Earlier this summer, we let you know about two special education bills that had passed the Illinois legislature, which, if signed by the Governor, would provide additional services to some transition students. These bills have both been signed by the Governor, and ISBE has issued an FAQ to address the many questions from the field on how these laws will work in practice.
Public Act 102-0172 (HB 40)
PA 102-72 (HB 40) amends Section 14-1.02 of the School Code, extending eligibility to the end of the regular school year for students whose 22nd birthday falls within a regular school term. “Regular school term” is defined in the guidance as the term that is specified in the regular school calendar as adopted by the student’s serving entity. It does not include extended school year (ESY).
This new provision does not impact personnel licensure or age range grouping requirements (six years at the secondary level). Districts that are unable to meet the age range requirements because of students who will remain in programming must submit an age range deviation application to ISBE prior to implementing a classroom that will be out of compliance. This requirement also applies to non-public therapeutic day and residential facilities. ISBE-approved therapeutic day schools will be approved to serve students with disabilities who turn 22 through the remainder of the regular school year; because residential facilities are approved by other agencies, districts should monitor whether students’ placements are able to serve such students or if a transition to a new placement is needed.
The amendment poses challenges related to the use of state and federal funds. Because federal IDEA funding is limited to those students inclusive of age 21, IDEA funds may not be used to provide services to students after age 21. Reimbursement for room and board, as well as excess cost reimbursement, is not available for students in the over 22 group. Reimbursement for transportation and tuition at private schools, public out-of-state schools, public school residential facilities, and private special education facilities will still be available.
Public Act 102-0173 (HB 2748)
Public Act 102-0173 (HB 2748) adds Section 14-17 to the School Code, which establishes criteria for awarding “recovery eligibility” for students who turned 22 during a period when in-person instruction, services, or activities were suspended, regardless of whether the student aged out, was provided a diploma, or already received compensatory services. In order for a student to be eligible for additional services under this provision, the following conditions must be met:
- The suspension of in-person instruction, services or activities must have been for a period of “three months or more during the school year.” ISBE’s guidance explains this period as three consecutive calendar months during the regular school year. Regular school year does not include summer school or ESY. This period should include, however, “Act of God” days, which were established under Executive Order at the start of the pandemic.
- A student’s birthday must fall within the three-month closure/remote period defined above. For example, if the student’s birthday fell during summer recess 2020, the student is not entitled to services. Similarly, if the student’s birthday fell during the spring of 2020, but less than three months of school remained after March 17, 2020, the student is not eligible, even if the school started remotely in the fall.
- Hybrid learning may count as a suspension of in-person instruction. If a student had any component of their IEP– based services on a remote basis for a three-month period or more, during which time the student turned 22, the student is eligible for services under this Act.
- Change in the location of services, such as vocational experiences out in the community being converted to in-school experiences, does not constitute a suspension of in-person services as long as comparable services were provided in-person.
- Interruption of extra-curricular activities does not count as a suspension of in-person instruction.
- If services were offered in-person, but the parent elected remote learning, the student is not entitled to recovery postsecondary transition services under the Act.
- Students must have remained residents of the school district.
Notice must be provided to each student eligible for additional services under this Act by August 28, 2021. Notice should be delivered via regular mail to the last known address of the student. The notice may include language that states that failure to respond will be deemed a refusal of services, however, ISBE strongly recommends that a 30-day response period be provided to students/parents. Notice should be provided in the native language. If students/parents decline services, the school district has no further obligations under this Act.
Students who are eligible for additional services should receive services comparable to those described on their most recent IEP for the 2021-2022 school year, unless the district, /student, and/or parent agree on new IEP goals that would impact services. While the Act does not require activities not listed as special education services on the IEP to be provided, it is recommended that once enrolled, students have access to the same services and activities as general education students.
IEP Meetings, Goals, and Reevaluations
Because the Act provides for recovery services rather than extended eligibility for special education, districts are not required to hold IEP meetings. Goals from the most recent IEP should be continued. If the previous goals were met, the school staff and student/parents should meet to see if the goals require revision. Reevaluations are not required.
Students in Residential or Therapeutic Day Placements
Districts are not required to resume residential or therapeutic day school programs if the student has aged out or if funding is no longer available for the program. The school staff, district, and student/parent should meet to determine alternative services to meet the existing IEP goals.
FAPE,/ Procedural Safeguards, and Due Process
While ISBE recommends that districts provide FAPE to students who resume services under this Act, the guidance states that the services provided pursuant to this part are “not being provided” in accordance with federal and state provisions that require FAPE. Accordingly, a student or parent is not able to file for due process or engage in other dispute resolution options if there are concerns about the services being provided.
Students eligible for this provision should be re-enrolled into the Student Information System (SIS) as 12th graders. There are instructions in the I-STAR Student Approval Manual for 2021-2022. These students will not be included in child count calculations and re-enrollment will not impact data on graduation and drop out.
Students served under this Act are not entitled to state special education reimbursement. Districts may use state EBF and other local funding sources. Districts also may not use IDEA Part B funds, including IDEA funds provided under the American Rescue Plan. However, there are circumstances when ESSER and GEER funds may be appropriately used, which are explained in the U.S. Department of Education’s May 2021 FAQ on ESSER and GEER.