Belleville area special education services coop legal update - the 2004 idea reauthorization, brittany's law and case law update

BELLEVILLE AREA SPECIAL

SERVICES COOPERATIVE

Legal Update: The 2004 IDEA Reauthorization, Brittany’s Law and

Case Law Update

April 15, 2005

BELLEVILLE AREA SPECIAL SERVICES COOPERATIVE

Legal Update: The 2004 IDEIA, Brittany’s Law and Case Law Update

April 15, 2005

9:00 a.m.- 1:00 p.m.

AGENDA

I. Introduction and Overview A. What We’ll cover B. Explanation of Materials II. Major Changes Resulting From New IDEIA: Some Good News and Bad

News For School Districts

A. The “Good” News a. Student Discipline b. Attorney’s Fees c. Due Process Procedures

B. The “OK” News a. IEP Changes – Have Things Really Been Simplified??? b. Paperwork Reduction…Maybe Not

C. The “Bad” News a. Integrates Language with NCLB “Highly Qualified

Teacher” requirements b. LD Eligibility – Complete Confusion

III. Brittany’s Law IV. Update on New Special Education Case Law V. Questions

TABLE OF CONTENTS Name of Handout Page # 1. NEW IDEIA ......................................................................1 - 18 2. BRITTANY’S LAW ..........................................................19 - 28 3. RECENT SPED DECISIONS............................................29 - 36 4. COMMON MISTAKES.....................................................37 - 40 5. MENTAL HEALTH PROCEDURES ...............................41 - 60

NEW IDEIA

Brooke R. Whitted Lara A. Cleary

WHITTED & CLEARY LLC 3000 Dundee Road

Northbrook, Illinois 60062 (847) 564-8662; Facsimile (847) 564-8661

www.whittedclearylaw.com [email protected]

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mailto:[email protected]

To: Whitted & Cleary Clients From: Brooke R. Whitted and Lara A. Cleary Date: April 5, 2005 Re: IDEA Re-Authorization

Client Alert

The new Individuals with Disabilities Education Improvement Act of 2004 (“IDEIA 2004”) was signed into law by the President on December 3, 2004. The Act goes into effect on July 1, 2005, with the exception of a few sections1 which went into effect immediately. A full version of the IDEA, with changes highlighted, can be found at http://www.copaa.net/IDEA/IDEA97-04COMP.pdf. To date, no action has been taken by the Illinois State Board of Education in response to the reauthorization. However, Illinois legislators are gearing up for taking action and have proposed House Bill 160 (which can be found at www.ilga.gov), which attempts to amend the School Code by prohibiting ISBE from establishing any rules and regulations which conflict with or exceed the rules and regulations2 established by the U.S. Department of Education in IDEIA 2004. Until the Federal rules are drafted, the impact upon parents and districts is unknown. A summary of the most significant changes in IDEIA follows. The full text of IDEIA 2004 is also attached for your convenience.

1 These sections are highlighted in the following pages.

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2 The rules and regulations to accompany the IDEA 2004 have yet to be published. Word from Washington is that they will be finalized and published sometime in December 2005, however when the 1997 reauthorization of IDEA occurred, this process took nearly two years.

http://www.copaa.net/IDEA/IDEA97-04COMP.pdf

http://www.isbe.state.il.us/

http://www.ilga.gov/

SUMMARY OF IDEA 2004 CHANGES

Section Change Impact Purpose: (20 U.S.C. 1400 § 601)

Adds language “to the maximum extent possible” in several sections of the purpose of IDEA.

Congress has changed the standard for special education students from merely providing “appropriate” services to providing “maximum” services. However, it should be noted that states are still only mandated to provide the current standard of “Free and Appropriate Public Education” (“FAPE”)

Definitions: (20 U.SC. 1400 § 602) “Parent”

Adds language to include foster parents and “or other relative with whom the child lives or who is legally responsible for the child’s welfare…”

Releasing information to “other relatives” of a child could be a disaster under current state confidentiality laws. Districts will have to be diligent to ensure the information they are releasing to “other family members” who claim to be responsible for the child are in fact within all federal and state exceptions.

Pilot Paperwork Reduction Project: (20 U.SC. 1400 § 609)

Adds text to allow the U.S. Department of Education to “grant waivers of statutory requirements of, or regulatory requirements relating to, Part B for a period of time not to exceed 4 years with respect to not more than 15 states based on proposal submitted by State to reduce excessive paperwork and non-instructional time burdens that do not assist in improving educational and functional results for children with disabilities.”

Should Illinois be one of the 15 states involved in this pilot program, it is difficult to imagine how it will be possible to decrease the amount of paperwork related to special education while still preserving procedural safeguards.

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Section Change Impact Related Services: (20 U.SC. 1400 § 602(26))

Changed previous text of “school health services” to “school nurse services.” Also added “interpreting services,” and specifically excluded “a medical device that is surgically implanted, or the replacement of such a device.”

The exclusion of “a medical device that is surgically implanted” is thought to relate to Cochlear implants, which is a field of special education litigation that has increased significantly in the last few years. Much of the current case law requires school districts to pay for the mapping3 of a child’s Cochlear implant, not the implantation itself.

Child Find Requirements: 20 U.SC. 1400 § 612(a)(1)(C)

Adds new language stating that districts are now required to provide child find servcies for homeless children and children who are wards of the state. Also provides that districts are now responsible for “child find” requirements for all private schools in their geographic area, and that they must meet with private school employees “throughout the year” to discuss with these representatives “types of services” “how such services will be appropriated if funds are insufficient to serve all children,” and “how and when these decisions will be made.” (continued on page 4)

This new language regarding child find requirements suggests that local school districts have to pay for some services for private school children in their area, despite the fact that the child’s parents are not residents of that school district. Current law in Illinois states that the local school district of a child in a private placement does have to serve these children, however the school district in which their parents reside has to pay for those servcies. It will be interesting to see how this affects current residency law.

3 The “mapping” of a cochlear implant is a procedure often conducted by a child’s audiologist which sets the sound parameters on each electrode at the appropriate, comfortable levels as indicated by the recipient. This procedure is required to be performed for children with Cochlear implants at least annually, with more visits needed immediately after implantation.

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Section Change Impact Child Find Requirements: 20 U.SC. 1400 § 612(a)(1)(C) (cont’d)

Districts also are required to submit a form to ISBE4 that the private school administrator has signed indicating their child find requirements have been satisfied. If a private school is not satisfied with the services the local school district is offering, they are allowed to file a complaint to the State educational agency.

See page 3

Early Intervening Services: 20 U.SC. 1400 § 613(a)(9)

States that school districts can take up to 15% (as opposed to the 5% allowed previously) of Part B special education funds “to develop and implement coordinated, early intervening services” for children K-12 who have not been identified for services but who need additional academic and behavioral support to succeed in a general education environment. Also states these funds can be used for professional development, educational and behavioral evaluations, services and supports.

4 Despite Congress’ statement that one of the goals for the 2004 reauthorization was to decrease paperwork requirements for districts, this is the first of nine new paperwork requirements for districts. A list of these new paperwork requirements is attached.

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Section Change Impact Teacher Certification: 20 U.S.C. 1400 § 612(a)(14)(C)

States that all teachers must meet the “highly qualified” requirements of the No Child Left Behind Act (“NCLB”)5 and must hold at least a bachelor’s degree.

While most school districts are already in the process of changing their teacher requirements due to NCLB, this most significantly impacts school districts who have opted out of NCLB. This now means that even those districts must comply with NCLB requirements for special education teachers.

Mandatory Medication: 20 U.SC. 1400 § 612(a)(25)

New language has been added which specifically prohibits school districts from refusing educational services to parents who choose not to medicate their children.

Parents of children with ADHD who choose not to medicate cannot be treated differently.

Timeline for Initial Case Study Evaluation: (“CSE”) 20 U.SC. 1400 § 614(a)(1)(C)(i)(I)

The new section states that school districts must complete CSE’s within 60 calendar days.

Districts are now required to conduct CSEs during winter and summer breaks: no tolling of time lines!

Section Change Impact

5 The requirements in Illinois to be considered “highly qualified” include for teachers to have a valid Illinois teaching certificate in the area of specialty (elementary, secondary or special education) and meet one of the following options: 1) pass the elementary/middle grades test or the content-area test for the area of teaching responsibility, 2) have a major or coursework “equivalent to a major,” 3) have a master’s degree or other advanced degree/credential, 4) be certified by the National Bard of for Professional Teaching Standards, and 5) Have an endorsement or its coursework equivalent that is sufficient to meet the Illinios maximum requirements for the area of teaching responsibility, have teaching experience in the area and have engaged in relevant continuing professional education.

