Need an Answer? Our FAQs Will Help
In general, a Section 504 Plan only allows children with disabilities equal access to educational services, while an IEP provides more protections for children by mandating that the child benefits academically from those services.
For more details regarding information on Section 504s and IEPs, please refer to our Guide to Educational Services for Ill and Disabled Children, which goes into more detail about 504s and IEPs.
If you have a child in regular education who is struggling academically and believe he or she may be eligible for special education services, the first step is to request (in writing) a full case study evaluation (“CSE”). This CSE, which provides testing in eight areas or “domains” (academic achievement, functional performance, cognitive functioning, communication status, health, hearing/vision, motor abilities and social/emotional status) must be performed by school district personnel, at no cost to the parents, prior to a child being found eligible for special education services. WTH provides a CSE Request Form Letter, for your convenience.
After the CSE is completed, an Individualized Education Program (“IEP”) meeting is held to review the results of the evaluations. If the team (which includes parents as decision-makers, and can also include private service providers) determines, based on the testing data, that your child is eligible for special education services, they will draft an educational plan (an IEP) which includes specific goals, accommodations, modifications and related services which the school district must provide for your child. The team will also determine a starting date which special education services will begin at this meeting.
According to the Individuals with Disabilities Education Act (“IDEA”), there are currently 13 categories under which a child can be found eligible for special education services. Those categories are:
- Mental Retardation
- Hearing Impairment
- Visual Impairment
- Speech or Language Impairment
- Visual Impairment
- Emotional Disturbance
- Orthopedic Impairment
- Autism (including all Autism-Spectrum Disorders)
- Traumatic Brain Injury
- Other Health Impairment (including ADHD)
- Specific Learning Disability
- Deaf-Blindness, and
- Multiple Disabilities
Parent advocates are trained professional without law degrees who can advocate on behalf of parents in attending IEP meetings and various other educational meetings. Advocates are usually hired to fine-tune IEPs (help draft appropriate goals, accommodations, etc.) and to help parents learn the special education process. In many cases, advocates are former social workers, teachers, parents of children with disabilities or disabled individuals themselves who are educated on the world of education and can help parents find appropriate educational and community resources to help their children toward independence. Advocates usually charge less hourly rates than attorneys, and so they can be a less expensive alternative to hiring an attorney if your conflict with the school district is relatively minor and can be solved in a reasonable amount of time.
However, if you are in a situation where you have to file for due process against your school district, then advocates may not be the right answer. The courts have ruled that parents cannot recover attorneys fees if an advocate represents them at due process hearings (unless they are under direct supervision by managing attorneys). As such, it is most times more prudent for parents to have attorneys represent them in due process and other litigation matters.
It can be difficult to assess on your own whether you can handle a special education dispute on your own, or whether it’s time to hire an attorney to advocate on your behalf. Our handout “Do I Need an Attorney?” can help you answer this question.
If you find that it is time for you to hire an attorney, how do you decide which attorney is right for you? This Guidelines for Choosing An Attorney for Special Education Representation published by the Illinois Attorney General’s Office, can give you clues as to what to look for when interviewing potential attorneys.
The “Illinois approved list,” as it is referred to in special education matters, is the list of private (non-public) schools in Illinois which are approved by the Illinois State Board of Education to serve children with various disabilities. If your local school district and/or special education cooperative is not able to appropriately educate your child, or if your child is in need of a more restrictive or intensive services such as a therapeutic day school or residential placement, then choosing a school on the approved list is the next option. The approved list can be found on ISBE’s Harrisburg Project website located at http://www.hbug.k12.il.us/pfs. The site includes a search engine, which allows you to search for a day or residential placement based on the child’s disability, distance from your home or by facility name. Parents also have the choice of choosing other, non-approved special education facilities around the country. However, if they chose to do so, then the likelihood that their local school district will pay for the placement decreases significantly.
