NEW TRANSITION LAWS – EXTENDING SERVICES FOR SPECIAL EDUCATION STUDENTSHodges
Loizzi Eisenhammer Rodick & Kohn LLP
Jennifer Rosenberg & Aimee LeBlanc
October 2021
In July, Governor Pritzker signed House Bill 40 into law as Public Act 102-0172 and House Bill 2748 into law as Public Act 102-0173. The two bills, both effective immediately, extend access to transition services for eligible students based on when they turned 22 years old. Previously, transition services for eligible students went through age 21, ending the day before the student’s 22nd birthday, regardless of when that date fell during the school year. ISBE issued an FAQ document addressing both laws, which is available here.
In this blog post, we focus on understanding the implications of P.A. 102-0173 (HB 2748), “COVID-19 recovery eligibility” for post-secondary transition students. Under new Section 14-17 of the School Code (105 ILCS 5/14-17), access to educational services is extended for certain students who turned 22 years old during periods of suspended in-person instruction due to the COVID-19 pandemic for the duration of the 2021-2022 school year.
One of the most frequently asked questions over the past several months has been, “How do I know which students are eligible for extended services past their 22nd birthday due to COVID-19?”
Under P.A. 102-0173, students with IEPs are eligible for extended services if the student reached “the age of 22 during the time in which the student’s in-person instruction, services, or activities are suspended for a period of 3 months or more during the school year as a result of the COVID-19 pandemic.” 105 ILCS 5/14-17(a). Per the ISBE FAQ, it applies to students regardless of whether they aged out or received a diploma or certificate of completion, or already received compensatory services.
Understanding Eligibility and Scope of Services: Jamie turned 22 years old on November 5, 2020. His school district offered hybrid instruction at that time during the 2020-2021 school year due to the COVID-19 pandemic. Jamie attended his transition program and received vocational services in-person three days per week, which fulfilled the minutes in his IEP, but he received related services, including 15 minutes per week of social work and 30 minutes per week of speech-language therapy, via a remote platform. This hybrid instructional program began in September 2020 and was in place until April of 2021, when all students in Jamie’s program transitioned back to full in-person instruction. Jamie stopped receiving services on November 4, 2020, the day before his 22nd birthday.
Here, the school district’s in-person instruction and services were suspended for more than three consecutive months during the regular school year, and Jamie’s 22nd birthday was during that period. But, the school district offered hybrid instruction and Jamie received some services in person. How does that impact his eligibility for extended transition services?
The ISBE FAQ states that if a school district can identify any component of a student’s in-person, IEP-based activities (including instruction and services) that were not provided in-person for a consecutive three-month period or more, then the student is eligible for extended services. The Act does not contemplate if services were provided through remote or hybrid means; thus, if a school district did not provide a service in-person, then the student is eligible for extended services for the 2021-2022 school year. But, if the school district offered services in-person and in accordance with the student’s IEP, and the parent/guardian or student-elected remote or hybrid learning in place of available in-person services, then the school district is not required to extend eligibility for that student.
In addition, the IEP goals in effect when the student turned 22 years old shall be resumed unless the school district and student and/or parent/guardian agree that the goals should be revised to appropriately meet the student’s current transition needs. An IEP meeting is not required unless the goals require revision. Additionally, special education services during the 2021-2022 school year should be comparable to services described on the most recent IEP developed for in-person services, unless the school district and student and/or parent/guardian agree upon different IEP goals that would impact services.
Therefore, Jamie is eligible to resume services for the 2021-2022 school year because in-person services were partially suspended for a period of three months or more during the 2020-2021 school year due to COVID-19, he turned 22 years old during that period, and he did not receive all of his IEP services via in-person instruction. Although Jamie received the majority of his services in-person, with only 45 minutes of service provided remotely, he is eligible to receive all services per his 2020-2021 IEP through the end of the 2021-2022 school year. If the goals or services in that IEP are no longer appropriate, the school district and family should meet to revise Jamie’s IEP.
Individualized Eligibility: Josh turned 22 years old on April 5, 2020, just after the March 2020 closure of all schools in Illinois due to the COVID-19 pandemic. Josh’s school district ended the school year on May 29, 2020. Josh received all IEP services from March 16 through April 4, 2020, via a remote platform. Between the time of the mandatory school closure, and the end of the school year, there were only two and a half months of school. Is Josh eligible for extended transition services?
