FAQ For Institutions
According to current case law in Illinois, unless it is specified in the divorce decree or parenting agreement that the non-custodial parent retains the right to educational decision-making related to their child, then non-custodial parents do not have a right to dictate educational arrangements for their children. However, non-custodial parents do retain the right to receive educational information regarding the child, and the right to mental health information until the child turns 12 (at which time the child has to authorize release of information to their parents). Similarly, a stepparent, unless they have adopted or have court-ordered guardianship of the child, has no right to educational decision-making for their stepchild, and they also do not have a right to access any information regarding that child.
Some school districts get worried that releasing “personally identifiable information” (confidential mental health or medical information) to staff members may make them at risk for liability. However, current federal and state laws indicate that this information can be released to “school officials” who have “legitimate educational interests.” Clearly, a child’s own teachers would be determined to meet this criteria.
It is our belief that the more information staff members have regarding a student, the less liability they ultimately are at risk for facing should the parents later dispute the educational services which are provided to their children. And so in accordance with that philosophy, the child’s teachers should, in the least, get a copy of their latest entire IEP and should also receive a copy of the latest case study evaluation that was conducted for them as well. While this is a lot of information for teachers to digest, ultimately it could lead them to a better understanding of the child and can help them provide appropriate classroom accommodations as needed.
In accordance with “Brittany’s Law” (P.A. 93-1079), by March 1, 2005, all school districts in Illinois were required to adopt policies and procedures to allow students with disabilities who had completed four years of high school to participate in graduation ceremonies. The law, however, did not specify a requirement for those students to receive a diploma from a school district. In fact, in most cases if a student accepts a regular high school diploma from a school district, then it prevents them from receiving any further special education services, which are afforded to them until their 22nd birthday. Therefore, it is our recommendation that school districts provide students wishing to “walk through” their graduation ceremony with their class with a certificate of completion, not a diploma. Please see our Brittany’s Law memo for more information.
Ever since the reauthorization of the IDEA in 2004, it appears that legislatures are being more sympathetic to the leniency school districts have when it comes to disciplining students who are considered a threat to other children. The 45-day alternative placement was extended to 45 school days, and the legislature added a third reason (in addition to bringing drugs or weapons to school) for the placement to include when a student inflicts “serious bodily injury” to another student or staff member.
In addition, there is a section in the federal regulations which allows a school district to extend the 45-day alternative placement “if the LEA believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.”
There has been a lot of recent litigation in Illinois regarding this topic. Right now, as the courts have interpreted the law, it is the county which ordered the placement which is responsible for paying all costs of a residential drug treatment facility for a regular education child. However, for children receiving special education services, then it is the residential school district in which the child resides which is responsible for paying for the services.
While this has been the recent interpretation of the law by a few appellate courts in Illinois, there is a currently pending Senate Bill which changes the law to place the burden of funding all educational services, even for regular education children, back on the residential school district. Senate Bill 844 has been accepted by both the House and Senate, and is currently awaiting being passed up to the Governor for approval. We will keep our clients apprised as to the status of this bill.
If you’ve never had a due process request filed against you before, the process can be overwhelming, as the timelines for responding to such a request are quick. Within five days (and that’s calendar days, not school days) you need to fill out your own District Request for an Impartial Due Process Hearing Officer form, attaching it with the initial parent request.
In addition, within 10 calendar days after receiving the complaint you must file a formal Response to the Due Process Complaint, which includes specific requirements in compliance with the federal regulations. There is also the requirement for a district to hold a Resolution Session (or, in the alternative, mediation) with the parents within 15 calendar days of receiving the complaint.
It is our recommendation that you hire legal counsel to help you respond to these requests if you have never done so before, as any procedural errors on your part could lead to the parents prevailing. It is also a good idea to hire attorneys who are experienced in the field of special education to represent you – your general labor attorney will not have the knowledge and experience necessary to appropriately navigate this area of litigation, and may end up causing more conflict than necessary in these situations.
No, and in fact doing so without a valid court order from a judge is illegal in Illinois. Many domestic relations attorneys are not familiar with the confidentiality laws in Illinois and therefore are unaware that it is illegal to subpoena any school records which contain psychological or mental health records of children in Illinois. A court order by a circuit court (county) or district court (federal) judge is required for disclosure of these records, and so you should refuse to provide such documents until that order is provided to you.
