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Attorney focused on representing school districts, colleges, and universities.

Governor Pritzker recently signed two bills into law, expanding accessibility and flexibility within special education. The first, Public Act 102-0703 (House Bill 4365), allows IEP teams to place students at non-ISBE-approved facilities and the second, Public Act 102-1072 (House Bill 5214), requires school districts to notify parents of their right to an interpreter during various special education proceedings. Both new laws went into effect immediately. 

Continue Reading Governor Pritzker Signs Two New Special Education Laws Regarding Placement and Interpretation Services

The Office for Civil Rights in the Department of Education recently issued a new Fact Sheet. The Fact Sheet repeats prior guidance that “the responsibility for schools to comply with Section 504 continues regardless of how schools provide education: virtually, in-person, or with a hybrid learning model.” Accordingly, the guidance provides that 504 teams should meet if needed to address changes in student needs related to the pandemic as well as to determine whether compensatory services are warranted. The OCR Fact Sheet follows the Q&A issued by the Office of Special Education and Rehabilitative Services last fall, which also called for IEP teams to make compensatory services determinations for students who missed services due to the pandemic.

Continue Reading OCR Issues Fact Sheet on Providing FAPE During the COVID-19 Pandemic and Addressing the Need for Compensatory Services Under Section 504

In Illinois, as universal masking is fading, the next question looms: what will the end of universal masking mean for staff and students with disabilities who are at high risk? Across the county, issues regarding universal masking have been hotly litigated. In this post, we focus on the issue of mask mandates as a reasonable accommodation for disability needs, and to date, the decisions paint a complicated picture. Districts planning or implementing mask optional plans should consider the needs of students and staff with disabilities who request continued masking of those around them to preserve their access to the district’s educational programs.

Continue Reading Are Mask Mandates a Reasonable Accommodation?

The U.S. Department of Education, Office of Special Education and Rehabilitative Services (OSERS) published a Question and Answer document to advise school districts on returning to in-person instruction. The OSERS Q&A provides guidance on special education issues, including IEP meetings, extended school year services, mental health, medical conditions, transition services, and placement. While much of the document reiterates long-standing law, OSERS does provide some new guidance specific to COVID-19 transitions. We will be releasing a series of blog posts focused on those new issues.

Continue Reading New OSERS Guidance on Reopening, Compensatory Services

A recent OCR decision out of Wyoming is a reminder to school districts of their Child Find obligations—including during remote instruction. In Teton County School District, Wyoming, OCR found in favor of the school district who responded to a doctor’s note diagnosing anxiety and depression with immediate supports and initiating an evaluation. The case illustrates the perils of informal communication about disabilities but confirms that not every reference to a disability triggers the obligation to evaluate.

In the Wyoming case, there were several red flags that unfolded for school personnel.

Continue Reading OCR Decision Highlights Common Child Find Red Flags

While much of the talk about Biden’s education agenda has quickly turned to who he will appoint to replace Betsy DeVos and how he will manage the COVID-19 pandemic, both critical issues for sure, we wanted to highlight Biden’s agenda related to special education. In his campaign, Biden made several important statements about his aims on this topic. Most importantly, he supports full funding of the Individuals with Disabilities Education Act (IDEA). The law provides for federal funding up to 40% of the average per pupil expenditure, but actual expenditures fall far short of that mark. The federal contribution is currently at about 14-15% or $13 billion. Additionally, his proposals include:

  • Increased funds to help teachers earn additional certification in high demand areas like special education. Given the shortage of special education teachers here in Illinois, additional support for teachers seeking this credential could help schools fill open positions and ensure student needs are met.
  • Double the number of psychologists, counselors, nurses, social workers, and other health professionals in schools so students have access to mental health care and triple Title I funding. While these goals are not directed specifically to special education, this type of additional support for students could ease the burden on special educators and related services providers.
  • Funding for early childhood development experts in community health centers and pediatrician offices with a high percentage of Medicaid and Children’s Health Insurance Program patients. Again, while this is not a special education initiative, it could boost child find and assist families in accessing early intervention services.


Continue Reading What Will a Biden-Harris Administration Mean for Special Education?

OCR recently published a Q&A document providing expectations for compliance with civil rights laws during the pandemic. While OCR is not responsible for enforcing the IDEA, it is responsible for Section 504. Because students with IEPs are generally also protected by Section 504, the new guidance is applicable to students both with Section 504 plans and with IEPs. At the same time, OSEP published a Q&A document providing guidance specifically related to the IDEA. Much of the guidance will sound familiar, but you may find a few surprises.

Continue Reading OCR and OSEP Issue New Q&As related to Special Education in the Current COVID-19 Environment

Now that many of us have been doing some form of remote learning for close to 7 months, we are starting to see hearing officers and state agencies weigh in to resolve complaints related to the appropriateness of remote special education services. While we have not yet seen any Illinois decisions, a review of decisions from other states may shed some light on trends and approaches. Read on for a sample of recent cases and takeaways that may be relevant to your school.

Participation in Remote Learning

In a due process case in Washington, DC, the student had previously been residentially placed but transitioned to a therapeutic day school in January 2020. The student was making some progress until schools were closed due to the pandemic but did not participate in the school’s remote learning program. While the student’s guardian advocated for the student to return to the residential placement, the student, district, and therapeutic school recommended continuing at the day school. Given that a month had passed between the hearing and the decision, the hearing officer directed the IEP team to meet and determine if the student had been participating in the remote program. If so, that would demonstrate that the day school was his least restrictive environment. But if the student had not been participating, a residential placement should be made.

Schools should take and document steps to support student engagement in remote learning. An IEP meeting to develop new approaches may be warranted to avoid a potential need for compensatory services and/or a more restrictive placement.


Continue Reading What Are Hearing Officers Saying about Remote Learning?

Since the beginning of the COVID-19 pandemic, no formal flexibility has been granted to schools to deviate from State and federal special education requirements. However, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) gave the U.S. Secretary of Education Betsy DeVos the power to appeal to Congress if she believes that waivers should be made to provide flexibility regarding the Individuals with Disabilities Education Act (IDEA). Earlier this week, Secretary DeVos made her recommendations to Congress, declining to seek significant flexibility for IDEA provisions. Secretary DeVos only requested limited waivers related to pre-k evaluations.

Continue Reading Secretary DeVos Rejects Extensive Waivers to Special Education Requirements, Leaving Core of IDEA Intact

Just as remote learning has become the new normal, we turn to planning for ESY and the 2020-21 school year. While the timeline for returning to school buildings remains uncertain, the eligibility of some students with disabilities for support over the summer remains clear. How should schools think about ESY eligibility this school year? We recommend starting with the same standards that have long governed ESY eligibility.

Under IDEA, the IEP team determines whether a student needs special education and related services beyond the normal school year to receive a free appropriate public education (FAPE). ISBE guidance from 2001 reviews the case law related to ESY eligibility and identifies the following key factors for IEP teams to consider:

  1. regression/recoupment;
  2. the nature of the disability and degree of impairment; and
  3. emerging skills, and areas of learning crucial for independence.


Continue Reading “Extended School Year” When the Regular School Year Wasn’t Finished