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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that duplicate Federal language To highlight areas where Illinois chose to depart from Federal guidelines To revise outdated or ineffective processes and procedures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): Student who has fulfilled the minimum State graduation requirements is eligible for regular diploma: Possible Question If the district graduation requirements are higher than the minimum State requirements and the student did not meet the district requirements, can the district deny the student a regular high school diploma solely on that basis? Answer: No! If student has met State requirements but continues to need services beyond age 18, can the district require the student to take the diploma and exit at age 18? Answer: No! See subsection A (below). This is always an IEP team decision, based on the individual needs of the student. 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. Emotional Disability & Cognitive Disability: We made a decision to not use the federal names for these categories. We reached this decision due to the many negative stereotypes associated with the federal category names, and we want to use what we consider to be more positive terms. 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 (the day before the child’s 9th birthday). Previously, it was only through age 5. Possible Question: Will ISBE be developing criteria for DD, particularly past age 5, to make sure it’s used appropriately? Answer: ISBE has no plans at this time to develop criteria for DD. However, if a district has longitudinal data suggesting a more specific disability category is appropriate, it can use that data to determine a particular disability category. It could also continue to use the DD identification. The most important issue is ensuring that the student has needs that require special education and related services and those services are specially designed to meet the needs of the student. In terms of possible over-identification using the DD category, remember that you still have to show that the student has had access to appropriate instruction. Lack of appropriate instruction in reading and math are exclusionary criteria for eligibility for all disabilities.

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 and with whom the child lives An individual who is legally responsible for the child A surrogate parent Parent: For the purposes of the 226 regulations, “parent” means any person authorized to provide consent in the IEP process This is not the same as the definition that may be used for the purposes of enrollment Our definition assumes the student is already enrolled and known by the district.

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 (optional information to share with audience if time permits): 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 23 IAC 226.130 Specific Learning Disability (SLD)
Response to Scientific, Research-Based Interventions (RtI)

21 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. There was much debate over using the word “shall” rather than “may.” However, we maintained the word “shall” because we are committed to focusing on student outcomes and student data when making important educational decisions about students. We believe using an RtI process and the components that go along with it (e.g., scientific, research-based interventions, student progress monitoring) provides an effective means for doing so. 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 (e.g., student performance does not lead us to suspect a disability at this time; Can’t say “because first we have to do RtI”), 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. Evaluation of Parentally-Placed Private School Students & RtI: Possible Question: Once the requirement takes effect to use an RtI process as part of the evaluation procedures for LD, what will the district’s obligation be to meet this requirement for parentally-placed students? Answer: We are still looking at this issue and are not able to provide a definitive answer at this point. Possible Question: If a district is currently using an RtI process, how would it be applied to evaluating parentally-placed private school students? Answer: We recommend that you start with key “problem identification” questions to the parents, and if possible, to the school: “What problem(s) prompted the referral (e.g., reading comprehension)? What data can you or the school provide that demonstrates this problem is occurring (e.g., curriculum-based measures, student work, other evaluation measures)? Do you have any data (e.g., oral reading fluency) that might help in hypothesizing why the problem is occurring? What intervention strategies have been tried so far to address the problem (e.g., supplemental reading instruction, skill-specific interventions)? What kind of core instruction has child received?” You could also complete the domain page and fill in as much available data as possible in order to make a decision.

22 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 We have already begun working within ISBE to put an internal team in place that will be necessary to proceed with plan development and implementation. This includes Special Education Services, Federal Grants & Programs (which oversees Title I grants and coordinates the Regional Support Providers (RESPROs) for low performing schools), Curriculum & Instruction (which includes Reading First & Reading Improvement Block Grants). We will also be working with external stakeholders, including IAASE, the IL Superintendents Association (IASA), the IL Principals Association (IPA) the teacher organizations (IAA & IFT), our State Advisory Council on the Education of Students with Disabilities (ISAC), ROEs & RESPROs We expect to have a draft plan by November We have a beginning infrastructure for training and T.A. with Illinois ASPIRE (Alliance for School-based Problem-solving & Intervention Resources in Education).