Most private regular education schools in Illinois are not subject to the statutes or regulations in Illinois pertaining to educational facilities. However, they do still have to conform to the confidentiality requirements related to children. In addition, if your facility is accredited by any organizations such as the North Central Association (NCA) or the Independent Schools Associations of the Central States (ISACS), then you are required to adhere to their accreditation requirements, some of which mandate that the schools follow certain state laws. If you are an ISBE certified non-public special education facility in Illinois, then you do have to adhere to parts of the School Code and regulations pertaining to approval requirements.
As indicated above, private schools do not need to abide by the School Code or any other laws regarding the suspension or expulsion of students, and so you can create your own policies and procedures regarding disciplinary actions against children. You are allowed to suspend, expel or deny re-enrollment at your will, but make sure that these decisions are make within the parameters of your policies and procedures.
The national pandemic of recent school shootings, and the controversy of the sharing of confidential mental health information in the wake of the Virginia Tech incident, has created debate among mental health professionals, educators and legislators regarding the balance of protecting confidential mental health information versus warning personnel when there is the threat, however seemingly inconsequential, of harm to other students.
There are some rare exceptions to the Illinois Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1 et. seq.), and one of them is a professional’s duty to warn others about potentially dangerous conduct of another. In fact, professionals are required to do so by law if the harm is “reasonably foreseeable,” which includes:
- The patient has made specific threats of violence;
- To a specific and identified victim
- There is either a physician-patient relationship or a “special” relationship between the patient and the victim; and
- The disclosure must be to the extent necessary to allow the victim to avoid harm and allow the authorities to intervene.
While these laws only apply to mental health professionals working with children (which include guidance counselors, social workers and school psychologists), ISBE has issued guidance on the issue with its “Safe at School: A Resource Manual for Self-Assessment, Planning and Training to Improve School Safety,” which recommends that all school districts create policies regarding the reporting of any threats of violence or harm to staff or students.
For more information regarding this topic, please see our memo Duty To Warn – When Can I Break Confidentiality?
Parents can get very emotional about their child’s education, and sometimes this presents itself in the form of anger, especially in the case of an unstable parent. There are a number of options you can take in dealing with emotional parents, but our first recommendation always is to limit the parents’ contact with staff members to those who are able to effectively communicate with (and de-escalate) the parents. Sometimes this means that a school principal or other administrator has to intervene in order to give both sides some breathing room. The administrator should give the parents firm instruction as to what conduct will and will not be tolerated. If the parent continues to be verbally abusive or even physically threatening, then the police should be contacted. If necessary, a temporary restraining order (“TRO”) can be obtained against a parent to prevent them from speaking to any school personnel or being present on school property.
Current Illinois regulations (23 Ill. Admin. Code 226.50) do not mandate that you adopt the IEP of the former school district. However, districts are required to “implement services comparable to those described in the IEP from the former district” during the time period prior to your district holding a new IEP meeting for the incoming child.
This requirement for comparable services was added during the 2004 IDEIA reauthorization, and since then various states have been litigating the definition of “comparable services.” While Illinois has yet to publish a decision regarding this issue, OSEP regards this as being services that “approximate, as closely as possible, the old IEP,” (Letter to Campbell, 104 LRP 4208) and other state educational agencies have agreed with this definition.
ISBE’s guidance on the topic of whether to enroll immigrant children when residency is at question is “enroll first, ask questions later.” For regular education students, the rule is that if the child is living with any adult (not just their parent or legal guardian) who has “accepted responsibility for the pupil and provides a fixed nighttime abode for the pupil, then the pupil is a resident of the district in which that adult lives, as long as the pupil is not living with the adult for access to the educational programs of the district.” (105 ILCS 5/10 20.12b). In addition, immigration status of the parents have no bearing on the rights of the children to receive educational services (Plyler v. Doe, 457 U.S. 202)
For special education children, the School Code requires the adult to have legal guardianship of the child in order for the child to be considered a resident of their local school district. However, if they are living temporarily with someone who is not a legal guardian and they are not a ward of the state, then the child could be considered homeless in accordance with the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11301) and the Illinois Education for Homeless Children’s Act (105 ILCS 45). In addition, with 2004 reauthorization of the IDEA, the federal government added “highly mobile children, including migrant children,” into the definition of Child Find responsibilities of districts.