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 Dual Services: EB and IEP

An LEA must provide Emergent Bilingual (EB) students with an Individualized Education Plan (IEP) with both the language assistance and the special education services.

School districts must provide EL students with disabilities with both the language assistance and disability-related services to which they are entitled under Federal law. Districts must also inform a parent of an EL student with an individualized education program (IEP) how the language instruction education program meets the objectives of the child’s IEP.

The Departments are aware that some school districts have a formal or informal policy of “no dual services,” i.e., a policy of allowing students to receive either EL services or special education services, but not both. Other districts have a policy of delaying disability evaluations of EL students for special education and related services for a specified period of time based on their EL status. These policies are impermissible under the IDEA and Federal civil rights laws, and the Departments expect SEAs to address these policies in monitoring districts’ compliance with Federal law. Further, even if a parent of an EL student with a disability declines disability-related services under the IDEA or Section 504, that student with a disability remains entitled to all EL rights and services as described in this guidance.

 EB Status vs. Disability

Not speaking English is not a disability. EB student’s limited proficiency in English language must not be used as the only reason for a referral for special education evaluation.

Before a child is given an evaluation, the local school district shall ensure compliance with the requirements of Section 14-8.02 of the School Code by determining the primary language of the child’s home, general cultural identification, and mode of communication. 
  1. Determination of the child’s language use pattern and general cultural identification shall be made by determining the languages spoken in the child’s home and the languages used most comfortably and frequently by the child. 
  2. If the child has a non-English-speaking background, a determination shall be made of his or her proficiency in English. This determination shall be conducted in accordance with the provisions of 23 Ill. Adm. Code 228 (Bilingual Education), which specifies the assessment procedures and eligibility criteria for bilingual education programs (see 23 Ill. Adm. Code 228.15). 
  3. Determination of the child’s mode of communication shall be made by assessing the extent to which the child uses verbal expressive language and the use he or she makes of other modes of communication (e.g., gestures, signing, unstructured sounds) as a substitute for verbal expressive language. 
  4. The child’s language use pattern, proficiency in English, mode of communication, and general cultural identification shall be noted in the child’s temporary student record, and this information shall be used in the evaluation and in the development and implementation of the individualized education program. (Source: Amended at 31 Ill. Reg. 9915, effective June 28, 2007)​​

 Evaluations

​An EB student, suspected of having a disability, should be evaluated in his or her home/native language, in a way that is nondiscriminatory with respect to student’s culture.
Each evaluation shall be conducted so as to ensure that it is nondiscriminatory with respect to language, culture, race, and gender. 
  1. The languages used to evaluate a child shall be consistent with the child's primary language or other mode of communication. (See Section 226.140 of this Part.) If the language use pattern involves two or more languages or modes of communication, the child shall be evaluated by qualified specialists or, when needed, qualified bilingual specialists using each of the languages or modes of communication used by the child. The provisions of subsections (b) and (c) of this Section shall apply when a qualified bilingual specialist is needed but unavailable. 
  2. If documented efforts to locate and secure the services of a qualified bilingual specialist are unsuccessful, the district shall use an individual who possesses the professional credentials required under Section 226.840 of this Part to complete the specific components of the evaluation. This qualified specialist shall be assisted by a certificated school district employee or other individual who has demonstrated competencies in the language of the child. 
  3. If documented efforts to locate and secure the services of a qualified bilingual specialist or a qualified specialist assisted by another individual as provided in subsection (b) of this Section are unsuccessful, the district shall conduct assessment procedures which do not depend upon language. Any special education resulting from such alternative procedures shall be reviewed annually until the student’s proficiency is determined no longer to be limited pursuant to 23 Ill. Adm. Code 228 (Transitional Bilingual Education; see Section 228.15). 
  4. Tests given to a child whose primary language is other than English shall be relevant, to the maximum extent possible, to his or her culture. 
  5. If the child's receptive and/or expressive communication skills are impaired due to hearing and/or language deficits, the district shall utilize test instruments and procedures that do not stress spoken language and one of the following: 
    1. Visual communication techniques in addition to auditory techniques. 
    2. ​An interpreter to assist the evaluative personnel with language and testing. (Source: Amended at 31 Ill. Reg. 9915, effective June 28, 2007)
EB status and/or student’s proficiency in English must not delay evaluation for special education services.

SEAs and school districts must ensure that all EL students who may have a disability, like all other students who may have a disability and need services under IDEA or Section 504, are located, identified, and evaluated for special education and disability-related services in a timely manner. (…)

The Departments are aware that some school districts have a formal or informal policy of “no dual services,” i.e., a policy of allowing students to receive either EL services or special education services, but not both. Other districts have a policy of delaying disability evaluations of EL students for special education and related services for a specified period of time based on their EL status. These policies are impermissible under the IDEA and Federal civil rights laws, and the Departments expect SEAs to address these policies in monitoring districts’ compliance with Federal law. Further, even if a parent of an EL student with a disability declines disability -related services under the IDEA or Section 504, that student with a disability remains entitled to all EL rights and services as described in this guidance.

