Illinois Special Education Regulations and Definitions
- Determination of Eligibility
- Definitions of Disability
- Child Find Responsibility
- Referral
- Evaluation Requirements
- Placement
Note: This memorandum is based on Illinois Special Education Rules at 23 Il. Admin. Code 226 et. seq.
How is Eligibility for Special Education Determined?
Section 226.160 Determination of Eligibility
Each school district shall develop written eligibility criteria that comply with the definitions of the disability categories identified in Section 226.75[1].
a) Upon completing tests and any other evaluation procedures an IEP Team must meet to interpret the data. In it eligibility determination, the IEP Team must:
1) Draw upon information from a variety of sources;
2) Ensure that information obtained from all of these sources is documented and considered; and
3) Ensure that a psychological evaluation has been conducted and a recommendation for eligibility has been made by a school psychologist for all children who might suffer from emotional problems.
b) A child cannot determined eligible if the dominant factor is a lack of instruction in reading or math or limited English proficiency and the child does not otherwise meet the district’s eligibility criteria.
c) At the conclusion of the IEP Team’s meeting, a report must be prepared describing its consideration of pre-existing information about the child, all new evaluations, and any other relevant information. The report shall also include:
1) the date of the meeting;
2) the signatures of the participants, indicating their presence at the meeting; and
3) any written majority statement.
d) The school district must provide a copy of the IEP Team’s report to the parent at the conclusion of the meeting. In addition, the district shall provide to the parent, within ten school days after the meeting, another written notice as to the eligibility determination reached. The parent is always entitled to receive copies of any evaluation upon request.
e) A copy of the IEP Team’s report, becomes a part of the child’s temporary record.
f) If a child is determined eligible for special education, an IEP must be developed.
Section 226.170 Criteria for Determining the Existence of a Specific Learning Disability
The determination of the existence of a specific learning disability shall be conducted in accordance with the requirements set forth in the federal regulations at 34 CFR 300.541-543.
How is Disability Defined?
Section 226.75 Definitions
Autism: A developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance.
Deaf-Blindness: Concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.
Deafness: A hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a child’s educational performance.
Emotional Disturbance (includes schizophrenia but does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance): A condition exhibiting one or more of the following characteristics over an extended period of time and to a marked degree that adversely affects a child’s educational performance:
- An inability to learn that cannot be explained by intellectual, sensory, or health factors;
- An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
- Inappropriate types of behavior or feelings under normal circumstances;
- A general pervasive mood of anxiety or unhappiness or depression; or
- A tendency to develop physical symptoms or fears associated with personal or school problems.
Hearing Impairment: An impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance but that is not included under the definition of deafness.
Mental Retardation: Significantly sub-average general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child’s educational performance.
Multiple Disabilities: Concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments (does not include deaf-blindness).
Orthopedic Impairment: A severe orthopedic impairment that adversely affects a child’s educational performance; includes impairments caused by congenital anomaly (e.g., clubfoot, absence of some member, etc.), impairments caused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).
Other Health Impairment: Limited strength, vitality or alertness, including a heightened sensitivity to environmental stimuli, that results in limited alertness with respect to the educational environment, that:
- is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder,
- diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and
- adversely affects a child’s educational performance.
Specific Learning Disability: a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations, including such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. (the term does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.) [105 ILCS 5/14-1.03(a)]
Speech or Language Impairment: A communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child’s educational performance.
Traumatic Brain Injury: An acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative or to brain injuries induced by birth trauma.
Visual Impairment: An impairment in vision that, even with correction, adversely affects a child’s educational performance (includes both partial sight and blindness).
Is the Full Continuum Still Mandated?
Section 226.300 Continuum of Placement Options
Each school district must ensure that a continuum of placements is available to meet the needs of children with disabilities. The continuum shall include at least the following:
a) Regular Classes
The child receives his or her basic educational experience through instruction in regular classes. However, these experiences are supplemented through:
1) Additional or specialized instruction from the teacher;
2) Consultation to and with the teacher by providers of special education and related services;
3) Provision of special equipment, materials, and accommodations;
4) Modification in the instructional services (e.g., multi-age placement, expectations, grading, etc.);
5) Modification of curricular content or educational methodology; or
6) Other supplementary services, such as itinerant or resource services, in conjunction with the regular class placement.
b) Special Classes
The child receives specially designed instruction through a special education class. The child is included in those parts of regular classes which are appropriate.
c) Special Schools
The child receives specially designed instruction in a special school. The child is included in those parts of regular classes which are appropriate.
d) Home/Hospital Services
The child receives services at home or in a hospital or other setting because he or she is unable to attend school elsewhere due to a medical condition.
