Author: Laurene M. Heybach, Director of the Law Project of the Chicago Coalition for the Homeless and Wallace C. Winter, Director of the Disability Law Project of LAF
Last updated: September 2005
This piece is designed to demystify the special education laws and procedures and describe the major areas where proactive advocates can and should help to implement specialized educational programs that will result in positive, life-long changes in the lives of wards. The points emphasized below are a boiled-down version of the lessons learned by the author during 33 years of representing students with special education needs.
An advocate has an obligation to remind school officials of the needs of children with disabilities, especially children in foster placement who may be perceived by the school as having caretakers who are not as “involved” in their foster child’s education as biological parents would be under the same circumstances. An advocate therefore is remiss if he or she does not take all appropriate action to bring learning issues to the attention of the school. Informed advocacy will make a positive difference in nearly every case.
There are four potential advocates available for every ward: (1) the foster parent or surrogate parent (if the ward is in a group home or institutional setting); (2) the caseworker who, in addition to having the duty to meet in person with school officials at least two times a year and communicate with them in person or by telephone at least monthly (DCFS Rule 314.80(c), as revised by Policy Transmittal 2002.34, 12/18/02 “shall assist foster parent in carrying out their responsibilities as educational advocates” (§314.30(a)); (3) the appropriate DCFS educational advisor (see attached list); (4) the contracted legal services providers (for wards in Cook County, contact the Legal Assistance Foundation of Metropolitan Chicago (LAFMC), Wallace Winter, 312-347-8385, or Larry Parham, 312-347-8392).
In practice, however, many wards fail to receive the minimum advocacy that they need to secure appropriate special education services. Caseworkers too often ignore their obligations under DCFS Rule 314 to monitor their wards’ educational progress and attend important meetings, such as the eligibility and IEP conferences. Decisions are usually made at those conferences on a consensual basis by an interdisciplinary group of five to ten persons who can often be influenced by persistent and informed advocacy by the caseworker and foster parent. Local school officials generally recognize caseworkers as having significant knowledge about the child’s education and emotional history. Many caseworkers and foster parents are still unaware of the availability of free legal services through the legal services attorneys contracted by DCFS who are available to represent wards throughout the state.
Potentially, one of the most informed and emotionally committed advocates for the child is the biological parent. DCFS Rule 313.60(c) provides that biological parents “should generally” be involved in educational decision making, but “only the surrogate parent has decision making authority.” The role of the biological parent in the special education of their children who are in substitute care settings is rarely fully realized.
Under the present system in Illinois, the foster parent (or the surrogate parent in the case of a ward in a group home or institutional placement) stands in the shoes of the biological parents as the only person who can consent to a case study evaluation, an initial special education placement or a three-year re-evaluation. In addition, only the foster or surrogate parent is authorized to sign on behalf of the child the individualized educational program (IEP) (for children between 3 and 21) and the Individualized Family Service Plan (IFSP) (for children under 3). In cases of wards in a group home or institutional setting who are receiving (or should be receiving) special education services and who need surrogate parents appointed by the Illinois State Board of Education (ISBE), caseworkers should promptly request the group home or institution to initiate the request to ISBE for the assignment of a surrogate parent. Failure to do so gives the school district an excuse to delay evaluating or placing a child appropriately because the only party legally qualified to consent to the evaluation or placement of a child in a group home or institutional placement is the surrogate parent. The 2004 amendments to the Individuals with Disabilities Education Act (20 USC § 1400 et seq.) also have a provision giving judges the right to appoint a surrogate parent for a child. (IDEA § 615(b)(2)(i)). If a foster child’s parents’ rights have been terminated, however, an initial evaluation to determine whether the child has a disability can be conducted without any informed consent. (IDEA § 615(a)(1)(D)(iii)(II)(bb)).
The 2004 amendments allow the appointment as a surrogate parent of a person who is “not an employee of the SEA, LEA, or any other agency that is involved in the education or care of the child.” (IDEA § 615(b)(2A)). The 2005 proposed regulations to the 2004 amendments clarify that the person must have no “personal or professional interest that conflicts with the interest of the child he or she represents” and must have “knowledge and skills that ensure adequate representation of the child.” (34 CFR Section 300.519(d)(i-iii)). Caseworkers should be vigilant in monitoring the appointment as surrogate parents of employees of private agencies, and they should raise any concerns they have to ISBE if they believe that such employees fail to meet the conflict-free and knowledgeability requirements in the regulation. Local education agencies must appoint a surrogate parent within 30 days.
