Proposed Amendments to Part 401 (Special Education Facilities Under Section 14-7.02 of the School Code)

The version of these amendments that is now posted at this location is the version adopted by the State Board of Education at its meeting on June 19.  Although several dozen items of public comment were received on this rulemaking, the adopted version is identical to the version originally proposed.  For a discussion of the issues raised by the commenters, please refer to the Summary and Analysis of Public Comment that is posted as part of the Board meeting materials at http://www.isbe.net/board/meetings/june08/Rules.pdf.  Review of these amendments by the Joint Committee on Administrative Rules is expected to occur at JCAR’s July meeting.

Revisions made to Part 401 in 2007 included a new provision expressly prohibiting the “use of behavioral intervention strategies that would jeopardize the safety or security of students or would rely upon pain as an intentional method of control” (see Section 401.140(a)).  One of the out-of-state facilities where an Illinois student is placed does use aversive techniques, including the administration of electrical shock, as methods of behavioral control.  ISBE does not wish to permit the expenditure of public funds to support a program where this occurs, even if these techniques are not used on Illinois students.

To establish this policy, Part 401 is being revised in two respects.

• First, under the existing rules on changing facilities’ approval status during a year for which approval has been granted, immediate withdrawal of that approval is not available in response to the use of intentionally painful techniques.  That is, Section 401.30 generally calls for nonapproval only after a program has first been assigned a status of either “Approved with Administrative Review” or “Pending Further Review”.  Exceptions are made to permit immediate nonapproval “if any issues of noncompliance that present imminent danger to the students exist or if the State Superintendent verifies that the provider has unilaterally and intentionally ceased providing appropriate education pursuant to a school district’s contracts and one or more students’ IEPs.”  As can be seen, neither of these exceptions clearly covers these troublesome behavioral intervention strategies, necessitating the addition of a third exception under which nonapproval will be immediate.

• Second, the existing rule setting forth general requirements (Section 401.210) should be amplified to state unequivocally that, in order to be approved by ISBE, providers must have policies in place prohibiting the use of techniques that rely on the intentional infliction of pain.  To correspond to that addition, Section 401.10(a)(10), which calls for providers to describe their behavioral interventions, will now need to reference Section 401.210.

Initial Review by State Board of Education:  March 2008

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