Professor Mark Weber, who teaches Special Education and other law subjects at DePaul University College of Law, the author of numerous articles and a treatise on Special Education Law has written the following letter. This letter further explains why Illinois Senate Bill 2796 is deterimental to parents and should be defeated in the Illinois House. The following open letter to all concerned parties can be used as "talking points" in corresponding with Illinois House representatives. This is an urgent request for action for all parents and others in Illinois who care about the welfare and the educational rights of children with special needs.
The key concerns about SB 2796 are:
1. The gratuitous reduction from 120 days to 90 days in the limitations period for court appeals will harm families pursuing their appeal rights. This will be a disaster for parents trying to get a lawyer and get an action on file after an adverse due process decision. Lawyers who do this work are hard enough to find now. Lopping a month off the time period will make things much worse. The federal law does not require this change; it merely sets a default limitations period. When there is an interest in a prompt resolution of the case, the parties can always go to court more quickly than the limitation period. When the issue is one of reimbursement, compensatory education, or attorneys' fees, 120 days is not harmful to anyone. The 120 day period has been around for as long as I remember, and the General Assembly rejected an effort to reduce it ten or so years ago. It should not change its mind now.
2. The 5-day presumptive limit on the number of hearing days will harm families presenting their case at a due process hearing. A hearing days limit will work against parents, who need the ability to present their case. Given the harsh approach to exhaustion in the courts of the Seventh Circuit, parents challenging IEPs need to develop every issue at hearing or risk the issue being considered forfeited in further appeals. At the present time, very few hearings now run more than a few days, and those that do are the ones with many experts and a high likelihood of appeals to court, where the exhaustion rule will keep any undeveloped issue from being raised. An artificial limit on the number of hearing days, even if there are provisions for exceptions, will disadvantage people who need to present complicated and difficult cases. It will be a disaster for any parent trying to proceed without a lawyer or with a lawyer who is not a special education expert.
3. There is nothing in the bill to permit liberal amendment of due process hearings. Hearing requests are almost always made pro se, and because the bill does not permit issues or relief not raised in the request to be presented at hearing, some provision needs to be made for liberal amendment. Nothing is currently in the bill on this point. 4. The change in the Illinois law is unnecessary and premature. Parts of the Illinois statutes have been superseded by the Individuals with Disabilities Education Improvement Act, but where the federal law supersedes a state law provision, the federal provision governs anyway, without any amendment to the state law. More to the point, the final federal regulations interpreting the new federal law have not yet come out, and judging from the delay in their implementation, probably will look much different from the proposed regulations. Final regulations probably will not be out until summer or fall. The Illinois law can be changed once everyone knows what the federal law actually requires; there is no need to do it now. There is no threat to federal funding if the state waits to amend its laws until the final version of the federal law is promulgated.
5. There is very little in this bill that is of any help to families who have children with disabilities. A change in the timeline for evaluation from school days to days, which was found in the bill as introduced in the Senate, was amended out. The provision changing the beginning of the timeline from referral to time of parental consent needs a rule that has yet to be adopted in order to work any improvement over the current state of affairs, and the rule change itself could make the same improvement.
Information on how to contact state representatives is on the General Assembly web site, as is a complete list of members of the Rules and Elementary and Secondary Education Committees. In particular, contact Representative Giles in Springfield at telephone number 217-782-5962; his fax number is 217-782-2779. If there is anything in this message that you think is persuasive, feel free to cut, paste, and edit it into your communications.
Mark Weber
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