Nearly 1 in 6 children report are now being bullied each year; however the actual number of children being bullied is estimated to be a lot higher. The impact of this bullying not only impacts the victims, but society as a whole in general. According to research conducted by Fight Crime – Invest in Kids (located at http://www.icvp.org/downloads/FCIKBullyingReport.pdf), nearly 60 percent of boys who are classified as bullies in middle school are convicted of at least one crime by the age of 24, and 40 percent of them are convicted of 3 or more.
Taking action to prevent or stop these bullying behaviors at an early age might not only help your child and other victims, but could positively impact the life of the aggressor as well. There are a number of remedies you can take to insure that your child is not mercilessly taunted and harassed by other children.
Illinois passed its first bullying law (105 ILCS 5/27-23.7) in late August 2007, which mandates all public school districts by the end of February 2008 to draft a written policy on bullying, and to communicate this bullying policy to parents and students on an annual basis.
The first step is to hold a meeting with your child’s teacher and school principal to discuss the situation and come up with a plan of action for how the school is going to prevent further harassment. If your child continues to have problems after this meeting, then you may want to consider taking legal action against the district or meeting with the school district’s board of education to further discuss the problem.
My child has been suspended from school and the school is recommending he be expelled. Can they do that?
The answer depends on whether or not your child is eligible for special education services. If your child is not in special education, then a school district can expel a student for “gross disobedience or misconduct.” However, the expulsion only can take place after an expulsion hearing (in front of an administrative hearing officer) or a meeting before a school board, where the parents are allowed to “discuss their child’s behavior.” If the school district continues to recommend expulsion, the time limit for the expulsion is two calendar years, and the length of expulsion should be considered on a case-by-case basis. The expulsion may include expulsion from school, all school activities and a prohibition against being present on school grounds.
If your child does receive special education services, then before expelling your child the school has to hold an IEP meeting, also known as a Manifestation Determination Review (“MDR”), to determine whether the behavior leading to the recommendation for expulsion was a result of his or her disability. If the team finds that the behavior was a manifestation of the disability, then the team has to redraft a Behavior Intervention Plan for your child prior to expulsion. If the team determines that the behavior was not a result of the student’s disability, then the team can continue with its recommendation for expulsion. However, as with regular education children the school has to hold an expulsion hearing (at the parents request) and/or school board meeting prior to finalizing the determination for expulsion. If the board continues its recommendation for expulsion, the same rules apply to the terms and length of the expulsion as do for regular education children. If you disagree with the board’s decision to expel your special education child, then you have a right to file for a due process hearing and, depending on the child’s behavior which resulted in the expulsion, you may be able to invoke “stay put” power to keep your child in the regular education environment during the pendency of the hearing.
In Illinois, many school districts now have school resource police officers, or liaison police officers who are affiliated with your town’s local police department, actually on school grounds during regular school hours. If this is the case with your junior high or high school, then your child’s Fifth Amendment rights (also known as Miranda rights) still apply. Those rights include the right to remain silent (not answer questions), the right to representation by an attorney (and free representation, if your family cannot afford it), and the right to stop answering questions at any given time during an interrogation. In addition, students have the right to refuse to be searched, either personally or their property (including school lockers in some instances), and have a right to call their parents to have them present for any questioning conducted by police or school personnel. However, the school does have a right to have the child arrested and transferred to the local police station prior to the parents arriving at the school. The advise we give our juvenile clients is never to speak to anyone until their attorney is present. Because of their age and lack of experience, juveniles are often persuaded by school personnel and cops alike to make statements which might not necessarily be true. The best way to combat any potential ammunition that might be used in court (or an expulsion hearing later) against a juvenile is to prevent the school or police from having a chance to use an admission to the crime.
Again, the answer to this question depends on whether your child is or was receiving special education services from the school district.
If your child is not qualified for special education services, and you decide to either homeschool them or place them in a private school, then there technically are no requirements for enrolling or registering them with your local school district or the Illinois State Board of Education. However, you may do so if you chose.