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Reevaluations: 20 U.SC. 1400 § 614(a)(2)(B)

New language has been added to the effect that reevaulations cannot be performed more than once a year unless the school and parent agree otherwise.

Eligibility Determination: 20 U.SC. 1400 § 614(a)(5)

Language added states that children are not to be found eligible for special education services if the determinate factor is a lack of appropriate instruction in the essential components of reading instruction (as defined in the NCLB6).

This additional language suggests children can no longer be found eligible for a Learning Disability if they have not previously specifically received reading instruction based on phonics. This is the first time that the IDEA has ever identified (and required school districts to use) specific teaching methodologies

Eligibility Termination: 20 U.SC. 1400 § 614(c)(5)(B)(ii)

New language includes a provision that school districts have to provide “a summary of the child’s academic achievement and functional performance, including recommendations on how to assist the child in meeting… postsecondary goals,” upon discontinuing special education services for a child.

Specific Learning Disabilities Eligibility: 20 U.SC. 1400 § 614(b)(6)(A)

A school district is not required to take into consideration whether the child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation or mathematical reasoning.

This language dispels the belief that just because a child has a “severe discrepancy” between IQ scores in certain areas they are automatically found eligible for special education services under the LD category. Likewise, districts may no longer restrict themselves to a discrepancy analysis alone, which is what they should have been doing all along anyway.

6 The “essential components of reading instruction” as defined in NCLB include: a) phonemic awareness, b) phonics; c) vocabulary developments, d) reading fluency, including oral reading skills, and e) reading comprehension strategies.

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Section Change Impact IEPs: Multi-Year IEP Determination Pilot Program: (20 U.S.C. 1400 614(d)(5)(A)

Adds text to allow 15 states (which have yet to be identified) to develop “multi-year” IEPs (every three years) as opposed to the current annual reviews required by law.

While this initially was shocking to parent attorneys and advocates, the language included in this section still requires parental consent before implementing a “multi-year” IEP. In addition, annual goals are still required for the IEP and “an annual review must be conducted to determine the child’s progress toward the annual goals.” If the child is not progressing toward the goals, then the IEP must be redrafted. The IEP must also be reviewed at the request of a parent. As such, it appears that this provision will have little to no impact on the current standards for IEPs, in districts where parents are adequately informed.

IEPs: Short term objectives: 20 U.SC. 1400 § 614(d)(1)(A)(i)(I)(cc)

This section omits the requirements for short-term goals, and instead states that IEPs must contain “a statement of measurable annual goals, including academic and functional goals…”

It will be more difficult for parents and districts to prove definitively whether the child is meeting annual goals, as “measurable objectives” are no longer required.

IEPs: Student progress: 20 U.SC. 1400 § 614(d)(1)(A)(i)(III)

New language discontinues the need for quarterly progress reports, and instead only issues a suggestion for the progress reports to be issued “concurrent with the issuance of report cards.”

While most Illinois elementary and high schools do issue progress reports and report cards more than once a year, a district could potentially only have an obligation to track a special education child’s progress toward goals annually. If more frequency is desired, it appears it will be the responsibility of the parents to request that it be written into the IEP that the district provide more frequent reports.

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Section Change Impact IEPs: Transition Services: 20 U.SC. 1400 § 614(d)(1)(A)(i)(VIII)

The new language pushes the requirement for transition services planning from 14 to “beginning not later than the first IEP to be in effect when the child is 16…” It also requires the team to draft “appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate independent livings skills.” It also must list “the transition services (including courses of study) needed to assist the child in reaching those goals.”

This new language significantly increases the requirements for transition planning.

IEPs IEP Attendance and Excusal: 20 U.SC. 1400 § 614(d)(1)(C)(i), (ii) and (iii)

New language states that if the parent and district agree the attendance of a mandatory IEP participant is not necessary, then that member does not have to participate. Requires written agreement by the parent. In addition, language has been added to state that a mandatory member of an IEP team may be excused “in whole or in part” from attending an IEP meeting if: 1) a parent agrees in writing, and 2) “the member submits, in writing to the parent and the IEP team, input into the development of the IEP prior to that meeting.”

This might potentially mean that districts could have only one representative (the LEA representative) present at an IEP meeting as long as summary reports are provided by all other participants. Remember, an advance report by the absent participant will be required.

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Section Change Impact Procedural Safeguards: Statute of Limitations: 20 U.SC. 1400 § 615(f)(3)(D)

This new language now assigns a uniform statute of limitations (two years before the date the parents or public agency “knew or should have known”) regarding IDEA cases.

Although it was never specifically included within Illinois’ rules and regulations, case law has affirmed that the statute of limitations is generally a two-year period, so not a real change for Illinois.

Due Process Complaint Notice and Amended Complaint Notice: 20 U.SC. 1400 § 615(f)(3)(B), (D) and (E) and 20 U.SC. 1400 § 615(o)

New language indicates that after a party files for due process, the party receiving the request has 15 days to object to the sufficiency of the request. If the receiving party does not object to the request, then it is “shall be deemed sufficient.” If the receiving party does object to the request, then the hearing officer assigned to the case will determine if the request meets legal requirements. This provision also states that the party filing the due process request may not raise additional issues other than those listed in the request, at hearing, unless the other party agrees. A parent may file an amended due process complaint only in two circumstances: 1) if the other party consents in writing, and 2) if the hearing officer grants permission. However, another new provision indicates that nothing precludes parents from filing a separate due process complaint for issues not listed on previous complaints.

When IDEA was originally created, the due process provision was created in order for parents to be able to represent their own children at hearing, so they did not have to pay for lawyers. With the addition of this language, it could be argued that a hearing officer could dismiss a due process complaint on its face without an opportunity for the parent to correct the complaint. While parents are allowed to file a separate complaint with new issues listed, they might not be savvy enough to properly word their complaint and could be left with no remedy. One impression of this provision is that it could lead to “full employment for lawyers.” This takes from one and gives to the other!

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Section Change Impact Response to Due Process Complaint: 20 U.SC. 1400 § 615(c)(2)(B)(ii)

Another provision has been added that once a party has received a due process request, they are required to answer or respond to the specific issues listed in that request within 10 days.

Important new ten-day timeline!

Resolution Session: 20 U.SC. 1400 § 615(f)(1)(B)(ii)

After a district receives a request for due process, it is mandated to convene an “IEP meeting” to try to resolve the complaint within 15 days unless both parties agree to waive this meeting. The section further states that if a parent does not attend the meeting with an attorney, then the district’s attorney cannot be present at the meeting. If both parties agree to hold the meeting and resolve the situation amicably, then this IEP will be considered a legally binding agreement between both parties. However, the IEP can be voided by either party within three days of execution. If both parties have not reached a settlement within 30 days after the due process request was filed, then the hearing timelines commence.

It is believed that this provision was added to encourage resolution without the need for involvement of attorneys or hearing officers. This provision also brings into question whether parents will be able to bring nonlegal “advocates” with them (as opposed to attorneys) without the district being able to also be represented. It is also unclear when the deadlines for due process resolution begin. Some attorneys believe this section means the countdown for resolution of due process does not begin until after the “resolution session.” However, others will find ways to argue that the timeline for resolution of due process is triggered when the request is initially filed and is not stayed by any mediation or attempt to resolve the complaint. We think courts will give districts the benefit of the doubt here. `

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Section Change Impact Attorneys Fees: 20 U.SC. 1400 § 615(i)(3)(D)(ii)

A new provision has been added stating that a court may award attorney’s fees to a district “against the attorney of a parent” who: 1) files a complaint that is frivolous, unreasonable or without foundation and 2) who continues to litigate after the litigation clearly became frivolous, unreasonable, or without foundation. A district can also be awarded attorney’s fees from a parent or a parent’s attorney if the complaint was brought for “any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” The provision also states that “at the discretion of the state” attorney’s fees can be awarded for mediation, however they cannot be awarded for a lawyer’s attendance at a resolution session.

While this section first appeared shocking to most parents, it is believed that to prove a case is “frivolous, unreasonable or without foundation” will (as is now the case in all litigation) be extremely difficult. However, if a school district pursues a parent under this section, even if the parent wins, the resources utilized to defend the claim are unduly burdensome to most families.

Discipline: 20 U.SC. 1400 § 615(k)(1)(D)

This provision states that a special education child who is removed from his or her educational placement for more than 10 school days in one academic year must be provided FAPE and must also receive a functional behavioral assessment and behavior intervention services and modifications.