There is one designated person – either the foster parent or the surrogate parent – who sits in the driver’s seat for purposes of initiating and consenting to a ward’s special educational services. IDEA and state law do not give such “sign off” or consent authority to either DCFS or private agency caseworkers, although the active involvement of such caseworkers as advocates is both necessary and mandated under DCFS Rule 314. Caseworkers, therefore, must always be sure to have an identifiable authorized consent-giver for evaluations and special education placement who is available and informed. DCFS Rule 314.60(a) is unequivocal in placing the primary responsibility on the caseworker who “shall request that the school district make a referral to ISBE to appoint a surrogate parent.” Moreover, if an existing surrogate parent is unavailable or uncooperative, the caseworker must take the initiative and request that a new surrogate be appointed. (314.60(f)) The relevant contact information is the NIU Education Access Project for DCFS (773-292-7731) and Pat Koch (217-782-5589) at the Illinois State Board of Education.
The key document, of course, for any ward found eligible for special education is the annual individualized education program (IEP), the written blueprint for the student’s special education program for the coming year. The school district must hold an IEP meeting within 60 school days of the date of referral (i.e., the date that the foster or surrogate parent consent in writing that the school district may conduct a case study evaluation (CSE)), assuming that the eligibility conference determines that the child is eligible for special education. In Chicago, typically the IEP meeting occurs immediately following the determination of eligibility. Caseworkers must assure that the 60 school-day “clock” starts running by documenting when the foster parent gave the school district a signed consent form for the case study evaluation. A copy of the dated consent form should be kept in the caseworker’s file. The caseworker and advocate must assure that each of the required components is included in the IEP and that a new IEP is done at least annually.
Surrogate parents may request meetings at any time to revise or “fine tune” the IEPs. Such meetings must be held within 30 days of the request. A phone call from an advocate or foster parent to the case managers is usually sufficient to schedule such a meeting. The 2004 amendments limit the school district’s obligation to conduct a reevaluation to once a year, unless the parent and school agree otherwise.
Participants in the IEP meeting must include the foster parent (or surrogate parent, if applicable) and the caseworker (See DCFS Rule 314(a) and (c)), the child, if 18 or older or at the foster parent’s request; at least one regular education teacher of the child (if the child is or may be participating in the regular educational environment); at least one special education teacher of the child; an individual, usually a school psychologist, who can interpret the instructional implications of the evaluation results; a representative of the district, in Chicago usually the case manager, who is qualified to supervise the provision of the specially designed instruction to meet the unique needs of the child; a qualified bilingual specialist or bilingual teacher, if needed; and an interpreter if the foster parent is hearing impaired or does not speak or understand English fluently.
Under the 2004 amendments to IDEA, Section, (614(d)(1)(A)(i)), each IEP must include the following individualized seven components:
A statement of the child's present levels of academic achievement and functional performance;
A statement of measurable annual goals, including academic and functional goals to enable the child to be involved in and make progress in the general education curriculum;
A statement of the special education, related services, and supplementary aids and services to be provided to the child and a statement of the program modifications that will be provided to the child;
An explanation of the extent to which the child will not participate with non-disabled children in the regular class;
A statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and district wide assessments;
The projected date for the beginning of the services and modifications described above and the frequency and duration of those services; and
A statement of how the child's progress toward the annual goals will be measured and when periodic reports on the progress the child is making toward meeting the annual goals will be provided.
To illustrate in a specific case what a school district's obligations are to address the individual complex needs of a disabled child, the Supreme Court in Cedar Rapids CSD v. Garret F., 526 U.S. 66 (1999), affirmed the Court of Appeals' decision requiring the school district to provide one to one nursing services, estimated to cost $18,000 a year, for the only ventilator-dependent pupil in a district of 17,500 students. The Court rejected the school district’s arguments based on the limitations of its existing staff and the complex and continuous nature of the required related services. Instead, the Court ruled that if a related service is required to enable a qualified disabled pupil to remain in a public school, it must be provided as long as it is not a purely medical service, i.e., one that can only be provided by a licensed physician.
The caseworkers need to emphasize again and again with the foster parents the need to advocate for the individualized needs of their foster child. They should never accept excuses from the school such as, “We don’t have in our district full-day special ed programs for children between the ages of three and five,” “A one-on-one aide would be too expensive, and besides that, we have never had one before,” “We are under pressure by the Corey H. Decree not to place Johnny in a therapeutic day school,” “You know how difficult these DCFS kids are,” “We don’t have a nurse at this school,” “We lost our bilingual speech therapist, and we won’t get another until next year.” These excuses are unacceptable.