If your child is qualified for special education services and you wish to place them in a private day or residential school for children with special education needs, our recommendation is that you do notify your school district at least 10 business days prior to the placement. We include the following Unilateral Placement Form Letter for you to use as a template for your notice to the school district. Giving the school district this notice preserves your right in the future to request reimbursement from the school district for the entire amount or a portion of the placement.
The school district wrote me a letter claiming we're not a resident of our local school district and says I have to pay for tuition. What can I do?
Residency laws in Illinois do allow for a school district to charge tuition to parents of children who are not legal residents of their local school district. However, often times when a child’s parents are not married and the child spends time with both parents, schools become confused – or self-interested – and bill for tuition inappropriately. You have a right to appeal the school board’s decision to charge for tuition by requesting a residency hearing or other venue.
What type of independent evaluation should we secure for our child and how do we chose an appropriate independent evaluator?
If you believe your child is having difficulties in any area of growth, including motor skills, academic skills, social skills or may be having emotional difficulties, then it is our recommendation that you receive a private, independent evaluation from a properly trained and accredited person who specializes in the treatment of adolescents. In most cases, insurance companies will pay for the costs associated with such evaluations.
The type of evaluation your child should receive depends on the deficits he or she may be exhibiting. If your child is having fine motor difficulties, then an occupational therapy evaluation is appropriate. If it is academic issues that your child is encountering, then a psychological or neuropsychological evaluation is what he or she needs. If it is emotional issues, then a psychiatric evaluation is most appropriate.
Choosing an appropriate evaluator is the difficult part. In our experience over the past decades, we have found that you want to find an evaluator who:
- Is willing to take the time necessary (sometimes full days) to fully evaluate your child and get to know your family;
- Is willing to talk to school personnel regarding their findings and conclusion of the child and attend IEP meetings to discuss their evaluation results;
- Is willing to make specific educational recommendations, including placement recommendations, to the school district, and
- Is willing to observe proposed educational placements for your child to determine whether they are appropriate.
Using these suggestions for interviewing purposes will help you weed out a number of evaluators who are not willing to go the extra mile for you and your child.
Illinois currently has a compulsory attendance law (105 ILCS 5/26), which requires attendance in public school for children between the ages of 7 – 17. There are some exceptions to this section in the school code, including children who attend a private school (or are homeschooled), cannot attend school due to medical or mental illness, and are absent due to attendance at a job or religious event.
Unfortunately, there are many instances when school districts use this mandatory attendance law to scare parents into thinking that they or their child will be arrested and that the school district has “no choice” but to refer them for truancy to their regional office of education. This is not necessarily the case.
There are many circumstances which occur in family situations which sometimes prevent a child from attending their local school for a consecutive period of days. We suggest contacting your local school superintendent and the truancy officer assigned to your case to discuss with them the reasons why your child has been missing school. Most truancy cases are dropped before proceeding to truancy hearings as a result of these informal means. Should the matter continue on a more formal route, you have the right to be represented and present evidence in your defense at the truancy hearing. Should you receive an unfavorable ruling as a result of the truancy hearing, the matter can be further appealed into state court.
Receiving accommodations, such as extra time or transcription for written evaluation sections, for nationalized standardized tests can be extremely difficult. But for any of these organizations, there is an application or eligibility form for accommodations that you can submit prior to your child’s testing date. In most cases, in order to secure these types of accommodations, your child has to have a documented medical or psychological condition which prevents them from being able to take the test under typical conditions. You will most likely need to produce a recent letter or evaluation from a certified doctor to verify the diagnosis, documentation from your local school district regarding special education services your child has received in the past, and your child will need to write their own statement indicating how they believe their disability impacts their ability to take tests. After filling out the application for accommodations, the organizations will then inform you whether or not you qualify for accommodations. If you are denied accommodations, there is an appeal process that can be performed in most cases.
I am a non-custodial parent. What rights do I have to receive information about their education and make educational decisions for my child?
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.