ACTION: Illinois Council for Exceptional Children on Part 226, special ed regulations.

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-Bev Johns

Unless you take action, on November 17 a legislative committee will give final approval to changes in the Illinois special ed regulations. The changes would completely abolish ISBE review and approval of local school district policies and procedures for special education, eliminate any consultation on any RTI plan changes, allow a school district to take 75 percent of the 60 days allowed for ISBE to investigate a special ed complaint to just reply to that complaint, deletes the date of referral for evaluations. The changes would not address current delays in evaluations,and deletes the date (the 2009-10 school year) by which ALL local schools districts were to have an effective process to limit the Work Load of Special Educators (Chicago and many other school districts still have NOT done it, and others have an ineffective plan).

On November 7, 2015, the Board of the Illinois Council for Exceptional Children (Illinois CEC) voted unanimously to oppose the Illinois State Board of Education’s (ISBE) proposed specific changes/additions to the following sections of Part 226, the Illinois special education regulations:

(1) 226.735 Work Load for Special Educators; (2) 226.570 State Complaint Procedures; (3) 226.130 Additional Procedures for Students Suspected of or Having a Specific Learning Disability (known as the Response to Intervention – RTI – mandate); (4) 226.110 Evaluation Procedures; (5) 226.710 Policies and Procedures.

PLEASE CALL the following State Senators and State Representatives saying: On November 17 please vote to prohibit the filing of changes to 735, 570, 130, 110, and 710 of Part 226, special education regulations, so there is time and the incentive for the State Board of Education to work with Illinois CEC and other organizations to improve the current Part 226 regulations. 

MEMBERS OF JOINT COMMITTEE ON ADMINISTRATIVE RULES (JCAR)

Co-Chair–Senator Don Harmon, Oak Park, 708-848-2002

Co-Chair–Representative Ron Sandack, Downers Grove, 630-737-0504

Senator Pamela Althoff, McHenry, 815-455-6330

Senator Bill Brady, Bloomington, 309-664-4440

Senator Karen McConnaughay, West Dundee, 847-214-8245

Senator Tony Munoz, Chicago, 773-869-9050

Senator Ira Silverstein, Chicago, 773-743-5015

Representative Gregory Harris, Chicago, 773-348-3434

Representative Louis Lang, Skokie, 847-673-1131

Representative David Leitch, Peoria, 309-690-7373

Representative Andre Thapedi, Chicago, 773-873-4444

Representative Michael Tryon, Crystal Lake, 815-459-6453

PROBLEMS WITH PART 226:

(1) With 226.735, Work Load for Special Educators required local school districts to have a plan 6 years ago (by the 2009-2010 school year) limiting the total work load for a special education teacher and other special educators. 

Eight (8) years ago Case Load limits (strict limits on the total number of special education students that a special educator could serve in any way) were eliminated.

Nothing has replaced Case Load limits in too many school districts.

Now, six years later, Chicago and an unknown number of other school districts have NO plan, or no effective plan, that limits the Work Load for Special Educators, and ISBE wants to remove the 2009-10 date.

We oppose that removal because it highlights the failure of ISBE to implement this important regulation, and points to the need for immediate action by ISBE.

(2) With 226.570 on State Complaint Procedures, ISBE wanted absolute discretion to decide how long it could allow a local school district to reply to a  special education complaint filed with ISBE by a parent, teacher, or organization.  

As of October 28, ISBE proposed to JCAR staff to set a 45 day limit.

That is unacceptable. ISBE has a total of only 60 days to investigate and make a decision. Giving 45 days to the school district to reply to a complaint leaves only 15 days for ISBE to investigate after it has both sides, after it knows the facts.

Instead of 45 days, the limit should be no more than 15 days.

Instead of making complaint resolution faster, more informed, and with complete information early in the process, the ISBE proposal may result in even longer than 60 days being taken by ISBE, making ISBE even more out of compliance.

Parents (and their child) deserve fast and informed action by ISBE on a complaint about the lack of proper action by a local school on the education of their child.

Increasing the time allowed to investigate a complaint could delay services to students or prolong inappropriate placements.