The IEP must be implemented as soon as possible after the IEP meeting is held, but in no event later than the beginning of the next school semester. If the IEP cannot be implemented within mandated time frames, an interim IEP must be provided that specifies the special education and related services that will be provided, including any special training for the child’s regular teacher until the full IEP is implemented. If both the caseworker and the foster parent attend the IEP meetings, as they are required to do under 314.60(a) and (c), and advocate aggressively for a program that meets the individualized needs of the children, the results will usually be positive and not require the intervention of one of the contracted lawyers.
In every IEP meeting, the advocate should ascertain whether the case study evaluation has been unduly delayed or whether any component of an existing IEP (e.g., 60 minutes per week of speech therapy by a bilingual speech therapist) has not been provided to the child. In either case, the advocate should request compensatory education components in the IEP to “compensate” the child for the absence of services that has a negative influence on the child’s educational performance. These components of compensatory education could include extended school year (i.e., summer school) or more intensive related services than would otherwise have been prescribed.
Statistical evidence of under-diagnosed problems of foster children in Illinois is plentiful. For example, a 1997 National SSI Resource Directory lists Illinois in 45th place among the states in the percentage (5.45 percent) of children in foster care who were found eligible for SSI benefits.3
In addition, the Illinois Department of Human Services estimates that 1.7 per cent of children between the ages of birth and three should be eligible for early intervention services, but in Cook County only 1 per cent, which translates into 2,500 less children than the expected number, are receiving such services. In an effort to turn this situation around, DCFS created the Birth to Three Developmental Screening Project. Infant development specialists work under this program to conduct developmental screens and make appropriate referrals for every infant and toddler coming into the system. Every child under the age of three who is placed in Cook County is required to have a developmental screen and to attend any early childhood services to which they are referred.4
Foster parents and caseworkers should seek early intervention screenings of all children under 3 and case study evaluations for children from 3 to 21 when there is any basis to believe that the child has special educational needs. Without them, there can be no diagnosis, no eligibility conference, no IEP and no transition plan for post high school. If a child is receiving early intervention services, the caseworker should make sure that the foster parent requests a case study evaluation when the child is about two and a half years old so there will be no gap between early intervention services and early childhood special education services that begin at age 3.
A foster or surrogate parent has the right to request an impartial due process hearing for a child when the parent disagrees with an action or inaction by the school district. In most cases, however, the foster or surrogate parent may be able to successfully convince school officials to take the desired action through informal discussions, informal mediation, or formal mediation with the Illinois State Board of Education. At the Chicago Public Schools, the Due Process Unit (773 553 1905) may be of assistance. When all else falls, a request for a due process hearing will usually focus the school district on the child's specific needs. Although no foster or surrogate parent should make such a request without intending to follow through with it, often the school district will respond by offering to settle the case on acceptable terms. Under the 2004 amendments, parents may be assessed attorney’s fees if their request for a due process hearing was presented for an improper purpose, such as to harass or cause unnecessary delay.
The 2004 IDEA amendments have changed the due process hearing procedure in numerous ways. The first formal step in the new due process procedure is to serve a due process complaint notice to the LEA and forward a copy to the state educational agency. The non-complaining party must respond within 10 days, addressing the issues in the complaint. If the non-complaining party believes the notice is not sufficient, it must notify the hearing officer within 15 days of receipt of the complaint. The hearing officer then has five days to rule on the sufficiency of the notice. The party requesting the due process hearing cannot raise issues that were not in the notice unless the other party agrees. The new IDEA encourages, but does not require, mediation as a preliminary step to resolve conflict.
The next step in the due process procedure is the resolution meeting. The LEA must convene a resolution meeting with the parents and relevant IEP Team members “who have specific knowledge of the facts identified in the complaint” within 15 days of receiving notice of the complaint. The meeting must include a member of the agency who has decision-making authority. The agency has 30 days to resolve the complaint and if a resolution is reached, the parties must execute a legally binding agreement. They then have three business days during which time either party may void the agreement.
The final step is a due process hearing which may commence 30 days after the notice of complaint is filed. This step occurs only if the dispute was not resolved at an earlier stage.