1) When an eligible student has a medical condition that will cause an absence for two or more consecutive weeks of school or ongoing intermittent absences, the IEP Team for that child shall consider the need for home or hospital services. Such consideration shall be based upon a written statement from a physician that specifies:
A) the child’s condition;
B) the impact on the child’s ability to participate in education (the child’s physical and mental health level of tolerance for receiving educational services); and
C) the anticipated duration or nature of the child’s absence from school.
2) If an IEP Team determines that home or hospital services are medically necessary, the team shall develop or revise the child’s IEP accordingly.
3) The amount of instructional or related service time provided through the home or hospital program shall be determined in relation to the child’s educational needs and physical and mental health needs. The amount of instructional time shall not be less than five hours per week unless the physician has certified to the contrary.
4) A child whose home or hospital instruction is being provided via telephone or other technological device shall receive not less than two hours per week of direct instructional services.
5) Instructional time shall be scheduled only on days when school is regularly in session, unless otherwise agreed to by all parties.
6) Services required by the IEP shall be implemented as soon as possible after the district receives the physician’s statement.
e) State-Operated or Nonpublic Programs
The child is served in a State-operated or nonpublic facility because his or her disabilities are so profound or complex that no services offered by the public schools can meet his or her needs.
How Must Districts Discover Unserved Children?
Section 226.100 Child Find Responsibility
a) Each school district is responsible for actively seeking out and identifying all children from birth through age 21 within the district, including children not enrolled in the public schools, who may be eligible for special education and related services. Mandated procedures:
1) Annual screening of children under the age of five for the purpose of identifying those who may need early intervention.
2) Ongoing review of each child’s performance and progress.
3) Ongoing coordination with early intervention programs
A) Each local school district shall participate in transition planning conferences arranged by the designated lead agency under 20 USC 1437(a)(8).
B) A child is considered “referred” to a school district when he or she is identified in writing by staff of an early intervention program pursuant to 34 CFR 303. Such a referral is effective no later than 60 school days prior to the child’s third birthday, regardless of the date on which the notification takes place. (See Section 226.260 of this Part.)
4) Coordination and consultation with nonpublic schools located within the district.
b) When the responsible school district staff member(s) conclude that an individual evaluation of a particular child is warranted based on factors such as a child’s educational progress, interaction with others, or other functioning in the school environment, the requirements for referral and evaluation set forth in this Subpart B shall apply.
How is a Child Referred?
Section 226.110 Referral
When there is reason to believe that a child may have a disability requiring special education and related services, the child shall be referred for a special education evaluation.
a) Referral Procedures
Each school district has to make known to “all concerned persons” procedures by which an evaluation may be requested. These procedures must:
1) Designate the steps to be taken in making a referral;
2) Designate the person(s) to whom a referral may be made;
3) Identify the information to be provided;
4) Provide any assistance that may be necessary;
5) Identify the process for providing parents with notice of their rights.
b) A referral may be made by any concerned person, including but not limited to school district personnel, the parent(s) of a child, an employee of a community service agency, another professional having knowledge of a child’s problems, a child, or an employee of the State Board of Education.
c) District Response to Referral
1) The school district shall be responsible for processing the referral, deciding what action should be taken, and initiating the necessary procedures.
2) To determine whether the referred child requires an evaluation, the district may utilize screening data and conduct preliminary procedures such as observation of the child, assessment for instructional purposes, consultation with the teacher or other referring agent, and a conference with the child.
3) The district shall determine whether or not to conduct an evaluation and notify the referring party and the parent of the decision and the basis on which it was reached.
d) If the district decides to conduct an evaluation, parental consent must be obtained.
1) Pursuant to Section 14-8.02 of the School Code [105 ILCS 5/14-8.02], the evaluation and IEP meeting shall be completed within 60 school days after the date of referral or the date of the parent’s application for admittance of the child to the public school.
2) The IEP meeting shall be conducted within 30 days after the child is determined eligible. The overall limit specified in subsection (d)(1) of this Section still applies.