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Section Change Impact Manifestation Determination: 20 U.SC. 1400 § 615(k)(1)(E)

This provision poses new questions the IEP team must consider when determining whether a child’s behavior was or was not a manifestation of their disability: 1) If the conduct in question was caused by or had a direct and substantial relationship, to the child’s disability, or 2) if the conduct in question was the direct result of the school district’s failure to implement the IEP. (The previous questions were: 1) If a child’s disability impaired the ability of the child to understand the impact and the consequences of the behavior, and 2) if the child’s disability impaired the ability of the child to control the behavior)

It is believed the amended language makes it easier for a school district to determine that a child’s behavior was not a manifestation of his/her disability.

Determination that Behavior was a Manifestation: 20 U.SC. 1400 § 615(k)(1)(F)

This is a new section and states that if a district does find a child’s behavior to be related to his or her disability, then it is required to: 1) create and FBA and BIP for the child (if one was not already completed), 2) revise a child’s FBA and BIP if one was already completed and 3) return the child to his or her previous educational placement.

This new section offers parents the guarantee that if their child is suspended for more than 10 days in a year, that a FBA and BIP will be drafted.

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Section Change Impact 45-Day Removal: 20 U.SC. 1400 § 615(k)(1)(G) and (k)(1)(H)(2)

New language specifies that a child’s removal may now be implemented for 45 school days, as opposed to 45 calendar days. A third reason for removal of a child has also been added, which is for “inflict[ing] serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of the school district.” The new code has also changed the parental appeals process for these 45-day removals. The new language now states the child’s placement will remain at the alternative placement during the pendency of the dispute. In addition, the timeline for completion of an expedited due process hearing to overturn the decision to remove the child has been extended. Formerly, the requirement was for the hearing and opinion to be completed within 15 calendar days of a hearing being requested by the parents. The new language changes this from 15 calendar to 30 school days.

Taking into consideration that a typical school year is approximately 180 school days, removal for 45 days constitutes about 25 percent of the school year. There will also be considerable debate regarding the language “serious bodily injury.” The section states that the definition is defined as it is in the U.S. criminal code (18 USC §1365(3)(h), which defines it as: “(A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.” From this definition, it appears that it will be difficult for school districts to define a child’s actions as “serious bodily injury,” however case law will have to determine what is considered “serious.” The new timeline set for “expedited” due process hearings is now more in favor of districts, since 30 school days translates to about 45 calendar days.

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Section Change Impact Protections for Children Not Yet Eligible for Special Education and Related Services: 20 U.SC. 1400 § 615(k)(5)(C)

New language states that a school district is deemed to have “knowledge” that a child has a disability if, before the behavior occurred: 1) the parent of a child expressed concern, in writing, to the district, 2) the parent requested a CSE, or 3) a teacher of the child or other school district personnel expressed specific concerns about a pattern of behavior to the director of special education or “other supervisory personnel.”

New language has significantly restricted what is considered “reasonable notice” to the school district that a child may have had a disability. Former language would allow for a child’s “behavior or performance” to be sufficient notice, however the new language places added burden on the parents of a child who may have a disability to be well informed of their rights and assertively insure that concerns are brought to the school district prior to the child displaying behavior. Training is needed in this area.

Preschool Grants: 20 U.SC. 1400 § 635(c)

The new language now allows for states to have the option of creating a policy which would allow parents to choose to continue early intervention services “until such children… enter kindergarten,” as opposed to having the responsibility rest solely on the school district upon age three.

If Illinois chooses to create such a policy, then parents who choose these services will not be afforded the protections offered under IDEA for special education students until they are placed into kindergarten.

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NEW PAPERWORK REQUIREMENTS FOR SCHOOL DISTRICTS, PARENTS

(as required by IDEA 2004) 1. Letter and/or form indicating that the district’s Child Find requirements have been met satisfactorily in relation to local private schools. 2. Annual report re: early intervening services, including the number of children served and the number of students who subsequently receive special education and related services during the preceding 2-year period. 3. Summary of child’s academic achievement and functional performance, including recommendations on how to assist child in meeting postsecondary goals, upon discontinuing special education services for a child. 4. Parent signature required if both the district and the parent agree that a mandatory IEP attendee does not have to attend a meeting. (Waiver form – attached) 5. Parent signature required if both parties decide that a re-evaluation is not necessary. (Waiver form – attached) 6. Parent signature required if both parties agree that an annual review is not required. (Waiver form – attached) 7. Notice to a hearing officer that a due process complaint did not meet the legal requirements. 8. Response to due process complaint. (Cannot be form letter – must submit in 10 days) 9. Parent notification to district that child may be eligible for special education services. (suggested form letter attached)

PARENTAL WAIVER (IDEIA 2004)

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The undersigned, parents of _______________________________________, Age

_________, by signing this form acknowledge they waive the following in the conduct of

today’s IEP meeting:

(title)______________________, required IEP attendee, is a _____________________

and it is agreed that he/she does not need to attend today’s IEP meeting;

A re-evaluation in the domain(s) of _____________________________________

__________________________________________________________________

is not required at this time;

An annual review meeting is not required at this time, and it is agreed that current IEP

services will continue into the next academic year.

The undersigned recognizes and agrees that he/she has the right to the item waived and, knowing this, chooses to waive the item at this time.

X: _________________________________ Parent/Guardian/Surrogate Witness:_________________________ Date: _____________________________ Title: _________________________

Prepared by Whitted & Cleary LLC, 3000 Dundee Road, Suite 303, Northbrook, IL 60062 (847) 564-8662 Fax: (847) 564-8419 www.whittedcleary.com

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NOTIFICATION OF POSSIBLE ELIGIBILITY (to be sent by certified mail)

To: _____(school superintendent)_________ Re: _______(name of child)_______, Age ________, DOB _____________ Dear Superintendent __________________: I write to advise you that I believe my child is eligible for special education services.

The reasons for this belief are: ____(describe poor grades, behaviors, etc.)____

_______________________________________________________________________

_______________________________________________________________________

Please arrange for a Case Study Evaluation of my child at the earliest opportunity. Sincerely, ______________________________________ Parent

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BRITTANY’S LAW






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MEMO To: Clients From: Whitted & Cleary, LLC Date: March 22, 2005 Re: Client Alert - Brittany’s Law On January 21, 2005, our Governor signed “Brittany’s Law,” P.A. 93-1079, which required districts to adopt policies and procedures to allow students with disabilities in special education, who have completed four years of high school, to participate in the graduation ceremony with their peers, even if they have not met the criteria for graduation. Students who will be returning to school following the graduation ceremony for additional schooling pursuant to their IEP should be provided a “certificate of completion” at the ceremony in lieu of a diploma. The new policies and procedures were due by March 1, 2005 and do affect the graduation ceremonies for this school year. In addition the new law requires that the student and the parent(s) be provided “timely and meaningful” written notice of the new policy. The law is silent as to what is considered both “timely” and meaningful.” Given the vague nature of this law, many districts around the state are confused about their responsibilities. Set out below are some questions we have received from a client regarding this new law, as well as our advice: 1. If a student walks through graduation and receives a certificate of completion, can

they walk through graduation again when they reach age 21, and if so, then receive a “regular” diploma?

ANSWER The law itself (attached) speaks to the importance of allowing students in special

education who will be staying in high school past the traditional four years the opportunity to walk across the stage with their “classmates” and to celebrate their accomplishments together, and it specifically states that this opportunity “only

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occurs once.” Therefore, given the plain language intent of the law, our advice is that a district does not need to allow a student who has elected to walk through the graduation ceremony after four years the opportunity to repeat the process upon aging out of the system at 21. With regards to the latter half of the inquiry, the current state of the law is that a student with a disability need only receive a diploma if that child has “satisfactorily completed a secondary program.” If by age 21 that child has completed the necessary credits for completion, then that student may receive a diploma.

2. If a school district awards diplomas to all special education students in a district, is

it okay to award a certificate of completion to those students who walk after their fourth year of high school and plan to continue receiving IEP services beyond the fourth year?

ANSWER Yes, except these districts may want to review their policies regarding the blanket

awarding of diplomas to students that remain through age 21. The Illinois special education rules at 23 IL. Admin. Code 226.50(k)(4) (attached) indicate that a student with a disability that has “satisfactorily completed a secondary program shall be granted a regular high school diploma.” Although we understand that many schools are hearing that post-21 agencies require a “diploma” to initiate services, this is incorrect. Students who are unable to meet the graduation requirements are not required by our special education rules to receive a diploma. These students may be awarded a certificate of completion, which the post-21 agencies must accept for services. Certainly, a district may elect to allow significant accommodations and modifications to the graduation requirements and award a diploma, but it is not required to do so under Illinois law.

3. If a student walks through graduation and receives a diploma and later decides

they want to access IEP services, are districts obligated to offer those services (through an IEP process)?