 Bilingual Specialists

It is presumed that a bilingual specialist participates in the IEP meetings for students with EB status.

e) The IEP Team shall include a qualified bilingual specialist or bilingual teacher, if the presence of such a person is needed to assist the other participants in understanding the child’s language or cultural factors as they relate to the child’s instructional needs. If documented efforts to locate and secure the services of a qualified bilingual specialist are unsuccessful, the district shall instead meet the requirements set forth in Section 226.150(b) of this Part.

e) The IEP Team shall include a qualified bilingual specialist or bilingual teacher, if the presence of such a person is needed to assist the other participants in understanding the child’s language or cultural factors as they relate to the child’s instructional needs. If documented efforts to locate and secure the services of a qualified bilingual specialist are unsuccessful, the district shall instead meet the requirements set forth in Section 226.150(b) of this Part.

f) Qualified Bilingual Specialist 
Professional staff otherwise qualified pursuant to this Section shall be considered “qualified bilingual specialists” if they meet the applicable requirements set forth in this subsection (f). 
  1. A holder of a special certificate endorsed in the area of responsibility pursuant to 23 Ill. Adm. Code 25.40 or 25.43 shall successfully complete a language examination in the non-English language of instruction and shall have completed coursework covering: 
    1. Psychological/educational assessment of students with disabilities who have limited English proficiency; 
      1. ​Theoretical foundations of bilingual education and English as a second language, including the study of first and second language acquisition; and 
      2. ​Methods and materials for teaching students of limited English proficiency or students with disabilities who have limited English proficiency. 
  2. A holder of an early childhood, elementary, or high school certificate who also holds special education approval in the area of responsibility (see Section 226.810 of this Part) shall successfully complete a language examination in the non-English language of instruction and shall have completed the coursework listed in subsections (f)(1)(A), (B), and (C) of this Section. 
  3. A holder of an early childhood, elementary, or high school certificate who also holds approval to teach bilingual education or English as a second language shall have completed coursework covering: 
    1. Methods for teaching in the special education area of assignment; 23 ILLINOIS ADMINISTRATIVE CODE CH. I, S.226.800 SUBTITLE A SUBCHAPTER f 
    2. ​Psychological/educational assessment of students with disabilities who have limited English proficiency, or psychological diagnosis for children with all types of disabilities; and 
    3. Characteristics of students, or characteristics of students with limited English proficiency specifically, in the special education area of assignment.
  4. A holder of a transitional bilingual certificate issued pursuant to 23 Ill. Adm. Code 25.90 and endorsed for the language of assignment shall have completed two years of successful teaching experience and have completed coursework covering: 
    1. Survey of children with all types of disabilities; 
    2. Assessment of the bilingual student, or psychological/educational assessment of the student  with disabilities who has limited English proficiency;
    3. Theoretical foundations of bilingual education and English as a second language, including the   study of first and second language acquisition; 
    4. Methods for teaching in the special education area of assignment; and 
    5. Characteristics of students, or characteristics of students with limited English proficiency specifically, in the special education area of assignment. 
  5. A holder of a school service personnel certificate endorsed for guidance, school social work, or school psychology shall successfully complete an examination in the non-English language and shall have completed coursework in assessment of the bilingual student or psychological/educational assessment of the student with disabilities who has limited English proficiency
As part of this process, the IDEA requires that the IEP team consider, among other special factors, the language needs of a child with limited English proficiency as those needs relate to the child’s IEP. To implement this requirement, it is essential that the IEP team include participants who have the requisite knowledge of the child’s language needs. To ensure that EL children with disabilities receive services that meet their language and special education needs, it is important for members of the IEP team to include professionals with training, and preferably expertise, in second language acquisition and an understanding of how to differentiate between the student’s limited English proficiency and the student’s disability.

 Provision of Interpreters

​An LEA is required to provide an interpreter to participate in all IEP meetings to assist parents whose home/native language is other than English (unless the parents have clearly indicated that English is the language spoken at home and the language to be used in school correspondence).​

Additionally, the IDEA requires that the school district “take whatever action is necessary to ensure that the parent understands the proceedings of the IEP team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English.”

(e) Use of interpreters or other action, as appropriate. The public agency must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP Team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English.

 Procedural Safeguards and Conference Notices

​Procedural safeguards and conference notices must be provided in parents’ home/native language.

  1. (c) Notice in understandable language. 
    1. (1) The notice required under paragraph 
      1. ​(a) of this section must be— 
        1. ​​(i) Written in language understandable to the general public; and
        2. ​​(ii) Provided in the native langu​age of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.
    2. ​​(2) If the native language or other mode of communication of the parent is not a written language, the public agency must take steps to ensure—
      1. ​(i) That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication;
      2. ​(ii) That the parent understands the content of the notice; and
      3. ​​(iii) That there is written evidence that the requirements in paragraphs
34 Code of Federal Regulations (CFR) 300.504 – Procedural safeguards notice. 
  • (a) General. A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents only one time a school year, except that a copy also must be given to the parents - 
    • (1) Upon initial referral or parent request for evaluation; 
    • (2) Upon receipt of the first State complaint under §§ 300.151 through 300.153 and upon receipt of the first due process complaint under § 300.507 in a school year; 
    • (3) In accordance with the discipline procedures in § 300.530(h); and 
    • (4) Upon request by a parent. 
  • (d) The notice required under paragraph (a) of this section must meet the requirements of § 300.503(c). 
The notices to individual parents required in this Subpart F shall conform to the requirements of 34 CFR 300.503(c).

