May 17, 2022 Residential Placement Bill

Public Act 102-0703 – Residential Placement Bill

Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP

For the last several school years, and specifically during the COVID-19 pandemic, school districts have faced challenges in securing placements for students in residential facilities approved by the Illinois State Board of Education (“ISBE”). This is due in part to the limited number of residential facilities approved by ISBE pursuant to ISBE’s Part 401 rules and ISBE’s prohibition on placing students in non-ISBE approved residential facilities through the IEP process. As a result, many students with significant needs were unable to get timely access to residential facilities and remained on waiting lists with limited resources for interim programming. Further complicating this issue was ISBE’s position, set forth in a February 2020 memo, stating it would no longer reimburse school districts for students placed in non-ISBE approved special education placements even if ordered by an ISBE Hearing Officer. 

Following advocacy by special education administrators and the Illinois Council of School Attorneys, ISBE issued a letter on January 10, 2022, immediately reinstating its practice of reimbursing school districts for placements in non-ISBE approved residential facilities when ordered by an ISBE Hearing Officer. However, ISBE’s letter indicated it still would not provide reimbursement to school districts for placements in non-approved residential facilities pursuant to a settlement agreement or IEP team determination.  

On February 4, 2022, ISBE filed emergency rules allowing school districts to place students in  non-ISBE approved residential facilities when no ISBE-approved facility accepts the student or immediate placement is not available and allowing school districts to receive reimbursement for placements in such non-approved facilities if certain conditions are met. The emergency rules also allow for reimbursement when an ISBE Hearing Officer orders placement in a non-approved residential facility. ISBE also filed corresponding emergency rules on behalf of the Illinois Purchased Care Review Board (“IPCRB”). These proposed amendments to the ISBE and IPCRB rules are awaiting approval from the Joint Committee on Administrative Rules (“JCAR”) to make the emergency rules permanent.​

Additionally, the Illinois General Assembly recently introduced and passed House Bill 4365 to codify the changes to the ISBE regulations regarding residential placements. On April 22, 2022, Governor Pritzker signed HB 4365 into law; Public Act 102-0703 went into effect immediately. The Act amends Section 14-7.02 of the Illinois School Code (105 ILCS 5/14-7.02) to specifically provide where a student’s IEP team determines residential placement is appropriate, the financial responsibility and reimbursement of the resident school district applies to both nonpublic special education residential facilities that are approved by ISBE pursuant to its Part 401 rules or other applicable laws or rules and emergency placements in facilities that are not approved.  

Pursuant to Public Act 102-0703, an IEP team may place a student in a non-ISBE approved, nonpublic special education residential facility if ISBE provides an emergency and student-specific approval for placement. ISBE is to respond to the emergency placement request within 10 days. In order to get approval for such placement, a school district must demonstrate:

1. the facility demonstrates appropriate licensure of teachers for the student population;

2. the facility demonstrates age-appropriate curriculum;

3. the facility provides enrollment and attendance data;

4. the facility demonstrates the ability to implement the child’s IEP; and

5. the school district demonstrates that it made good faith efforts to place the student in an approved facility, but not approved facility has accepted the student or has availability for immediate placement of the student.

Section 14-7.02 of the School Code also now includes if an ISBE Hearing Officer orders placement of a student with a disability in a residential facility that is not ISBE approved, then the facility shall be deemed approved for placement and school district payments and reimbursements shall be made accordingly.

Emergency placement in a residential facility by a school district or ISBE Hearing Officer may continue so long as (1) the student’s IEP team determines annually that such placement continues to be appropriate to meet the student’s needs, and (2) at least every 3 years following the student’s placement, the IEP team reviews appropriate placements approved by ISBE to determine whether there are any approved placements that can meet the student’s needs, have accepted the student, and have availability for placement of the student. 

Public Act 102-0703, and the emergency and proposed ISBE rules, should help alleviate the residential placement crisis. 

Also, we would be remiss if we did not remind readers of a related requirement that went into effect last August for residential placement decisions by an IEP team. Per Public Act 102-0254 (eff. August 6, 2021), before an IEP team places a student in an out-of-state special education residential facility, the school district and parents/guardians must explore in-state residential facility options. In-state residential facility options also must be considered at an annual review while the student is placed in an out-of-state residential facility. IEP teams should document consideration of in-state residential facilities.

May 4, 2022 Managing Student Records

MANAGING STUDENT RECORDS

By: Cassie Black

Kriha Boucek

Managing Student Records

As we near the end of the school year we frequently get questions related to student records. What exactly is a student record? What do we have to keep? What can we throw away? Does it matter where we store student records?

