January 18, 2022 Update from Legislative Committee - Residential Placements

 January 18, 2022 

Update from Legislative Committee - Residential Placements

We all know and appreciate our talented school attorneys who skillfully help us negotiate challenging situations we face in our Districts and Cooperatives.  You may not know that many of our school attorneys also advocate removing barriers that we face in the education of students with disabilities.  The Illinois Council of School Attorneys (ICSA), which is adjunct to the Illinois Association of School Boards, is a group of 250+ attorneys who practice throughout Illinois representing school districts.  Recently, the ICSA Executive Committee sent a letter to ISBE about solving the insufficient number of ISBE-approved residential facilities that are sufficiently staffed and available to serve students with significant disabilities. Specifically, the letter asked ISBE to reverse its practices and begin to reimburse school districts when one of their students is placed in a non-ISBE-approved facility.  On January 10th, ISBE responded to the ICSA letter and they have given us permission to share excerpts from the letter with our members.  

In order to address the residential placement issue, ISBE will take the following actions immediately:

1) reverse its position and reimburse school districts for placements of students in nonapproved residential facilities as a result of a due process hearing officer decision; and

2) recommend to the Illinois Purchased Care Review Board (“IPCRB”) that the IPCRB amend its rules at 89 IAC 900.320 and 89 IAC 900.330 to allow more Illinois students to be placed in facilities without triggering additional requirements for approval as set forth in the current regulations.

I. ISBE to Reimburse School Districts for Placements in Nonapproved Facilities

In the past, ISBE has reimbursed school districts for placements as a result of due process

hearing officer decisions that ordered placement in a nonapproved facility. In such circumstances, ISBE reimbursed school districts for the allowable costs for room and board and tuition (after the District paid twice the per capita rate for tuition) based on a hearing decision made by the hearing officer in the due process case. This practice ended in February 2020. Therefore, in order to provide short-term relief, ISBE will immediately reinstate this practice and reimburse school districts for cases since February 2020 for placements in nonapproved

facilities ordered by an ISBE appointed hearing officer, subject to necessary prorations after the school district pays twice the per capita rate for tuition. In the coming weeks, ISBE will notify school districts of procedures for requesting reimbursement for due process hearing decisions. Reimbursement will not be provided for cases that were or will be settled without proceeding with the due process hearing.

II. Recommend that the Illinois Purchased Care Review Board waive certain requirements for facilities if the number of pupils placed with the residential facility total 12 or fewer.

On December 30, 2021, ISBE took action and recommended that the IPCRB act immediately to add language to 89 IAC 900.320 that would allow the IPCRB to waive the requirement for a certified audit and/or for a cost report if the number of pupils placed total 12 or fewer rather than fewer than six as the language currently stands. ISBE also recommended that the language in 89 IAC 900.330 be amended to reflect flexibility in determining allowable costs based on facilities that have 12 or fewer students rather than fewer than six students as the language

currently reads. The IPCRB met on January 4, 2022, to discuss the proposed changes. The IPCRB will make a decision on the proposed rule changes at their next board meeting, which is scheduled for February 1, 2022.

Based on feedback ISBE has received from various external stakeholders, there is some indication that certain private facilities refuse to accept additional Illinois students, even though they may have the capacity because they do not want to meet the additional requirements set forth in these provisions of the IPCRB’s regulations. Therefore, increasing this number on a temporary basis, as noted below, will likely increase the number of available beds for Illinois students while allowing ISBE to monitor the impact of this change for a set period of time.

Furthermore, this change will likely encourage more facilities to contract with Illinois school districts to serve students with disabilities under 105 ILCS 5/14-7.02 (approved facilities). ISBE recommended to IPCRB that the new language stays in effect through August 31, 2023 (this date is suggested to align with the calendar for the calculation of reimbursements for room and board, which runs from September 1st through August 31st). This would allow ISBE and IPCRB to monitor and review the impact of the new language and make any necessary changes to these rules prior to August 31, 2023.

In addition to this information, ISBE further stated that they will create a working group to work collaboratively with attorneys from ICSA and other stakeholders to propose long-term solutions to the residential placement issue.

One potential solution is a legislative initiative that IAASE supports.  HB 4365, sponsored by Representative Dan Didech, makes changes to the School Code that would allow districts to be reimbursed for placements in nonapproved facilities provided certain conditions are met.  ICSA has also proposed emergency regulations to ISBE to immediately bring relief to this issue.  

Please contact your school attorney if you have questions about how this information impacts any particular situations you are navigating.

IAASE Legislative Team