A copy of the notice of procedural safeguards available to the parents of a child with a disability shall be given to the parents in accordance with, and shall conform to the requirements of, 34 CFR 300.504.

Dear Colleague Letter, U.S. Department of Justice, Civil Rights Division and U.S. Department of Education, Office of Civil Rights, January 7, 2015 (Section F).PDF Document 

A. Identifying and Assessing All Potential EL Students

One of the most critical “affirmative steps" and “appropriate action[s]" that school districts must take to open instructional programs to EL students and to address their limited English proficiency is to first identify EL students in need of language assistance services in a timely manner. School districts must provide notices within thirty days from the beginning of the school year to all parents of EL students regarding the EL student's identification and placement in a language instruction educational program.29 School districts must, to the extent practicable, translate such notices in a language that the parent can understand.30 If written translations are not practicable, school districts must offer LEP parents free oral interpretation of the written information.31 In light of these obligations and the duty to timely identify all EL students, school districts will need to assess potential EL students' English proficiency and identify non-proficient students as EL as soon as practicable and well before the thirty-day notice deadline.

 Determinant Factors vs. Consideration of Special Factors

​Student with EB status box cannot be marked “Yes" as a determinant factor for student's suspected disability. Students with EB status box should be marked “Yes" in Consideration for Special Factors section of an IEP document.

  • School districts must not identify or determine that EL students are students with disabilities because of their limited English language proficiency.
Determinant Factor
Check the yes/no boxes to indicate if the team has determined that the reason (determinant factor) that the student is experiencing difficulty in school is the result of (a) lack of scientifically-based instructional practices and programs that contain the essential components of reading instruction, (b) lack of instruction in math, or (c) limited English proficiency. Attach evidence to support the team’s decision whether the box was marked “yes” or “no”. The following are examples of evidence that could be used to support the team’s decision. 

 (c) Limited English proficiency Examples of Evidence – Lack of or limited access to Limited English proficiency programs in academic settings. 

If the student is not succeeding due to any one of the three reasons listed above, the student is not eligible for services under IDEA and the team must complete steps 1 and 4.

Consideration of Special Factors
Use boxes to indicate which, if any, special factors apply to the student and must be addressed in the IEP. If any box is checked “Yes,” the team must document in the “Supplementary Aids, Accommodations, and Modifications” sections and/or the Linguistic and Cultural Accommodations Section below.

Linguistic and Cultural Accommodations

Use the boxes to indicate if the student requires accommodations to meet his/her linguistic and cultural needs and if special education and related services will be provided in a language or mode of communication other than or in addition to English. If yes, indicate accommodations or other languages/modes of communication that are required. For students who are deaf/hard of hearing and others as applicable, identify the language and communication need(s) by checking the appropriate box. List the opportunities for direct communication/interaction with peers and professional personnel in the child’s language and communication mode. List the identified mode of communication accessible in academic instruction, school services and extracurricular activities that the student will receive.

 EB Information in an IEP Document

​An IEP for a student with EB status must include a section pertaining to the state assessment of English language proficiency (ACCESS and Alternate ACCESS) and list ACCESS assessment accommodations (as described in WIDA Accessibility and Accommodations SupplementPDF Document).
The state assessment of language proficiency for English Learners (EL) in grades K-12 include: Accessing Comprehension and Communication in English State to State (ACCESS) and the Alternate ACCESS.

 Other Provisions for ELs with IEPs

​School district must follow provisions pertaining to the educational placement of EBs with IEPs in a non-restrictive environment, as defined by the Illinois School Code, and with understanding that EB supports, such as TBE or TPI programs, are not special education or related services.​

(d) The placement of English learners with disabilities shall be in non-restrictive environments which provide for integration with peers who do not have disabilities in bilingual classrooms. Annually, each January, school districts shall report data on students from non-English speaking backgrounds receiving special education and related services in public and private facilities as prescribed in Section 2-3.30.

(e) No child who comes from a home in which a language other than English is the principal language used may be assigned to any class or program under this Article until he has been given, in the principal language used by the child and used in his home, tests reasonably related to his cultural environment. All testing and evaluation materials and procedures utilized for evaluation and placement shall not be linguistically, racially or culturally discriminatory. 

(g) School boards or their designee shall provide to the parents of a child prior written notice of any decision (a) proposing to initiate or change, or (b) refusing to initiate or change, the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to their child, and the reasons therefor. Such written notification shall also inform the parent of the opportunity to present complaints with respect to any matter relating to the educational placement of the student, or the provision of a free appropriate public education and to have an impartial due process hearing on the complaint. The notice shall inform the parents in the parents' native language, unless it is clearly not feasible to do so, of their rights and all procedures available pursuant to this Act and the federal Individuals with Disabilities Education Improvement Act of 2004 (Public Law 108-446).

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