The answers to these questions are not always so straightforward, especially with the growing popularity of electronic storage of information and the use of multiple databases to store information. However, we’ve identified the top questions we receive related to student records, focusing on those questions that are relevant to special education teachers and related service providers.

What is a student record?

Under the Family Educational Rights and Privacy Act (FERPA) and the Illinois School Student Records Act (ISSRA), a student record is any writing or other recorded information concerning a student and by which a student may be individually identified, maintained by a school or at its direction or by an employee of a school, regardless of how or where the information is stored.

 Student records do not include:

●     Writings or other recorded information maintained by an employee of a school or other person at the direction of a school for his or her exclusive use as long as: 1) this information is destroyed not later than the student's graduation or permanent withdrawal from the school; and 2) the information is not shared with anyone else (except a person designated by the school as a substitute unless they are first incorporated in a school student record and made subject to all of the provisions of this Act).

●     Information maintained by law enforcement professionals working in the school.

● Contents of a video or other electronic recording, including on a school bus, unless the video/electronic records are used and maintained for a particular reason (e.g., disciplinary action or compliance with a student's Individualized Education Program) regarding that specific student.

 While it is beyond the scope of this article, student records are further categorized by permanent and temporary records, with districts required to retain permanent records for 60 years after a student withdraws, transfers, or graduates from the district and temporary records for five years after a student withdraws, transfers, or graduates from the district. Special education records, and the types of records we will discuss below, are generally considered temporary records.

 

Does it matter where student records are stored?

While each district typically has a procedure for storing student records, it is important to note that there are no legal requirements regarding how or where student records are stored. If a record individually identifies a student, is maintained by the district or its employee, and does not meet one of the exceptions above, it is considered a student record, no matter where it is stored. As technology becomes more prevalent in teaching and learning, districts typically use multiple databases to store information. With this in mind, it is important that districts have an understanding of all the databases used to store information and that employees have a good understanding of what constitutes a student record so that districts comply with relevant laws related to student records.

 

Are personal notes, progress notes, and/or lesson plans considered student records?

Generally, lesson plans are not student records, as they aren’t related to or identify specific students. Similarly, personal notes are not considered student records as long as they are not shared with anyone else (except a sub) and are destroyed no later than the student’s graduation or permanent withdrawal from school. Therapy notes, progress notes, and data collection related to student IEP goals are considered student records and should be maintained as such.

 

Are emails considered student records?

Emails are considered student records when the above criteria are met. We are often asked if this is true even when the district uses student initials or ID numbers to identify students. While this may be a good practice to protect student privacy and prevent unauthorized disclosure of information to individuals who do not have a legitimate educational interest, the use of initials or ID numbers does not prevent the email from being considered a student record.

 

Do we need to hold onto test protocols once we’ve finished evaluating a student and have written the report? If so, do we only keep the first page if that is the only page that has identifying information?

Test protocols are student records, and like other temporary student records, must be kept for five years after the student withdraws, transfers, or graduates from the district. Even if identifying information is only included on the first page, the entire booklet is considered the student record and should be retained.  Depending on district practices, test protocols are often kept in the teacher or related service provider’s office or the district’s special education file. Additionally, with computer-based scoring, the protocol could be “stored” in the database. Where information is stored is a district decision and regardless of where it is stored, it is considered a temporary record.

Can we share test protocols with parents?

FERPA neither prohibits nor requires that districts share testing protocols with parents as it only allows parents the right to inspect and review student records. However, ISSRA allows parents the right to inspect and copy student records. Another state law, the Mental Health & Developmental Disabilities Confidentiality Act states that psychological testing materials whose disclosure would compromise the objectivity or fairness of the testing process may not be disclosed except to a psychologist designated by the parent/guardian and/or student. See 740 ILCS 110/3(c). Additionally, ISSRA states that when access to student records is granted, at either the request of that individual or the district, a qualified professional may be present to interpret the information contained in the student’s temporary record. See 105 ILCS 10/5(b).

Districts are often concerned about sharing testing protocols with parents because raw data may not be meaningful to parents without being accompanied by an interpretation. Additionally, districts also often express concerns related to copyright issues. To address these concerns, and to comply with the various laws described above, districts may choose to invite parents or other individuals in to review test protocols with a school staff member qualified to interpret the results rather than release protocols. Additionally, districts may release protocols to individuals qualified to interpret the results.

Final thoughts

The end of the year is a good time to review your district procedures related to student records and share this information with staff. It’s also a great time to clean up student records by getting rid of duplicate documents as you transfer documents from one attendance center or district to another. This summer may also be a great time to identify all of the data management systems used in your district so that you are ready to respond efficiently to your next request for student records.