 CFR )

44 Section 226.570: State Complaints
Principal Changes: One-year statute of limitations for filing a complaint (34 CFR (c)) The party filing the complaint must also forward a copy of the complaint to the LEA against whom the complaint was filed (34 CFR (d)) The parties must be afforded the opportunity to mediate their dispute to resolve the issues (34 CFR (a))

45 Section 226.600 et seq.: Due Process
Principal Changes: Two-year statute of limitations Prehearing procedures Dismissal for lack of sufficiency Written responses Resolution process Longer timelines for expedited hearings (20 school days for hearing, 10 school days for decision)

46 General Education Special Education
Class Size General Education Special Education

Section & 731: Class Size GENERAL EDUCATION CLASS When a student’s IEP calls for services in a general education classroom, the student must be served in a class that is composed of students of whom at least 70 percent are without IEPs, that utilizes the general curriculum, that is taught by an instructor certified for general education, and that is not designated as a general remedial classroom. THIS REMAINS THE SAME…

Class Size Case Load

49 What’s the Difference? Class Size:
The number of students in a special education classroom during any class period Case (Work) Load: The number of students for which a special educator is responsible Since these two terms do not mean the same thing, the new state regulations now clearly differentiate between class size and work load.

50 Section 226.731: Class Size Provisions for 2007- 08 and 2008-09
In the Special Education Setting: A student shall be considered to require “instructional” classes when he or she receives special education instruction for 50 percent of the school day or more. Classes for such students shall be subject to the limitations of this subsection (b). A student shall be considered to require “resource” classes when he or she receives special education instruction for less than 50 percent of the school day. Classes for such students shall be subject to the limitations of this subsection (c). THIS ALSO REMAINS THE SAME…

51 Special Education Class Sizes through 2008-09
Disability Category Limit Unique w/Aide Circumstances INSTRUCTIONAL CLASSES: Early Childhood (All Disabilities) Multiple Disabilities Severe/Profound Disability Traumatic Brain Injury Severe Visual Impairment Severe Hearing Impairment Severe Physical Impairment Severe Speech/Language Impairment Severe Behavior Disorders Learning Disabilities Cross Categorical Moderate Visual Impairment Moderate Hearing Impairment Mild or Moderate Mental Impairment: Primary, ages Intermediate, jr, sr. high) RESOURCE CLASSES – Any Category This slide shows the categorically-based special education class size limitations for instructional classes and those for resource classes for any disability.

52 23 IAC 226.730: Special Education Class Sizes for 2009-10 and Beyond
Class size means the total number of students an educator serves during any special education class. As used in this subsection (b), “class” means any circumstance where only students with IEPs are served and at least one special education teacher is assigned and provides instruction and/or therapy exclusively to students with IEPs. In the formation of special education classes, consideration shall be given to the age of the students, the nature and severity of their disabilities, the educational needs of the students, and the degree of intervention necessary, subject to the limitations of this subsection (b). This approach for determining special education class size is based on students’ needs, not their disability labels.

53 23 IAC 226.730: Special Education Class Sizes for 2009-10 and Beyond
Removal from General Ed limit total w/ aide 0-20% 21-60% 61-100% Ages This slide shows the needs-based special education class size limitations. If students in a special education class during the same class period are removed from general education for different percentages of their day (e.g., some are outside general education 0-20% of the day, but another is outside general education 21-60% of the day), then you must look for the student with the highest percentage outside general education to determine the class size for that class period.

54 Work Load for Special Educators

55 Case Load Work Load

56 What’s the Difference? Caseload: A “head count” – the number of students with an IEP for which a special educator is responsible Does not take into consideration: the type instruction required, the amount of consultation with others required, the amount of IEP meetings required

57 23 IAC 226.735 Work Load for Special Educators
LEAs must adopt a plan specifying limits on the work load of its special educators Plans must be developed with the LEA’s affected employees and, where there is an exclusive representative, in accordance with the Illinois Educational Labor Relations Act (IELRA). Plans must take effect by the school year, unless a later date is necessary to comply with an agreement under the IELRA in effect at the beginning of that school year Work load is to be determined at the local level through the adoption of a plan. Work load limits must ensure that all services required on students’ IEPs, plus all needed ancillary and support services, can be provided at the required level of intensity.

58 23 IAC 226.735 Work Load for Special Educators
Plan must be based on analysis of the activities for which special education staff are responsible, including, but not limited to: individualized instruction, consultative services and other collaboration among staff members, attendance at IEP meetings and other staff conferences, and paperwork and reporting. Caseload for speech-language pathologists remains the same – no more than 60 students

59 Resources (state special education regulations) (IDEA 2004 final regulations) (access to mandated Notice & Consent Forms & Instructions and recommended IEP Forms & Instructions)

60 Questions? ISBE Special Education Services, Springfield,

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