Key concepts in special education law Lawyer Manual

Key concepts in special education law

Early Intervention Services 

Families of children with disabilities between the ages of birth to three years old may be eligible for early intervention services. Early intervention services are provided at no cost and are designed to meet the developmental needs of an infant or toddler with disabilities. 34 CFR §303.12-13.

If eligible, the child's family and the service coordinator will create an Individualized Family Service Plan (IFSP). This plan includes the date the child will transition out of the early intervention services. 

All early intervention services must start within 30 days of when the child’s parent or guardian consented to the individualized family service plan. HB4999

Children may continue to receive early intervention services until the start of the school year after their third birthday, if they:

• Are under three, 

• Receive early intervention services, and 

• Have a birthday between May 1st and August 31st.

See 325 ILCS §20 for more information on early intervention services in Illinois.

Free Appropriate Education (FAPE)

Each state is required to provide every child eligible for special education with a free and appropriate public education, including when they are expelled or suspended. An "appropriate" education is one that is designed to meet the child’s unique needs in preschool, elementary and secondary school. School districts are not required to provide the “best” education or maximize a child’s potential, but instruction must allow a child to make “educational progress.” 34 C.F.R. §300.101(a); 23 Ill Admin Code §226.50. This applies when qualified children are between the ages of 3 and 21 years old. This requirement continues until the student graduates with a regular high school diploma, or the day before the student’s 22 birthday, whichever comes first. This means that, for early education, the State needs to make sure that FAPE is available to the child by his or her third birthday. See 34 C.F.R. §§300.101-103 and 23 Ill. Admin. Code §226.50 for more information on FAPE.  

Child find

Each state is required to develop and implement a method to locate, identify, and evaluate children with disabilities that need special education or any related services. This includes homeless children, children in private schools, migrant children, as well as children who may be advancing from grade to grade. 34 C.F.R. § 300.111; 23 Ill Admin Code §226.100.

Illinois qualifies this responsibility by explaining that these methods must include:

• Annual screening for children under 5 to identify special education needs or early intervention services;
• Ongoing review of each child's performance and progress by a child’s teachers and other professional personnel; and
• Coordination with early intervention programs to ensure that the transition happens according to the federal timeline.

See 23 Ill Admin Code §226.100.

Least Restrictive Environment (LRE)

Each state is required, to the maximum extent appropriate, to educate students with disabilities along with other students who are not disabled. Removal of disabled children should only occur when education in a general education class with the use of supplementary special education services is not appropriate. 34 C.F.R. § 300.114. States are also required to ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services. 34 C.F.R. §300.115.

Education rights holder

Under IDEA the person who holds a student’s education decision-making rights in special education matters is the person who meets the definition of “parent” under 34 CFR §300.30. This includes biological and adoptive parents, as well as foster parents, an individual acting in the place of a biological parent with whom the child lives, or an individual who is legally responsible for the child’s welfare. In cases where the child is living in a youth shelter or group home, the Illinois State Board of Education (“ISBE”) will appoint a surrogate parent to make educational decisions on behalf of the minor. 23 Ill. Admin. Code § 226.550. Of course, once the student turns 18 years old, she acquires her educational decision-making authority, unless she decides to assign this authority to her parent or another adult. 23 Ill. Admin. Code §226.690, 105 ILCS §5/14-6.10.

Placement in special education facilities

A student may be placed in a non-ISBE-approved facility if the IEP team determines that the school district cannot meet the student’s needs. Within 10 days of the request, ISBE must approve it. For approval, the facility must:

• Show that the teachers have appropriate licensure to serve the student population,
• Have age-appropriate curriculum,
• Provide enrollment and attendance data, and
• Have the ability to implement the student’s IEP.

A hearing officer also may approve an emergency placement.

The requesting school district must show it made a good-faith effort to place the student in an ISBE-approved facility. The school district must pay the facility at least once a quarter unless other otherwise agreed upon.

The placement should be reviewed annually by the IEP team. It can continue as long as the facility meets the student’s needs. Every 3 years, the team should determine if there are approved facilities that can accept the student.