The U.S. Department of Education (ED) recently issued a “Supplemental Fact Sheet” updating its earlier Questions & Answers and Fact Sheet on coronavirus disease 2019 (COVID-19) and clarifying that schools should not refrain from providing distance learning out of fear that they cannot adequately serve students with disabilities. In the updated guidance, ED advises school districts that the delivery of a free appropriate public education (FAPE) remains required but may look different when schools are physically closed. The guidance also addresses the impact of school closures on special education timelines, including urging schools “to work with parents to reach mutually agreeable extensions of time.” School districts should keep the fact sheet in mind when crafting general distance learning options and specific services and supports for individual students.

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On March 18, 2020, ISBE issued guidance on providing special education during the current mandatory two-week school closure. While the guidance responds to some of the questions arising from this unprecedented situation, neither the U.S. Department of Education nor Congress has provided flexibility with respect to IDEA rules, and the State is correspondingly constrained. As we described in our last post, the big picture message is to do your best to provide services to students with disabilities and meet applicable deadlines. Be creative, document your efforts, and expect compensatory education claims once we get back to school. Below are the key takeaways from ISBE’s guidance.

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In the wake of Governor Pritzker’s recent order requiring all Illinois schools to close between March 17 and March 30, many schools and school districts have been left guessing how to best serve students with disabilities and comply with IDEA timelines during the closure. While forthcoming guidance from ISBE and the U.S. Department of Education may provide additional flexibility and clarity, for now we can share the following update to ease your mind a bit. In summary, schools can safely consider that all special education deadlines calculated using “school days,” including evaluations, are postponed. Guidance is limited with respect to other timelines and so we recommend that you contact legal counsel to address how your school district will proceed with those calculations.

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Is your school threat assessment team in place and ready to act in order to meet upcoming legal deadlines? Does it understand the interaction between threat assessments and special education evaluations? Is it adequately prepared so that your school will not be the next one in the media spotlight for a threat assessment gone wrong? In this post, we highlight three key issues involving threat assessment and describe upcoming opportunities to learn what you need to know to properly conduct threat assessments going forward.
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After receiving and reviewing questions and concerns from stakeholders regarding the practical implications of its emergency rules on the use of time out and physical restraint, the Illinois State Board of Education (“ISBE”) released a Guidance and FAQ document aimed at providing clarification. The Guidance, which ISBE issued in collaboration with the Illinois Counsel of School Attorneys (“ICSA”), explains what does and does not constitute a time out—one of the issues that has caused the most confusion. The Guidance also provides other needed definitions and answers various practical questions related to alternative behavioral supports and the application of time out and physical restraint. Because the Guidance document is extensive, we have highlighted some of the more important and nuanced questions that may be of interest to your school or district below.

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Within the last few weeks, there have been significant changes to the Illinois State Board of Education (“ISBE”) rules regarding time out and physical restraint. First, ISBE issued emergency rules, then it issued amendments to the emergency rules, and finally, on December 9, 2019, ISBE published proposed permanent rules on the use of time out and physical restraint. We have heard and raised numerous questions and concerns regarding the practical implications of the emergency rules in the classroom. ISBE’s proposed permanent rules provide some additional clarity. But the work to overhaul policies and procedures and train staff on the rules is significant. To help with that work, the following chart sets forth the key differences between the amended emergency rules and the proposed permanent rules. We also flag several new provisions in the proposed rules to assist you in understanding and preparing for the likely upcoming changes.

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After pushback from Illinois school districts, an amendment to the Illinois School Code’s special education provisions will alleviate some, but not all, frustrations related to a recent law that added significant procedural requirements for special education teams. Senate Bill 460 (Public Act 101-0598) amended the Children with Disabilities Article of the School Code to delay the requirement that special education teams provide a child’s parent or guardian with copies of all written materials to be considered by the student’s IEP team three school days prior to the IEP meeting. Special education teams should be aware of what changes are required now and in the future based on these recent changes.  
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When you get a request for a service animal in school, your mind may race with concerns. What if students or staff are allergic? Is the dog going to be a distraction for other students? Where will the dog relieve itself? Though these concerns are valid considerations, you might be surprised that in most cases, courts do not find they justify excluding service animals from schools.

The school context is especially complicated because school administrators cannot only think of the rights of the student requesting to bring a service animal to school. Administrators must also consider the needs of faculty and other students and the need to maintain a safe and effective learning environment. Let’s look at the general legal requirements and some common myths to help you determine when and under what circumstances service animals must be permitted.
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Our Partner Jennifer Smith asked an important question during the Legislative Update session yesterday at IAASE’s 2019 Fall Conference: What can Illinois special education teachers and administrators do to help ensure that the legislature makes necessary fixes to Public Act 101-0515—or as IAASE aptly calls it, “That Pesky RTI and Special Education

Including Guest Author Tracey Truesdale

One of the things we love the most about Franczek P.C. is the synergy that exists between our practice areas. A recent letter from the U.S. Department of Labor (DOL) is one example in which the worlds of special education law and labor and employment law—our two main practice areas at Franczek—collided. We called on our Partner Tracey Truesdale, who has vast experience in this area of labor and employment law, to help us understand this law and its potential impacts on IEP teams.

The Wage and Hour Division of the DOL issued the letter in response to a request from a concerned parent. The parent sought an opinion on whether the Family Medical Leave Act (FMLA) would provide job protection to an employee who takes time off to attend individualized education program (IEP) meetings for their children. The DOL determined that parents may take intermittent leave under the FMLA to attend IEP meetings for children who have “serious health conditions.”


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