(3) 226.130 Additional Procedures for Students Suspected of or Having a Specific Learning Disability (known as the Response to Intervention – RTI – mandate)

First, note this regulation requires RTI ONLY for students suspected of having a Learning Disability (LD), although ISBE is encouraging school districts to use RTI more generally.

RTI is being abused by some school districts all over the country. This is true in Illinois.

Response to Intervention (RTI), also known as MTSS (Multi-Tiered System of Support), varies all over Illinois.

Some schools have short, intensive RTI, but others have “RTI classes” OR use RTI to delay and deny evaluation of students for special education for months or years (in violation of IDEA).

ISBE proposes to eliminate consultation with certain education organizations as it changes its RTI plan, which it certainly needs to do.

Instead of being eliminated, consultations should instead be EXPANDED to include statewide special education teacher (Illinois CEC) and parent organizations.

(4) In 226.110 ISBE proposes to eliminate from Evaluation Procedures the date of referral as being the date of written parental consent for an evaluation.

Instead ISBE should be addressing all the problems with special education evaluations: no limit between the 14 days that a school district has to decide whether it will evaluate a child, and the 60 days the school district has for the actual evaluation.

So some school districts delay that evaluation by weeks or months by having a specific written form that the school district must send to the parent (there is no limit in Illinois regulations on how long the school district can take to send the form) and the parent must fill out the form and send it back to the school district.

ISBE staff have given conflicting answers, even before the Illinois Attorney General’s Advisory Committee on Special Education, as to whether the parent’s hand written note requesting an evaluation AND giving consent for that evaluation starts the 60 day clock.

(5) In 226.710 ISBE proposes to completely eliminate its receipt AND approval of Policies and Procedures of local school districts for special education, and changes therein.

ISBE attempts to justify this by saying IDEA does not require it, and that ISBE does not have the staff to do it.

The entire purpose of Part 226 is to have Illinois regulations that exceed the Federal minimum requirements.

IDEA only sets a floor – many topics are not addressed at all, but left to the people of each State to decide.

As far as staff, in special education ISBE has staff paid for by part of the 25 percent of IDEA Part B funds that ISBE retains each year.

The problem is that far too many of those staff persons are devoted to Special Education Focused Monitoring which for over 5 years has had only ONE criteria for deciding whether to monitor local school districts: the percentage of all special education students spending at least 80 percent of their school day in the regular general education classroom.

The use of a single criterion has many negative consequences for children. IDEA requires a Continuum of Alternative Placements (COAP) be considered so that each individual child is educated in the least restrictive environment where he/she can receive the specialized instruction needed to meet their needs, as required by IDEA.

Placement in the least restrictive environment (LRE) for an individual child along the Continuum of Alternative Placements is where that individual child best receives a Free Appropriate Public Education (FAPE).

What ISBE proposes in 226.710 is a move to effectively de-regulate special education. It cannot be done.

While many local school districts are under financial pressure to reduce special education as it costs more than general education,

IDEA and its legal protections for students and parents will not go away.

If ISBE were to be successful in 226.710, the result would be more complaints filed by parents, teachers, and others, and more due process actions started by parents with all the resulting costs to local school districts (if a school district loses due process

it may have to pay the attorneys’ fees for BOTH sides in the case plus all the other costs in expert testimony, staff time, etc. in the due process proceedings).

The best and cheapest way to comply with the law is to have local school district policies and procedures that comply with Federal and Illinois special education law and regulation from the beginning.

To ensure compliance ISBE needs to continue to approve the special education policies and procedures of school districts and any proposed changes to them.

Without this review and approval by ISBE, compliance will not always occur due of lack of specific detailed knowledge of special education law and regs by some school district attorneys and school staff.

ISBE says school districts are required to follow special education law and regulations, but Federal and State special ed law and regs are quite extensive and complex.

ISBE says it may monitor a local school district, but in reality that is the exception not the rule.

There is no alternative to the regulation of special education.

The marketplace will not effectively compete for special education students, particularly higher cost students. Therefore we need effective and efficient regulation, and by prohibiting ISBE from filing the proposed changes in the five (5) areas listed at the beginning of this message, we will have time to attempt to reach more effective and efficient regulation.

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