Although the federal regulations require a hearing officer’s decision within 45 days of a request for a non expedited due process hearing, extensions of time are usually granted by the hearing officer at the request of the parties so that a decision is rarely made within the 45-day period. An expedited hearing may also be requested by the foster or surrogate parents if they disagree with the school district’s manifestation determination (the relationship between the alleged misconduct and the student’s disability). (See also discussion in Section B(8) below). An expedited hearing must take place within 20 days of the request and the decision must be made within 10 school days of the hearing. In many cases, the issues raised by a parent’s due process request are resolved before the pre-hearing conference scheduled by the hearing officer.
The foster parent may also seek a mediation conference at the school conducted by an employee of the Illinois State Board of Education. Even if a foster parent has requested a due process hearing, a mediation conference may still be requested. The surrogate parent should request the hearing officer to postpone the pre-hearing conference until the mediation session has been held to prevent needless work if the matter can be resolved through mediation. A mediation may be more successful when an advocate indicates that a due process hearing will be sought if the mediation is not successful. This gives the district a strong incentive to resolve the dispute. Caseworkers should attend mediation sessions with the surrogate parent. The contracted lawyers, of course, are available resources to negotiate agreed settlements while due process hearings are pending. If an advocate or foster parent wants to request or learn more about the mediation process, he or she may contact the mediation coordinator (217-782-5589) at the Illinois State Board of Education.
The due process hearings are administrative proceedings usually held at the student’s school or the school district’s administrative offices. The hearing officers are usually persons with law degrees or master’s degrees in education-related fields. A hearing officer must not ever have been employed or administratively connected with the school district or special education cooperative involved in the case. Either the school district or the parent is permitted one substitution of a hearing officer as a matter of right, but the request for such substitution must be made in writing to the ISBE within five days after the date of delivery of the notification from ISBE. (23 IL. ADM. CODE 226.635).
Although parents occasionally represent themselves at due process hearings (and sometimes even prevail without the assistance of a lawyer against the school district), their chances of success at a due process hearing are much enhanced if they have a lawyer.
The hearing officer must render a written decision within 10 days after the hearing. If the foster or surrogate parent wishes to appeal the hearing officer’s decision, he or she must do so in either state or federal court within 120 days. Under the federal regulations’ “stay put” provision, the child’s placement at the time of the hearing request generally must be maintained until the hearing officer’s decision (and thereafter during any appeal in court), unless the parent and the district agree to a change during those time intervals. However, if the result of a manifestation determination review is appealed, the new IDEA amendments do not give the child the right to “stay put” in the regular school setting while the appeal is pending.
The human and economic stakes are high when it comes to a child not receiving or receiving inappropriate special education. Many wards have two strikes against them already. If they do not obtain a measure of personal affirmation and self-esteem from their school experience, they are much more likely to strike out (in life and at life). On the economic side, the rule of thumb is that every dollar spent for Early Intervention services saves seven dollars of special education costs. Another sobering fact is that 80% of the inmates of Illinois prisons are high school drop outs. In addition, a compelling reason to meet the special education needs of wards is that in the cases of children for whom return home is not likely, the probability of a ward finding a successful and stable foster or adoptive placement is greatly enhanced if their educational needs are being met.
The process of securing education services for a child begins with a request for a full individual evaluation (FIE) or case study evaluation (CSE). The CSE is conducted to gather information sufficient to permit the eligibility conference (EC) to identify the child’s skills and disabilities and to determine whether the child is eligible for special education and/or related services. Because some schools are slow to respond to requests from foster parents or caseworkers to do a CSE on a child suspected of needing special education or related services, the worker should carefully calendar and monitor such requests. Although foster or surrogate parental consent must be obtained in order for the CSE to proceed, the 60-school day time frame for conducting a CSE begins with the date of the referral, which is defined as the date the parent provides the consent for a CSE. As noted above, all requests for CSEs should be in writing, dated, and a copy kept by the party making the request.
In Chicago, often a school will take the position that a CSE should not be initiated until after an Intervention Assistance Team (IAT) meeting is conducted. The IAT meets with school staff and the surrogate parent to develop modified learning instruction or behavior management techniques to improve the child’s academic performance. If this approach is effective, the child could experience educational success free from premature and needless labeling of a disability. Advocates, however, should know that the IAT process should not be used to deter or delay the processing of a referral for a case study evaluation. The only way that a school can properly not start the 60 school day clock ticking when the foster or surrogate parent requests it and signs a written consent for the evaluation is by notifying the foster parent within 10 days in writing of the denial of the request and the right of the parent to request a due process hearing if they object. If the principal does not so notify the parent, the advocate should push for the completion of the CSE within 60 school days.