ANSWER

No, if the student is offered by the district and elects to take a regular high school diploma after four years then that student is no longer eligible for special education services. 23 IL. Admin. Code 226.50(k)(3) (attached as exhibit B), clearly states “The provision of FAPE is not required with respect to a student with a disability who has graduated with a regular high school diploma or its equivalent.”

4. Which parents are we required to contact in a “timely and meaningful” fashion? If

the student is 18 years old and are their own guardian, are we obligated to notify them and not the “parents”?

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ANSWER

Brittany’s Law currently states in paragraph (b) that the notice must be provided to the parents and the student, without distinguishing the age of the student. Unless the law is rewritten, we advise that both the parent(s) and the student be notified regardless of the age of the student. If the parent(s) and student live in the same home than one notice should suffice. Continue to notify the same parent or parents that you would notify regarding any IEP services.

5. If any student (e.g. BD/ED) is deficient in graduation credit and has completed four

years of high school, can they walk through graduation and receive a certificate of completion? They would have an IEP recommending services for that fifth year, but would not be a student who typically stays in school to receive services through age 21.

ANSWER

This is probably the most controversial aspect of this new law, and the main reason that a group of lawyers is working with the Congressperson who initially introduced the law to rewrite the language. The confusion stems from Paragraph (b) where it states that a student may “walk” and receive a certificate of completion if that student’s IEP “prescribes special education, transition planning, transition services, or related services beyond the student’s 4 years of high school.” Unfortunately, this language does seem to include any special education student remaining in school beyond 4 years. We are attempting to obtain a rewrite of the law that in part eliminates the comma between “special education” and “transition services” to more succinctly incorporate the population of students for whom the law was intended, i.e. lower functioning students that likely were slated to stay in school until 21 from the moment they started high school as opposed to students with mild disabilities who simply failed to meet graduation requirements. Unfortunately, given that rewritten language is unlikely prior to the 2005 graduation season, we are advising school districts that the current language of the law does appear on its face to support allowing any student receiving special education services who will be remaining past 4 years of high school the opportunity to walk through graduation and receive a certificate of completion. The only caveat is that a student barred from attending the graduation ceremony as a consequence for a disciplinary action would still not be able to participate.

6. I think the confusion with all of this is our past practice of giving those very severely

disabled special needs students “diplomas”, not certificates of completion, when we know that they have not even come close to meeting academic credit requirements. In your mind, then, is there a distinction between students like these and those less disabled kids who do indeed earn academic credit, the former

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receiving the “certificate” and the latter receiving the diploma? We need, as a cooperative, some legal advice about what counts as “credits” toward graduation.

ANSWER

Yes, see the answers to numbers 1 & 2 above. There is clearly a distinction between these two categories of students. While the IDEA, Section 504, and the ADA require “reasonable” accommodations in the basic graduation requirements, none of the laws require a district to significantly alter the intrinsic nature of the program. For example, a district may allow a child with a physical disability to substitute health for the PE requirement towards graduation, or a child with a severe learning disability to substitute a different class for a challenging foreign language, however, it does not require a school to actually award a regular diploma to a cognitively impaired child who simply can’t meet graduation requirements without significant accommodations. Unfortunately, it is a very fact specific analysis made on a case-by-case basis.

7. What “language” should be on a certificate of completion…is there a template that

you would recommend we use? Likewise, on the “graduation booklet” distributed at graduation ceremonies, would it appear on the program that a student who is really receiving a “certificate of completion” be listed as one who is graduating?

ANSWER

We would be happy to review any district’s language on their certificates of completion and suggest alterations. The certificate basically may state that the child has completed four years of school and can state that it is not a standard high school diploma. It should not indicate that the child has a disability. Accordingly, the graduation booklet should not distinguish between the two groups and certainly should not distinguish any students as having disabilities.

8. If a student attends part of their high school years in a non-credited institution

(such as a psychiatric hospital that does not offer academic credit), would that time count as any credit towards either graduation or completion of high school?

ANSWER

Maybe. Again, this is a very fact specific analysis. For example, if the student was actually attending full-time high school level classes in the placement then it may count, if you have been provided proof of the placement. Certainly if the student has been awarded regular high school credits for the classes then we believe it would count.

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9. If a student gets to walk through graduation after four years and receives a certificate of completion, and then opts NOT to return to high school to receive his/her services on an IEP, what is a local district to do? Would this student ever be able to receive a “regular” diploma under these conditions?

ANSWER

Unfortunately, there is simply not much that a school district may do to safeguard against this very thing occurring. It is a concern of many districts across the state, and a large reason why we are trying to have the law rewritten more clearly to truly address only the targeted population. Certainly you may caution students and their parents that a certificate of completion is not a diploma and will not provide the same benefits, such as admission to college. Regarding the latter half of the question, the student would only be allowed to receive a diploma if that student returns to school and completes the credits necessary for such a diploma.

10. On our IEP transition forms, what “language” would be appropriate with respect to

“graduation date”, now that we have Brittany’s law? Would we need more specific wording?

ANSWER

No, simply walking through the ceremony and receiving a certificate of completion is not graduation. The IEP language need not change. For a student that is intended to stay through 21 continue to put that year of school. For all other students, it is implied that four years is the standard.

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29

RECENT SPECIAL

EDUCATION DECISIONS






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I. PROCEDURAL ISSUES

A. Burden of Proof JH v. Henrico County Sch. Bd, 42 IDELR 199, 105 LRP 2852 (4th Cir. January 20, 2005 ).

In this case the 4th Circuit Court of Appeals relied on a ruling it had made only months below in a similar case, Weast v. Shaffer (see below), and remanded to a hearing officer for the third time stating that the hearing officer should have placed the burden of proof on the parents, not on the school district. The student, who has high-functioning autism, was in a public school’s general education program with special education and related service for the regular school year. The public school district offered an extended school year program to the student with similar services as offered during the regular school year, but at reduced levels. The student’s parents disagreed, arguing that the student should have a high level of services during the summer program in a smaller setting in order to avoid regression, and they took the case to a due process hearing. The hearing officer found in favor of the parents, concluding that the district had failed to prove that its extended school year IEP was appropriate to prevent the student from regressing during the summer and to prevent the gains he made from being significantly jeopardized. On appeal, the 4th Circuit reversed the hearing officer’s decision, but refused to render a decision on the merits of the case, stating “Unbeknownst to the Hearing Officer and the parties at the time of the administrative hearing on [the first] remand, the hearing officer erroneously placed the burden of proof on the [school]. Under our recent decision in Weast, issued long after the conclusion of the proceedings in this case below, the Hearing Officer should have placed the burden of proof on the Plaintiffs.” Therefore, the Court remanded the case back to the hearing officer with specific instructions to reweigh the conflicting evidence with the burden of proof “properly” allocated on the parents to answer the question of whether the IEP was appropriate. Weast v. Schaffer, 41 IDELR 176, 104 LRP 35502 (4th Cir. July 29, 2004). The parents of a student with ADHD and learning disabilities challenged their public school district’s decision to educate their son at his home school. The parents believed that this child required a smaller class size, placed him in a private school and then requested reimbursement of the tuition and other expenses for the student’s private school education. At the original due process hearing, the hearing officer assigned the burden of proof to the parents. Both sides submitted extensive expert testimony, and the hearing

31

officer considered the case to be “close” but ultimately found that the parents had not met their burden and upheld the IEP offered by the school district. On appeal, the district court reversed, finding that the hearing officer had erred in assigning the burden of proof to the parents, and remanded back to the hearing officer for further proceedings. Following the remand, where the hearing officer held in favor of the parents with the reallocated burden of proof, the case was again appealed. Ultimately the 4th Circuit, after reviewing how many of the other circuit courts allocated the burden of proof, decided that there was “no reason to depart” from the generally held rule in law that the party seeking relief, here the parents, had the burden of proof. The court reasoned in part that Congress specifically took care to provide comprehensive procedural protections to parents in order to level the playing field. Although the Seventh Circuit has not specifically ruled on this issue, the majority of Illinois State hearing officers assign the burden of proof to the school district. This is the majority view, in line with the Second, Third, Eighth, Ninth and D.C. Circuits. See, Walczak v. Fla. Union Free Sch. Dist. 142 F.3d 119 (2nd Cir. 1998), Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520 (3rd Cir. 1995), E.S. v. Independent Sch. Dist. No. 196, 135 F.3d 566 (8th Cir. 1998), Clyde v. Puyallup Sch. Dist. No. 3, 35 F.3d 1396 (9th Cir. 1994), and McKenzie v. Smith, 771 F.2d 1527 (D.C. Cir. 1985), respectively. In ruling that the parents have the burden of proof in a due process hearing, the Fourth Circuit adopted the minority view also held by the Fifth, Sixth, and Tenth Circuits. See Alamo Heights Indep. Sch. Dist. v. State Bd. Of Educ., 790 F.2d 1153 (5th Cir. 1986), Cordrey v. Eukert, 917 F.2d 1460 (6th Cir. 1990), and Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022 (10th Cir. 1990) respectively. On Tuesday, February 22, 2005 the Supreme Court agreed to hear the Weast appeal. In its 2-1 decision in Weast , the 4th Circuit acknowledged that the Circuits were split on the issue, and of course, with the Weast decision as it currently stands, they are now almost evenly split on this issue. No timetable for the High Court’s decision is available, but a ruling is expected by June, 2005.