3) When a child is referred for evaluation with fewer than 60 days of pupil attendance left in the school year, the eligibility determination shall be made and, if the child is eligible, an IEP shall be in effect prior to the first day of the next school year.
e) If the parent refuses consent for initial evaluation, the district may continue to pursue the evaluation by using the mediation or due process procedures described in Section 226.560 and Subpart G of this Part.
f) If the district decides not to conduct an evaluation:
1) The referring party shall be provided written notice of the district’s decision not to conduct an evaluation and, subject to the requirements of the Illinois School Student Records Act [105 ILCS 10] and 23 Ill. Adm. Code 375 (Student Records), the reasons for that decision; and
2) The parent shall be provided written notice of:
A) The date of the referral and the reasons for which the evaluation was requested; and
B) The reasons for which the district decided not to conduct a case study evaluation.
g) Refuses to conduct an evaluation is due processable.
Section 226.130 Evaluation Requirements
Each local school district shall establish written procedures to ensure that the following requirements are met.
a) Tests and other materials used to evaluate a child:
1) Shall be selected and administered so as not to be discriminatory on a racial or cultural basis;
2) Shall be provided and administered in the child’s native language or other mode of communication, unless it is clearly not feasible to do so;
3) Shall be technically sound and designed to assess the relative contributions of cognitive, behavioral, physical, and developmental factors; and
4) Shall be used in a manner consistent with the instructions provided by their publishers.
b) A variety of assessment tools and strategies shall be used by qualified specialists who are trained and knowledgeable and shall be used to gather relevant functional and developmental information about the child. The assessment shall include information provided by the parent that may assist in determining:
1) Whether the child is eligible for special education and related services; and, if so,
2) The content of the child’s IEP or IFSP, including information related to enabling the child to be involved in and progress in the general curriculum or, if in preschool, to participate in appropriate activities.
c) When a student is suspected of having a specific learning disability, an observation shall be conducted in accordance with Section 226.170 of this Part.
d) Any standardized test that is administered shall:
1) Have been validated for the specific purpose for which it is used; and
2) Be administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the test.
e) Tests and other evaluation materials shall be tailored to assess specific areas of educational need and may not be merely those that are designed to provide a single general intelligence quotient.
f) Tests shall be selected and administered so as to ensure that, if they are administered to a child with impaired sensory, motor or communication skills, the results of each test accurately reflect the factors that test purports to measure.
g) No single procedure and no single individual shall be used as the sole criterion or evaluator for determining whether a child is eligible pursuant to this Part or for identifying an appropriate educational program for a child.
h) The school district shall use assessment tools and strategies that provide relevant information and are sufficiently comprehensive to assist in identifying all of the childâs needs for special education and related services, whether or not commonly linked to the disability according to which the child has been classified.
i) If an assessment is conducted under nonstandard conditions, a description of the extent to which the assessment varied from standard conditions shall be included in the evaluation report.
j) If any needed portion of a case study evaluation cannot be completed due to lack of parental involvement, religious convictions of the family, or inability of the child to participate in an evaluative procedure, the district shall note the missing portion(s) in the child’s evaluation report and state the reason(s) why such portion(s) could not be completed.
k) Each individual conducting a portion of a child’s evaluation shall be qualified in accordance with Section 226.840 of this Part.
Section 226.140 Mode(s) of Communication and Cultural Identification
Before a child is given a case study evaluation, the local school district shall determine the primary language of the child’s home, general cultural identification, and mode of communication.
a) Determination of the child’s language use pattern and general cultural identification shall be made by determining the language(s) spoken in the child’s home and the language(s) used most comfortably and frequently by the child.
b) If the child has a non-English-speaking background, a determination shall be made of his or her proficiency in English. Such a determination shall be conducted in accordance with the provisions of 23 Ill. Adm. Code 228 (Bilingual Education), which specifies the assessment procedures and eligibility criteria for bilingual education programs (see 23 Ill. Adm. Code 228.15).
c) Determination of the child’s mode of communication shall be made by assessing the extent to which the child uses expressive language and the use he or she makes of other modes of communication (e.g., gestures, signing, unstructured sounds) as a substitute for expressive language.
d) The child’s language use pattern, proficiency in English, mode of communication, and general cultural identification shall be noted in the child’s temporary student record, and this information shall be used in the evaluation and in the development and implementation of the individualized education program.