The ISBE FAQ clarifies that “3 months or more during the school year” means three consecutive calendar months. The school year is the regular school term specified in the regular school calendar adopted by the school district. It does not include summer school or the ESY period. Act of God days (e.g., days by the Governor’s Executive Order at the onset of the pandemic) count for determining the three-month period. In its updated FAQ, ISBE states that “[i]n circumstances where there were not three consecutive months of suspension of in-person instruction, services, or activities, but the cumulative suspension of in-person instruction in a regular school term far exceeded three months, districts should make an individual determination as to the impact on the student’s ability to progress toward his/her IEP goals and the need to offer the student the opportunity to return for the 2021-22 school year.”
Based on the statutory language in new Section 14-17, Josh is not eligible for extended services because he turned 22 years old during a period of fewer than three months of suspended in-person instruction. However, based on the revised ISBE FAQ, it would be at the school district’s discretion to determine, on an individualized basis, whether there was an impact on Josh’s attainment of his IEP goals in April 2020, such that he should be offered services during the 2021-2022 school year.
Students in Private Therapeutic Placements: Beth turned 22 years old on January 1, 2021. Prior to her 22nd birthday, Beth attended a private therapeutic day school in Illinois during the 2020-2021 school year pursuant to her IEP. Due to the COVID-19 pandemic, some of Beth’s services during the fall of 2020 were suspended or were provided remotely for three months. Beth left the private therapeutic program after she turned 22 years old. Everyone agrees that Beth is eligible for extended services during the 2021-2022 school year. However, the private therapeutic day school does not have an opening in its program, as it achieved full enrollment prior to the beginning of the 2021-2022 school year. What should the school district do to provide Beth services?
For students who turned 22 years old while placed in private therapeutic day schools or residential facilities, “the school district is not required to resume that program for the student if the student has aged out of the program or the funding for supporting the student's placement in the facility is no longer available.” 105 ILCS 5/14-17(d). ISBE directs that the school district and student and/or parent/guardian meet to determine options for alternative services to meet the student’s IEP goals.
Here, the school district needs to make an effort to find a placement to meet Beth’s needs. Where the school district is unsuccessful, it should hold a meeting with Beth and/or her parent/guardian to determine whether there are other options to meet Beth’s needs, such as an in-district program, the provision of related services, or any other options. School districts should document attempts to secure placements, as well as communications with families. It is possible that students with significant needs may not be able to access extended services where programs are not available to meet those needs.
Residency Status: Sara turned 22 years old on December 8, 2020. Although her school district was fully remote for general education students from September 2020 through February 2021, Sara received two days of in-person instruction during that period. However, the majority of her services were provided remotely. The school district determined Sara is eligible for extended services during the 2021-2022 school year and mailed a notice in August 2021 to Sara and her parent/guardian at their last known address to inform them of Sara’s eligibility. The letter was returned as undeliverable. The school district later determined that Sara’s family moved out of the district’s attendance area after she turned 22 years old. Sara now resides in another county in Illinois, where she is currently receiving adult services through the State.
School districts were required to send notice of the availability of extended services to each eligible student by regular mail to the last known address of the student or the student’s parent/guardian within 30 days of the effective date of the Act, by August 27, 2021. Notices should be written in a language understandable to the general public and provided in the native language of the student and/or parent/guardian or other modes of communication used by the student and/or parent/guardian, unless not feasible. School districts should keep copies of the notice and a record of the date when it was sent.
Extended services do not apply if the student is no longer a resident of the school district that was responsible for the student’s IEP at the time the student turned 22 years old. 105 ILCS 5/14-17(b).
Here, the school district met its duty to notify Sara and her parent/guardian of Sara’s eligibility. However, Sara is not eligible to receive extended services during the 2021-2022 school year because she is no longer a resident of the school district. Sara is only eligible to receive extended services in the school district in which she was previously enrolled. Because she is no longer a resident of that school district, she is not eligible to receive extended services from that district, and she is not eligible to receive services from the school district within which she currently resides.
Also important to note is that ISBE encourages both school districts and parents/guardians or students to contact the local Illinois Department of Human Services Division of Rehabilitation Services (“DRS”) office, or other applicable State agency, to discuss how a return to school under this Act may impact any adult services or benefits the student is currently receiving, for students who have already transitioned to adult services or are on waitlists for adult services.
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