B. Other Procedural Issues

Veazey v. Ascension Parish Sch.Bd. 42 IDELR 140, 105 LRP 819 (5th Cir. January 5, 2005).

The Fifth Circuit concluded that a school district is not required to provide the parents of a child in special education with prior written notice before it implements a change in the location of a school program, because such a change is not necessarily a change in placement pursuant to the language of the IDEA. In this case a school district transferred a student with a hearing impairment from his neighborhood school that was three miles

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from his home to another school located seven miles from his home but did not change his program. In addition, the transfer required the student to now take a special education bus, where he previously could take a regular education bus. The court held that prior written notice was not necessary because the IEP placement had not changed, just the location, and the bus change itself was not a “fundamental change.” Moreover, they found no evidence that the changes in the bus or the location of the program in any way altered the fact that the IEP was reasonably calculated to enable him to receive educational benefits by providing him with the “requisite basic floor of opportunity.”

County Sch. Bd. Of Henrico County v Z.P. by R.P., 105 LRP 6113 (4th Cir. February 11, 2005).

The Fourth Circuit ruled that the lower court erred when it failed to give appropriate deference to a due process hearing officer’s determination that a proposed IEP was inappropriate and denied the student FAPE. Specifically, the 4th Cir. faulted the district court for reversing a hearing officer’s decision to award private school reimbursement to the parents of a preschool student with autism, stating that the hearing officer’s decision to accept the parent’s evidence over the district’s was not alone a reason for the district court to reject the hearing officer’s findings. The requirement to give deference to the professional educators opinions did not mean that the hearing officer, after giving deference and considering the evidence, was obligated to accept the district’s testimonial evidence over that presented by the parents. The 4th Circuit reasoned that such a rule “would render meaningless the due process rights guaranteed to parents by the IDEA.” II. RESIDENTIAL PLACEMENTS

Lamoine Sch. Committee v. Ms. Z ex rel. N.S., 42 IDELR 172 (D. Me., January 4, 2005)

The parents of a sixteen-year-old student with reading, writing, language and math learning disabilities and emotional disabilities were entitled to reimbursement for their unilateral placement of the student in private residential school. A Maine District Court ruled that a due process hearing officer did not err in finding that the school district’s IEP had failed to address the student’s attendance issues and failed to provide adequate educational, behavioral and emotional supports. Westford Pub. Schs., 42 IDELR 162 (SEA MA, December 22, 2004). A hearing officer determined that a district’s “collaborative education” program for an eighteen-year-old student with autism and diabetes was appropriate and denied the parents request for a residential placement. Specifically, the district was offering placement in a collaborative educational center that would allow the student to participate in classroom and community experiences with vocational instruction at a 1-to-2 ratio, a 1-

33

to-2.5 classroom ratio, off-site community experiences, and an LPN or RN aide for insulin shots and medical monitoring. In addition, the district’s program allowed the student the opportunity to transition into an adult-based program once he reached age 22. San Diego Unified Sch. Dist., 42 IDELR 47 (SEA CA. August 12, 2004) In this case a hearing officer upheld the decision of a California school district to place a fifth grade student with bipolar disorder, major depression and childhood psychosis in a residential facility. The hearing officer determined that the district had appropriately considered less restrictive alternatives prior to recommending the residential placement. The residential placement was deemed appropriate because it conformed to the student’s behavioral needs and provided him with the advantages of medication monitoring, structure and frequent therapy. III. REMEDIES

McCormick ex rel. McCormick v. Waukegan School District #60, 41 IDELR 148, 104 LRP 32195 (7th Cir. July 7, 2004).

The Seventh Circuit concluded that a ninth-grade student with McArdle’s disease, a rare form of Muscular Dystrophy, who incurred permanent kidney damage because his physical education teacher failed to adhere to his IEP, was not required to exhaust his administrative remedies before bringing suit against his school district and several employees under Section 1983 and several state tort-law theories. He sustained the physical injuries as a result of the teacher’s instructions to run laps and do push-ups in contravention of his IEP. The Court explained that exhaustion would be futile because the student sought remedies for solely physical, not educational or “emotional” injuries, and the IDEA does not provide for remedies in such a situation. Exhaustion of remedies is excused if the IDEA’s administrative processes cannot remedy a student’s damages. It is important to note that the Court carefully distinguished this case from the Charlie F. v. Board of Education of Skokie School District 68, 98 F.3d 989 (7th Cir. 1996) case, where the plaintiffs were required to exhaust the IDEA process even though there were seeking only monetary damages. Thus in McCormick, the outcome turned on the nature of the injury and not the type of compensation requested.

Ortega ex. rel. Ortega v. Bibb County Sch. Dist., 42 IDELR 200, 105 LRP 3846 (11th Cir. January 26, 2005).

The parents of a deceased four-year-old student sued a school district after the student asphyxiated and died when his tracheotomy tube dislodged at school. The suit claimed in part that parents were entitled to monetary relief for the child’s death because the district violated the IDEA by failing to have a person capable of reinserting the tracheotomy tube at the time of the incident in question. At the district court level the school district moved

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for summary judgment claiming that the child’s death rendered the parent’s IDEA claim moot. The District court denied the motion, determining that it had discretionary authority under the IDEA to grant relief in the form of monetary damages. The issue before the Eleventh Circuit was simply whether tort-like money damages are available under the IDEA. The Eleventh Circuit held that the IDEA does not provide monetary relief and reversed the decision of the district court, remanding with instructions to award judgment to the district. The court reasoned that the IDEA does not provide monetary relief because its primary purpose is to ensure students FAPE and “not to serve as a tort-like mechanism for compensating personal injury.” However, the court noted that the IDEA does not restrict or limit remedies available under other federal laws, and that other statutes serve as possible avenues for recovery for IDEA violations. IV. ATTORNEY’S FEES T.D. v LaGrange School District No. 102, 40 IDELR 32 (7th Cir., November 14,

2003) On November 14, 2003, a decision rendered by the U.S. Court of Appeals for the Seventh Circuit has changed the law in Illinois to preclude a parents’ reimbursement for expert fees when they are prevailing parties and has clarified the law regarding reimbursement of attorneys fees in IDEA cases. This decision, T.D. v LaGrange School District No. 102, 40 IDELR 32, determined that the case of Buckhannon Board & Care Home, Inc. v West Virginia Department of Health and Human Services, 532 U.S. 4598 (2001), which involved the federal Americans with Disabilities Act and Fair Housing Amendments Act, did apply to IDEA cases, and as such, parents who achieve a remedy through settlement agreements thus prior to a hearing or “some sort of judicial imprimatur,” are not “prevailing parties” entitled to the reimbursement of attorneys fees. However, the Seventh Circuit’s opinion in T.D., like the Buckhannon decision, did provide one caveat to collecting attorney’s fees in some settlement situations – if the settlement is not merely private (between two parties), but is filed and ordered through the courts, like a consent decree, then there can be argument that those parents would be considered “prevailing parties.” Of course, attorney’s fees are still available to parents deemed prevailing parties through a due process hearing or court action. Doe v. Boston Public Schools, 40 IDELR 176 (1st Cir. February 6, 2004). The parents of a 19-year-old mentally disabled student sought attorney’s fees despite the fact that they had settled the case just prior to the first day of a due process hearing with the local school district. At the administrative level, the parents requested for the hearing officer to sign and read into the administrative record the settlement agreement, however the hearing officer refused. On appeal, the district court found that Buckhannon applied to IDEA cases and as such, the parents were not “prevailing parties” and were not entitled

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to attorney’s fees. The appellate court upheld the district court’s ruling, and found that Buckhannon “is presumed to apply generally to all fee-shifting statutes that use the ‘prevailing party’ terminology, including the IDEA,” thus adding the 1st Circuit with the 2nd, 3rd and 7th Circuits.

Evanston Community Consolidated Sch. Dist. No. 65 v. Michael M. and Christine M., 42 IDELR 116 (N.D. Ill. November 24, 2004).