Section 226.150 Case Study to be Nondiscriminatory
Each evaluation shall be conducted so as to ensure that it is linguistically, culturally, racially, and sexually nondiscriminatory. (Please see regulations for parts (a) through (e))
Section 226.710 Policies and Procedures
a) Each local school district, or the cooperative entity of which it is a member, shall develop written policies and procedures conforming to the requirements of subsection (b) of this Section and shall submit these to the State Board of Education for approval, using a format supplied by the State Board. The State Board shall approve those which conform to the requirements of this Section and are consistent with applicable federal and State statutes and regulations. The State Board shall notify districts of any deficiencies that must be remedied before approval will be granted.
b) Each set of policies and procedures shall address the district’s compliance with at least the requirements for:
1) the provision of a free appropriate public education;
2) child find;
3) evaluation and determination of eligibility;
4) Individualized Education Programs;
5) students’ participation in assessments;
6) serving students in the least restrictive environment;
7) the provision of extended school year services;
8) transition of children served under Part C of the Individuals with Disabilities Education Act into preschool programs;
9) serving students who attend nonpublic schools;
10) procedural safeguards;
11) establishing the goal of full educational opportunity;
12) confidentiality of personally identifiable information; and
13) the use of federal matching funds under the Medicaid (Title XIX) or Children’s Health Insurance (KidCare; Title XXI) program to supplement special education programs and services (if the district is participating in one or more of those federal programs).
c) Any revision of a set of policies and procedures shall be submitted to the State Board for approval prior to its implementation.
d) Each set of policies and procedures shall constitute a public document.
Further Definitions:
Least Restrictive Environment (LRE): The setting that permits a child to be educated with nondisabled children to the maximum extent appropriate. (See Section 226.240(c) of this Part.)
Related Services: Transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation (including therapeutic recreation), early identification and assessment of disabilities in children, counseling services (including rehabilitation counseling), orientation and mobility services, and medical services for diagnostic or evaluation purposes; also including school health services, social work services in schools, and parent counseling and training. (See Section 226.310 of this Part.) Related services do not include those performed by licensed physicians or dentists (except for diagnostic or evaluative services or consultation to staff), registered or licensed practical nurses (except when functioning as school nurses), or other medical personnel involved in the provision of ongoing medical care.
Private Placements
Section 226.330 Placement by School District in State-Operated or Nonpublic Special Education Facilities
When an IEP Team determines that no less restrictive setting on the continuum of alternative placements will meet a child’s needs, the child may be placed in a State-operated or nonpublic special education facility. In such a case, use of a State-operated program should be given first consideration. However, the district shall refer the child to the agency or facility which is most appropriate to the individual situation. This determination shall be based upon recent diagnostic assessments and other pertinent evidence and made in light of such other factors as proximity to the child’s home. Evidence of a condition that presents a danger to the physical well-being of the student or to other students may be taken into consideration in identifying the appropriate placement for a particular child.
a) When it appears that a child will require a placement pursuant to this Section, the IEP Team shall invite representatives of potential service providers to assist in identifying or verifying the appropriate placement for that child. If one or more needed representatives cannot attend, the district shall use other methods to ensure their participation.
b) The local school district is responsible for ensuring implementation of the child’s IEP and convening any needed IEP meetings, including the annual review. If the district allows a State-operated or nonpublic school to initiate and conduct the IEP meeting, the district must ensure that the parent and a representative of the district are invited to participate in any decision about the child’s IEP and agree to any proposed changes in the program before the changes are implemented. The district remains responsible for the development and implementation of the child’s IEP and for compliance with the requirements of this Part.
c) No school district shall place any child in a nonpublic special education program, nor shall any such program accept placement of any child with a disability under Section 14-7.02 of the School Code [105 ILCS 5/14-7.02], unless all the following conditions have been met.
1) The program has been approved by the State Board of Education for the school year for which placement is sought.
2) The allowable costs for the program have been established pursuant to Section 14-7.02 of the School Code.
3) The district has made the certification of inability to meet the student’s needs to the State Superintendent of Education required pursuant to Section 14-7.02 of the School Code and the State Superintendent has found the district in substantial compliance with Section 14-4.01 of the School Code [105 ILCS 5/14-4.01].
4) The program has been approved by the State Board of Education for all of the disability categories applicable to the student and requiring services pursuant to the IEP.