23 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

24 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.

25 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.

26 The IEP IEP Team IEP Content
IEP process is designed so that everyone has needed information to make decisions about what a free, appropriate public education should be for a child. This requires the involvement of key team members and the formulation of an IEP that has the required content.

27 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 Required team members: Parents District representative, who serves as district spokesperson, is knowledgeable of the general ed curriculum and can bind the district to what’s agreed upon Individual who can interpret instructional implications of evaluation results Special Ed. Teacher General Ed. Teacher: A person who is or will be involved in the implementation of the IEP Special Rule for ages 3-5: Teacher qualified to teach non-disabled preschool students.

28 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)) Excusal allowed for two situations: Agreement that member’s area of curriculum or services not being discussed Agreement that member can submit written input, i.e., what individual would discuss if he/she attended the meeting, including any modifications Must use new ISBE Form 34-57H, Parent/Guardian Excusal of an IEP Team Member Parent should receive written notification prior to the meeting: There is no codified definition of “prior”; however, we would expect districts to provide reasonable notice (and copy of excused member’s written input) so that parent has enough time to digest the content of the written input. 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.

29 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. Can now amend the IEP outside of the IEP meeting. 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. Must describe, in detail, the changes to be made. 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. If parents have questions after receiving the changes, you should be prepared to convene a meeting, if necessary, to make sure they understand the changes. Parents must receive a copy of the revised IEP—current IEP plus amendment

30 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). Includes how the child functions in the classroom, e.g., a student with ADHD or Aspergers may not have academic difficulties but may have difficulty interacting, participating and focusing attention in the classroom. Adaptive behavior is part of the functional performance umbrella. For students 14 ½ and older, describe student strengths and weakness within t he context of his/her post-school goals.

31 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

32 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 or daily routines 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

33 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. You can do it prior to age 14 ½, e.g., if IEP meeting is scheduled before student turns 14 ½ instead of convening another meeting It’s an issue of continuing what we think is a good practice that has been in place since IDEA ’97. It’s important to look at transition needs as early as possible. 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.

34 Procedural Safeguards
Transfer of Rights Consent Mediation Complaints Due Process

35 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

36 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 ) A mediation agreement is now a legally enforceable document, but can only be reinforced in State & Federal court, not through complaint or due process Used to allow SEA employees and LEA employees to serve as mediators, but this is now prohibited by the federal regulations

37 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)) 1-year statute of limitations: Parents can’t file a complaint on a violation that they knew about and that occurred more than 1 year prior. However, if parents had no knowledge of violation until after the 1-year limitation, e.g., district discontinued speech services but didn’t inform parents, then parents can file complaint. Copy of complaint to LEA: ISBE is helping facilitate this process by sending a copy to the LEA when we receive it; We will also be reminding/informing parents of need to provide copy of complaint to the LEA. ISBE must inform the parties of their right to mediate the dispute

38 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) The changes in due process requirements have been in effect for some time now. ISBE provided guidance in 2005, informing districts that these changes were in effect. 2-year statute of limitations: Violation must have occurred no more than 2 years prior to filing for due process hearing, unless filing party had no knowledge of the violation. Pre-hearing Procedures: Hearing Officer can review the sufficiency of the complaint and determine whether dismissal is in order or provide the opportunity for the filing party to file a corrected hearing request. Within 10 calendar days of receiving the request for DP, the non-filing part has to file a response to the statements rendered in the hearing request Resolution process: no mediator or 3rd party, unless both agree to have one; no lawyers unless parent wants to bring attorney; is a legally binding process; process must occur unless waived in writing by both parties; first meeting must occur within 15 calendar days of receipt of hearing request; entire process must be completed within 30 calendar days of the receipt of hearing request Expedited hearings: Used to be 5-school-day process (is now 20 school days)

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

40 Questions? ISBE Special Education Services, Springfield,


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