On remand from the Seventh Circuit, the Northern District of Illinois concluded that a student was entitled to 70% of his attorney’s fees. The Seventh Circuit opinion is reported at 356 F.3d 798. The district court judge determined that the parents prevailed on three out of the 11 total issues at the due process level, however those three issues were “at the heart of the parties’ dispute.” The judge determined that it would be difficult to determine how much time was exactly spent on those three issues from reviewing the parents’ attorney’s billing records, and reduced the amount of fees awarded to reflect the degree of success obtained by the student.

Justin B. v. Laraway Community Consolidated School District, 41 IDELR 207 (N.D. Ill. July 23, 2004).

The district court determined that the statute of limitations for filing for attorneys fees begins not from the date of the administrative order, but from the date when the administrative order becomes “final,” which occurs when the time for the district to challenge the decision expires or, if the district proceeds with a judicial challenge, until 120 days after exhaustion of judicial remedies. V. FREE AND APPROPRIATE PUBLIC EDUCATION

Greenland School District v. Amy N., 40 IDELR 203 (1st Cir. February 23, 2004)

In this case, the appellate court ruled on a parent’s right to reimbursement of tuition for a unilateral private day school placement. The parents of a ten-year-old girl diagnosed with LD, ADHD and Asperger’s Disorder pulled their child out of the public school after she began suffering academically and required private tutoring services twice a week in order to complete homework assignments. At no time while the girl was still attending the public school did the parents request a CSE or special education services. It is important to note that the mother of this child was a special education teacher herself, to which the appellate court gave weight as the parents were therefore aware of the proper procedures for requesting special education services. Shortly after the girl was unilaterally placed in a private day school, the parents contacted the public school district and requested a psychological evaluation be conducted. The district did conduct a full CSE and drafted an IEP for the girl which recommended placement at the public school with a 1:1 aide,

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counseling services, speech language services and the use of social stories use in the classroom. The parents refused the recommended placement and filed for due process to receive retroactive reimbursement for her day school placement. The due process hearing officer found in favor of the parents, stating that the district did not provide FAPE to the girl, that it violated its child find obligations by not finding her eligible for services at the public school, and that the child’s return to the public schools was not appropriate and awarded the parents total reimbursement for the day school. On appeal, the district court judge partially reversed the administrative decision, finding that since the girl was unilaterally placed at the private school prior to her being found eligible for services, an administrative court did not have authority to consider the issue of FAPE, only child find issues and found in favor of the parents on that issue. The district then appealed the district court’s ruling. In reviewing the case, the appellate court found that the 1997 amendments to the IDEA established that complaints about services a privately-placed disabled student “must be brought through the state administrative complaint system rather than a due process hearing.” (34 CFR § 30.457(a)(c)). The appellate court also stated that “tuition reimbursement is only available for children who have previously received ‘special education and related services’ while in the public school system (or perhaps those who at least timely requested such services while the child is in public school).”

Alex R. by Beth R. v. Forrestville Valley Community School District #221, 41 IDELR 146 (7th Cir. July 15, 2004).

After a hearing officer ordered a special education student who suffered from a rare neurological syndrome and a history of violent behavior be returned to regular classes, the Seventh Circuit Court of Appeals ruled the district acted properly in managing the student’s IEP and placing him in a self-contained program. The Court reasoned that it was proper to consider the student’s disruptive impact on other students in designing his educational program, finding that this component must be addressed in the student’s IEP. In addressing the parents’ argument that the district should have provided additional services in years past to prevent the behavioral crisis, the Court noted the absence of guidance for behavioral intervention plans. Specifically, the Court noted that neither the IDEA, nor its implementing regulations, provide specific substantive components for a behavior intervention plan. Instead, the contents are a matter of state law, local policy and professional practice. Generally, however, the IEP should describe the behavior of the student that is interfering with learning, the expected behavioral changes, and the positive strategies and supports that will be used to change the behavior.

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COMMON MISTAKES






38

Common mistakes can lead to court School districts as well as parents often

make common mistakes that result in

formal hearings or court cases that could

be avoided. These repetitive issues that

arise when disputes between parents and

school districts reach official levels

could be avoided by following some

practical advice.

to vent and to conclude that you are

sympathetic and able to lend a sup-

portive ear.

Common mistake #3:Brooke R. Whitted is a partner with the Chicago law firm of Whitted & Cleary LLC. He represents a number of child welfare agencies and professional associations as well as private schools, schools for disabled chil-dren and several public school dis-tricts in the area of special education.

Categorical treatment

manifested as "zero tolerance"

Often, parents appear in the

lawyer's office and say they approached

an educator for a service and were told,

"We don't do that." Or, "Children with

your child's disability all go to the XYZ

Program." Or, "It's my way or the

highway."

Common mistake #2:

Not following through

The most frequent complaint to

parent legal representatives is that the

school district has not been com-

municating and/or has not done what it

said what it was going to do. Nine times

out of 10, when a school district has

failed to follow through, the parents also

voice frustration with an almost

immediate defensive denial on the part

of the administrator involved: "That's not

what I meant to say" or " I never said

that!"

Common mistake #1: Categorical treatment, within which

zero tolerance falls as a subset, is a

sure-fire way to drive parents insane. A

better idea is what federal and state laws

say a school district must do: treat each

situation on a case-by-case,

individualized basis. This way,

parental confidence in the ability of the

school district to meet the individual and

unique needs of their children will be

raised, and a greater rapport will be

established between district and parents.

Failure to make sufficient

use of interpersonal

skills

In about half of the cases, disputes

are really personality conflicts, resulting

when interaction between school staff

and a parent becomes so strained that

there is no room for compromise. School

staff in the field are the best equipped to

identify "high maintenance/high risk"

families: those whose sufficient anguish

may lead to anger and frustration

directed squarely at school district

personnel. Just as with disabled children,

disabled families need a special

approach. Listening goes a long way.

Not listening and power struggles cause

disputes.

These parents are often met with an

unequivocal denial that the commitment

was ever made or that a service was ever

promised, rather than an apology and a

quick, direct correction of the mistake.

This infuriates already frustrated parents,

who admittedly are under pressure (and

often angry) by the time they get to the

office of an attorney. Better to face up to

an error (if there was one) and move on

than to deny the error ever occurred,

incurring the hostility and wrath of the

parents.

Moreover, any educator should

recognize that, with young children at

the early elementary level, they are

likely to be compelled to work with

these families for at least another six or

seven years. To start off the relationship

in a hostile fashion only allows it to

fester through the years, building

hostility rather than happiness.

This is the easiest category of

mistakes to avoid. When listening to

parents, give them the opportunity

39

With good interpersonal skills,

however, staff can turn potential parental

enemies into some of the district's top

supporters.

can continue to have confidence terms and avoid $10 words or vague

that communications are open and acronyms. Offer further explanation

honest. To say nothing fosters when parents seem confused. Avoid

suspicion. Suspicion fosters officious behavior.

lawsuits.

Refusal to provide

a mandated

service

The courts become quite upset with

school districts that blatantly refuse to

provide a service the law clearly

mandates. Not only does this cause

disputes, but it risks incurring personal

liability against school board members

and administrators for not providing the

clearly mandated service. Many

examples in decisional case law exist in

which personal liability has been

imposed for this reason. Common mistake #6:

Secretive behavior

Often, parents will appear in the attorney's office and say, "The school district completed their case study in 61 school days. Can I sue them" The answer is usually no, because a procedural violation, to be actionable, must be serious. A delay of a few days is human, not serious. A delay of a year or two is serious and actionable. A delay of months -or years - without explanation or even a simple phone call to the parents is likely to be serious.

Common mistake #4:

Sometimes parents can make mistakes

as well.

Secretive behavior includes refusals

to be open with parents about what is

going on in their child's program.

Restrictive visitation/observation rules,

resisting discussions of methodology

and/or doctrinaire adherence to a

particular methodology are all good

examples.

Common mistake #5:

Graphic procedural violations Common parental mistake #1:

Desire to fight for

the sake of fighting Often, parents will appear in the

attorney's office and say, "The school

district completed their case study in 61

school days. Can I sue them?" The

answer is usually no, because a

procedural violation, to be actionable,

must be serious.

Often, parents are so angry and

frustrated over a child's difficulties that

they want to displace their anger

squarely on the district, sometimes for

no apparent reason. Often, even after an

attorney obtains everything the parents

are seeking without a hearing (and this is

the attorney's duty if at all possible),

parents then become angry that they

have not had their "day in court," or that

they have to pay attorney fees.

In a classic example, the parent of a

cochlear implant child might think oral

education is better. The district restricts

visitation of the proposed program by

the parent so she won't see the extent to

which ASL is really being used. This is

deceptive and fosters suspicion. And, as

mentioned, suspicion fosters disputes.