Partially in response to the Corey H. case, Chicago school officials are, in addition to encouraging the IAT alternative to CSE, also encouraging an approach known as the School Based Problem Solving Method, which attempts to develop individualized in-school modifications to ascertain if the child’s problems require a CSE. Just as with the IATs, however, a parent always has the right to request a CSE which must be completed within 60 school days unless the principal notifies the parent that the school does not believe that the child has a disability or needs special education services.
As a result of the federal class action known as Marie O. v. Edgar, the Illinois Department of Human Services has implemented the mandate of Part C of IDEA, which provides early intervention (EI) services for all eligible infants and toddlers under age 3. These services, which are essential for developmentally delayed children to reach their full potential, include evaluations; physical, occupational, and speech therapies; vision, social work, nutrition and psychological services; and service coordination. Presently, approximately 7,000 children are receiving EI services in Illinois. Thousands more are estimated to be eligible but have not yet been identified.
In order to be eligible, a child must have a developmental delay that meets the Illinois guidelines, or a diagnosed condition which “typically causes developmental delay,” such as Downs Syndrome, spina bifida, hydrocephalus, genetic/congenital disorders, severe sensory impairments, or disorders related to toxic substance exposure, inborn errors of metabolism or severe attachment disorders.
A caseworker or foster parent who thinks the ward may be eligible for EI intervention should call the local Child and Family Connection Site (CFCS) to refer the child. The CFCS registers and evaluates children, coordinates services, and informs families of their rights. (To find the phone number of your local CFCS, call 1-800-323-GROW).
The child must be given a free evaluation within 45 calendar days of referral. Also, within 45 days the CFCS must develop a written Individualized Family Service Plan (IFSP) which must include a list of the family’s concerns, an assessment of the child’s and family’s needs, a list of all the services the child needs, a list of where, when and how often services will be provided, and a transition plan for when the child reaches the age of three.
Between the ages of 3 and 5, the preschool special education program is called Early Childhood (EC) services. Special education and related services must begin on the child’s third birthday for children served in an EI program or for those children referred for an evaluation 60 school days before their third birthday and found eligible. The test for eligibility is whether the preschool child has a disability, which will adversely affect his or her educational performance.
If a preschool child is found eligible for EC services, whether or not he/she was receiving early intervention services, an IEP should be developed before the child is 3. The services in the IEP should be in effect beginning on the child’s third birthday. Just as with children receiving EI, preschool wards need foster parents (or a surrogate parent if the ward is in a group home or institutional placement) to consent for evaluations and special education placement.
Caseworkers and child advocates need not be reminded of the critical importance of providing appropriate EI and EC services as soon as possible to eligible children. The clock is ticking fast in the early years, and the human and monetary cost of not having these services available at the earliest possible time is momentous.
Class action lawsuits in Illinois have helped to focus attention and resources on children who otherwise might have been denied their rights under IDEA and the Illinois School Code. The B.H. Consent Decree provided, among other things, for DCFS advocacy with school districts on behalf of wards, and the Marie O. case increased the availability of Early Intervention (EI) services to thousands of infants and toddlers. Similarly, the Corey H. case, by successfully challenging the Chicago Public Schools’ failure to follow IDEA’s mandate to educate disabled children with non-disabled children “to the maximum extent appropriate,” has had a significant impact on the provision of special education and related services for wards living in Chicago.
Chicago has historically separated large number of children with disabilities from non-disabled students in self-contained classes or separate schools. Moreover, until recently, many private child care agencies providing group home or other residential placements for wards favored educating the wards in their own isolated educational programs with virtually no interaction inside or outside the classroom with non-disabled students. The CPS’s settlement of Corey H. with ISBE in 1998 involves a school-by-school process over a period of seven years to integrate children with disabilities with non-disabled children. It proposes an extensive monitoring of Chicago’s public schools for compliance with the least restrictive environment mandate of IDEA. This litigation makes it a propitious time for caseworkers and advocates to argue that even the most seriously disabled wards should be educated with non-disabled students.
Integrating non-disabled and disabled students, especially those with severe behavioral problems, is a challenging undertaking. Child advocates of good faith can, and do, often disagree on how or whether it should be done in any particular case. However, caseworkers and advocates should welcome the opportunities that the Corey H. settlement offers for disabled wards to interact with non-disabled children as they receive their special education and related services. Nevertheless, at the same t
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