5) The program has been approved by the State Board of Education for the age range that includes the age of the student.
6) The district has determined that all educational programming and related services specified on the child’s IEP will be provided by the facility. The use of a nonpublic facility does not relieve the local school district of the responsibility for ensuring the provision of all programming and related services required by the IEP.
7) The school district and the facility have entered into the contractual agreement required by subsection (d) of this Section.
8) The child will receive an education that meets the standards applicable to education provided by the school district.
d) If a nonpublic school placement is chosen, the district and the facility shall enter into an agreement utilizing a format provided by the State Board of Education. The agreement shall provide for, but need not be limited to:
1) The child’s IEP, as developed by the local school district;
2) The amount of tuition that will be charged;
3) Assurance that the special education staff of the placing school district may inspect the private facility and confer with the staff at reasonable times; and
4) Assurances that the placement will result in no cost to parents.
e) When a nonpublic facility is used, the school district shall be responsible for the payment of tuition and the provision of transportation as provided by Section 14-7.02 of the School Code. (See also Section 226.750(e) of this Part.)
f) Each local school district shall be responsible for monitoring the performance of each State-operated or nonpublic facility where it has placed one or more eligible students, to ensure that the implementation of each IEP conforms to the applicable requirements of this Part.
Section 226.340 Nonpublic Placements by Parents
Except as provided in 34 CFR 300.403, a parent who elects to place a child in a nonpublic school or facility without the consent or referral of the local school district is not entitled to have the district pay for that placement if the district made or attempted to make FAPE available to the child.
a) Disagreements between a parent and a school district regarding the district’ provision of an appropriate program for a particular child shall be resolved by means of the due process afforded pursuant to Subpart G of this Part.
b) No child who is placed into a nonpublic facility by his or her parent(s) without the consent or referral of the local school district has an individual right to receive the special education and related services that the child would receive if enrolled in the district. Instead, a district’s services to such children are subject to the provisions of Section 226.350 of this Part.
Section 226.350 Service to Children in Private Schools
a) To the extent consistent with their number and locations in the State, provision must be made by school districts for services to children with disabilities who have been enrolled in private schools by their parents.
1) Each school district shall consult annually with representatives of private schools in light of the funding available for serving their students, the number of such students, their needs, and their respective locations to decide:
A) Which children will receive services;
B) What services will be provided;
C) How the services will be provided; and
D) How the services provided will be evaluated.
2) Each school district shall give representatives of private schools a genuine opportunity to express their views regarding each matter that is subject to the consultation requirements of this subsection (a).
3) The consultation required by this subsection (a) shall occur before the school district makes any decision that affects the opportunities of private school children with disabilities to participate in services.
4) The school district shall make the final decisions with respect to the services to be provided to eligible children who are enrolled in private schools.
5) The school district shall maintain a written record of actions taken in compliance with the requirements of this subsection (a).
b) The services provided by a school district to children with disabilities enrolled in private schools shall be comparable in quality to the services provided to eligible children enrolled in the district. “Comparable in quality” means provided by similarly qualified personnel.
1) Eligible students in private schools may receive a different amount of services than eligible children in public schools.
2) No individual child must receive a specific service or receive the same amount of service the child would receive in a public school.
3) For any child served pursuant to this Section, the school district shall develop a service plan that identifies the services that the district will provide to the child. The plan shall meet the requirements of Section 226.230 of this Part and shall be developed, reviewed, and revised consistent with Sections 226.200, 226.210, 226.220, and 226.530 of this Part.
c) Services may be provided on site at a child’s private school, including a religiously affiliated school, to the extent consistent with the provisions of IDEA (20 USC 1413(d)).
d) Transportation to and from a site other than the private school shall be provided if necessary for a child to benefit from or participate in the services offered by the district at that site. This includes transportation from the service site to the private school or to the child’s home, depending upon the timing of services.
e) When a student receives services from a school district pursuant to this Section, the procedural safeguards described in Subpart F of this Part shall be available only with respect to complaints that the district has failed to fulfill the requirements of this Section. The due process requirements of Subpart G of this Part shall not apply.
[1] Emphasis has been added liberally throughout this document. Language from the regulations is paraphrased to enhance readability and eliminate the need form cross-references. Citations corresponding to the actual provisions are accurate, so any reader who desires more detail is referred to the ISBE web site at http://www.isbe.net.