A delay of a few days is human, not

serious. A delay of a year or two is

serious and actionable. A delay of

months - or years - without explanation

or even a simple phone call to the

parents is likely to be serious. Likewise, use of fuzzy bureaucratic

terms or acronyms that parents can't

understand falls within the

"secretiveness" category. If parents don't

understand what is going on, they will

become suspicious. Rule of thumb:

These families will want to fight

regardless of what you do. Nothing will

please them. At some point, it is nec-

essary to draw the line, grit your teeth

and conclude that the family will never

be happy, even when the educators'

efforts to satisfy the needs of the child communicate in simple, understandable

If a school district knows it has

incurred such a procedural violation, the

best policy is to communicate with the

parents immediately and offer a truthful

explanation as to why there has been a

delay. This way, school districts can be

as transparent as possible and the parents

JULY - AI'GUST 2001 / THE ILLINOIS SCHOOL BOARD JOURNAL

can be described as Herculean, as was done by a judge in one case.

miscalculation, hold to the deal you've made.

approach with families that manifest this kind of dysfunction will usually engender respect, although there can be times when such a plan might backfire. Use your judgment!

Common parental mistake #3:

Not listening, or taking

everything as a promise

Common parental mistake #2: Greed

Sometimes, school districts enter into an amicable settlement, either orally or in writing, for a reasonable retroactive reimbursement. However, on the day the agreement is supposed to be finalized, the parents ask for more! From a school district perspective, this should not be tolerated in very many cases.

Sometimes events are visualized by members of a family under severe stress - or with a multitude of bor-derline personality disorders - which never occurred. These families also tend to thrive on conflict, so it is of no use to engage in confrontations.

The best approach is to pin down every communication with written correspondence (return receipt) to clarify the communication and ensure that all communication is accurate and, of course, truthful. A firmer

If everyone has bargained in good faith, there is no reason to reverse positions just because of greed. Without some very compelling reasons, or a significant

40JULY - AI'GUST 2001 / THE ILLINOIS SCHOOL BOARD JOURNAL

MENTAL HEALTH PROCEDURES:

ADMISSION DISCHARGE MEDICATION/TREATMENT RIGHTS OF MINORS





41


42

MENTAL HEALTH COURT PROCEDURES

NOTE: Unless otherwise noted all citations are to the Illinois Mental Health Code, 405

ILCS 5/1-1 et. seq.

INTRODUCTION

These proceedings should not be conducted pro forma. Fundamental liberty interests are involved in proceedings under the Code. The Code's procedural safeguards are not mere technicalities but essential tools to safeguard these liberty interests. Accordingly, those procedural safeguards are construed strictly in favor of the respondent and must be strictly complied with. The petitioner bears a substantial burden of proof that the trial judge should force the petitioner to meet with real, clear, and convincing evidence before the court enters an order infringing on the respondent's important liberty interests.

- In re John R., 339 Ill.App.3d 778 (5th Dist. 2003)

DEFINITIONS Discharge: Means the release of any person admitted or otherwise detained under this Act from treatment, habilitation, or care and custody. §5/1-109 Mental Health Facility: Means any licensed private hospital, institution, or facility or section thereof, and any facility, or section thereof, operated by the State or a political subdivision thereof for the treatment of persons with mental illness and includes all hospitals, institutions, clinics, evaluation facilities, and mental health centers which provide treatment for such persons. §5/1-114 Minor: Means a person under 18 years of age. §5/1-117 Recipient: Means a person who has received or is receiving treatment or habilitation services. §5/1-123 Treatment: Means an effort to accomplish an improvement in the mental condition or related behavior of a recipient. Treatment includes, but is not limited to, hospitalization, partial hospitalization, outpatient services, examination, diagnosis, evaluation, care, training, psychotherapy, pharmaceuticals, and other services provided for recipients. §5/1-128

43

PROCEDURAL PROTECTIONS/ NOTICE REQUIREMENTS I. NOTICE OF RIGHTS – Upon commencement of services, or as soon thereafter as the

condition of the recipient permits, every recipient who is 12 years or older and the parent or guardian of a minor or person under guardianship shall be informed orally and in writing of their rights. Every facility shall post a summary of the relevant rights in a public area of that facility. §5/2-200(a) (emphasis added).

II. RECIPIENT’S RIGHT TO DESIGNATE PERSON TO RECEIVE NOTICE – a

recipient who is 12 years or older and the parent or guardian of a minor or a person under guardianship can at any time designate a person or agency to receive notice or information about the recipient. §5/2-200 (b)

III. NOTIFICATION OF INTERESTED PARTIES – Upon the commencement of

services the mental health facility must ask the recipient whether the recipient wants the mental health facility to contact a spouse, parents, guardian, close relatives, friends, attorney, advocate from Guardianship and Advocacy, or others to inform them of the recipients’ admission. The mental health facility must contact at least 2 of the people named by mail or telephone. §5/2-200 (c) (emphasis added).

IV. STATEMENT OF RIGHTS PRIOR TO EXAMINATION – Whenever a petition is

filed for involuntary admission of adults or a petition to review admission of a minor, and prior to the examination for the purpose of certification of a person 12 or older, the person conducting this examination shall inform the person being examined of (1) the purpose of examination, (2) that he does not have to talk to the examiner, (3) statements made can be used at court proceedings on the issue of whether he is subject to involuntary admission. If the person being examined is not informed of these rights, the examiner is not permitted to testify at subsequent court hearings. §5/2-208 (emphasis added).

V. INDEPENDENT EXAMINATION – At a hearing that seeks to subject respondent to

involuntary admission or treatment, respondent is entitled to secure an independent examination by a physician, qualified examiner, clinical psychologist or other expert of his choice. §5/3-804

CASE LAW (What is an “expert”?): The Illinois Supreme Court found that the

legislature intended that the court appoint an independent expert appropriate for the nature of the proceeding. Therefore, the appointment of an unlicensed intern with a master’s degree in psychology was not appropriate in a hearing to subject a person to involuntary treatment. The potentially harmful side effects of psychotropic medications were beyond the intern’s expertise and required a “medical expert.” In re Robert S., 213 Ill.2d 30 (2004).

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ADMISSION AND DISCHARGE OF ADULTS I. ADMISSION A. Informal: Any person may be admitted to a mental health facility through an “informal”

admission, where the director of the facility considers that person “suitable for admission” on an informal basis. This procedure does not require a formal voluntary application. Each recipient admitted under this section shall be informed in writing and orally at the time of admission of their right to be discharged at any time during normal day shift hours. §5/3-300

B. Voluntary: 1. Form: Any person age 16 or older may be admitted to a mental health facility as

a voluntary recipient for treatment. §5/3-400 2. Execution: The person seeking admission, if 18 or older, or any interested party at the

request of the person seeking admission, if 18 or older, may execute the application for admission as a voluntary recipient. In addition a minor, 16 or older may execute the application himself. The minor will be treated as an adult and subject to all the provisions under Article IV (Voluntary Admission of Adults). The minor’s parent, guardian or person in loco parentis shall be immediately informed of the admission. (emphasis added).

C. Involuntary: In order to proceed with a court hearing for the purpose of involuntary

hospitalization, the following steps must be taken and followed strictly. Unless the documents are dated and prepared properly, the petition will be dismissed and the patient ordered discharged. There are two possible procedures for subjecting an individual to involuntary commitment, Emergency Admission by Certification (§5/3-600) and Involuntary Admission Upon Court Order (§5/3-700)

1. The Requirements for Both Articles 600 and 700 a. In either procedure a petition must be filed asserting that person

is subject to involuntary admission and that “immediate hospitalization is necessary” for the protection of such person or others from physical harm. § 5/3-601(a)

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b. The Petition shall include all of the following: (1) Reasons:

A detailed statement of the reason for the assertion that the

respondent is subject to involuntary admission. (2) Contacts/Family: The name and address of the spouse, parent, guardian,

substitute decision maker, if any, and close relative, or if none, the name and address of any known friend of the respondent whom petitioner believes may know other names and addresses, If petitioner is unable to provide such names and addresses petitioner shall state that due diligence was made to learn this information.

CASE LAW: Courts require that a petition conform to

each of these specifications, but will look to the petition as a whole to determine due diligence, instead of simply looking for a statement. In re Denise C., 348 Ill.App.3d 889 (1st Dist. 2004)

(3) Relationship of Petitioner: Petitioner’s relationship to respondent and a statement as to

whether petitioner has a legal or financial interest in the matter or is involved in litigation with the respondent.

(4) Witnesses: The names and phone numbers of the witnesses by which

the facts asserted may be proved. 2. Emergency Admission by Certification (§5/3-600) A person 18 years or older who is subject to involuntary admission and in

need of immediate hospitalization may be admitted to a mental health facility pursuant to this Article. Any person 18 years of age or older may present a petition to the facility director of a mental health facility in the county where the respondent resides or is present. The facility director may prepare the petition.

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a. Certificate of Physician, Qualified Examiner, or Clinical Psychologist:

The petition shall be accompanied by a certificate executed by a

physician, qualified examiner, or clinical psychologist, who personally examined the respondent 72 hours prior to admission. It shall also contain clinical observations and facts relied upon in reaching a diagnosis and indicate whether respondent was advised of his rights.

CASE LAW: A person alleged to be subject to involuntary

admission cannot be detained, taken into custody, or admitted unless both the petition and certificate have been executed. An order for involuntary admission is void where the certificate was executed 1 hour and 20 minutes after the petition. In re Linda W., 349 Ill.App.3d (5th Dist. 2005)

b. Detention Pending Certificate: In the event that there is no qualified examiner, physician or

clinical psychologist immediately available, the respondent may be detained for examination in a mental health facility upon petition alone if the petition further specifies: (1) Petitioner believes as a result of personal observation that

respondent is subject to involuntary commitment; (2) A diligent effort was made to obtain a certificate; (3) No qualified examiner, physician or clinical psychologist

could be found who has examined or could examine respondent; and

(4) A diligent effort was made to convince respondent to

appear voluntarily for examination, unless petitioner believes such an effort would impose a risk of harm to the respondent or others.

Procedural Safeguards: No person can be detained for

examination on the basis of petition alone for more than 24 hours unless within that period a certificate is furnished by the mental health facility. If no certificate is furnished, respondent shall be released.

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c. Examination by psychiatrist: No later than 24 hours after admission, excluding Saturdays,

Sundays and holidays, the respondent must be examined by a psychiatrist, but he or she shall not be the person who executed the first certificate. If no certificate is furnished, the respondent shall be released.

d. Notice of Rights:

Within 12 hours of admission, the recipient must be provided with a copy of the petition and a statement of rights. The server must sign the petition in the area indicated. Within 24 hours, excluding Saturdays, Sundays, and holidays, after admission, a copy of the petition and statement of rights shall be filed and given to the respondent’s attorney or guardian. CASE LAW: The statute governing the time for filing petition for civil commitment creates a bright-line test with which the facility director must strictly comply. Petition is invalid where filed more than 24 hours after a patient was admitted to hospital. In re Demir, 322 Ill.App.3d 989 (4th Dist. 2001)

CASE LAW: HOWEVER, the 24 hour period does not start until the respondent enters the psychiatric unit. Admission to the emergency room is not relevant in calculating the 24 hours. In re Moore, 301 Ill.App.3d 759 (4th Dist. 1998)

CASE LAW: Dismissal without prejudice of untimely petition does not re-start the 24-hour period for the state to file and serve petition where the patient was never discharged after dismissal of the first petition. In re Nancy A., 342 Ill.App.3d 355 (5th Dist. 2003)

CASE LAW: Despite the compelling need for strict compliance with involuntary procedures, failure to comply with the notice provisions is harmless error where respondent did not object at the hearing and there was no prejudice by the lack of notice. In re Jill, 336 Ill.App. 3d 956 (4th Dist. 2003)

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e. Notice of Hearing:

When filing the petition and the first certificate the Clerk of the Court will give two notices which must be served on the recipient and any two individuals that the recipient desires. The recipient must be asked which two individuals he/she would like served. Proof of service must be filed with the court. The Court shall set a hearing within 5 days, excluding Saturday, Sunday, and holidays, after receipt of the petition. Upon completion of the second certificate, the facility director shall promptly file it with the clerk.

3. Involuntary Admission Upon Court Order (§5/3-700) A person 18 years or older who is subject to involuntary admission may be

admitted to a mental health facility under court order pursuant to this Article. Any person 18 years or older may execute a petition asserting another person is subject to involuntary admission. The Court may inquire of the petitioner whether there are reasonable grounds that the facts alleged are true. This inquiry can proceed without notice to the respondent only if petitioner alleges facts showing an emergency exists.

a. Certificate of Physician, Qualified Examiner, or Clinical

Psychologist: The petition may be accompanied by a certificate executed by a

physician, qualified examiner, or clinical psychologist. If no certificates are filed, then respondent must be examined twice, once by a psychiatrist and once by either a physician, qualified examiner, clinical psychologist or psychiatrist. If certificates are executed, they shall be promptly filed with the court.

b. Detention Pending Certificate: The respondent shall be permitted to remain in his or her place of

residence pending any examination. If the examination is ordered, respondent and his attorney or guardian are given 36 hours notice (personal service), as to the order and statement of rights.

The Court, however, can order the respondent to be admitted to a

mental health facility pending examination, if the Court finds it necessary in order to complete the examination. If this occurs, the notices described can be delivered at the same time as the court order.

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Procedural Safeguards: No person can be detained for examination under this Section for more than 24 hours. The

person shall be released upon completion of examination unless a certificate is executed.

Any respondent transported to mental health facility for an

examination has a right upon arrival to notify at least two individuals of his detention and upon admission to complete two phone calls.

Within 24 hours, excluding Saturdays, Sundays, and holidays,

after admission, the facility will send the petition and notice to at least two people designated by respondent.

c. Notice of Rights: Within 12 hours of admission the recipient must be provided with

a copy of the petition and a statement of rights. The server must sign the petition in the area indicated. Within 24 hours, excluding Saturdays, Sundays, and holidays, after admission, a copy of the petition and statement of rights shall be given to the respondent’s attorney or guardian.

d. Notice of Hearing: The Court shall set a hearing to be held within 5 days, excluding

Saturdays, Sundays, and holidays, after its receipt of the second certificate or after the respondent is admitted to a mental health facility, whichever is earlier.

4. Order for Treatment or Discharge (Both Article VI and VII). If the respondent is not found subject to

involuntary admission, the court shall dismiss the petition and order the respondent discharged. If respondent is subject to involuntary admission, then the court will enter an order so specifying. If the recipient has been found by the court to be subject to involuntary admission, the commitment is for a period not to exceed one hundred and eighty (180) days.

D. Transportation: The Court can order a peace officer to take a person into custody and transport

him to a mental health facility under either Article VI or Article VII and if as a result of personal observation and testimony in open court, any court has reasonable grounds to believe a person before it is subject to involuntary admission and is in need of immediate hospitalization to protect such person or others. §5/3-607

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A peace officer may take a person into custody and transport him to a mental health facility, when as a result of personal observation the officer believes the person is subject to involuntary admission. §5/3-606 CASE LAW: The officer is then required to file the petition under section 3-601. The Courts have reversed involuntary admissions where the officer failed to file the petition. In re Demir, 322 Ill. App.3d 989 (4th Dist. 2001)

E. Miscellaneous: If the recipient signs a voluntary admission after the petition has been filed a copy

of that voluntary admission must be sent to the clerk’s office. If the recipient is discharged prior to the court hearing a copy of the discharge must be sent to the clerk’s office.

II. DISCHARGE A. Voluntary:

1. Inquiry:

If a voluntary recipient is still in the mental health facility, on or before the 30th day the recipient must be asked whether he/she wishes to remain as a voluntary. If the recipient says yes, it must be noted in his/her record and he/she then can remain up to sixty (60) days. The same procedure must again be followed before the end of the 60 days. If the voluntary recipient remains mute or asks to be discharged, a petition and two certificates must be filed in the clerks office on or before the 30th day. The same procedure must be followed regarding service of notice.

2. Request for Discharge: A voluntary recipient may sign a five (5) day request for discharge. The

recipient must then be discharged within 5 days, excluding weekends and holidays, unless the procedures for involuntary admission are initiated. If the facility elects to initiate involuntary admission procedures to retain the recipient a petition and two (2) certificates must be filed on or before the 5th day, not including Saturdays, Sundays, and Holidays.

B. Informal: An informal recipient has the right to be discharged from the mental health

facility at any time during normal daily day shift hours of operation, which shall include but need not be limited to 9 a.m. to 5 p.m.. This right commences on the first day-shift hours of operation after admission.

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C. Involuntary: If a recipient has been found by a court to be subject to involuntary

hospitalization, this commitment is for a period not to exceed 180 days. If the recipient continues to be of need of further hospitalization, on or before the 180 days a petition and two certificates must be filed in the clerk’s office. However, the involuntary recipient also has the right to sign for a voluntary admission at the end of the 180 days and continue treatment.

1. Petition for Discharge: Any person hospitalized under these procedures, or any person on his

behalf, may file a petition for discharge at any time. 2. The Court will then set a hearing within 5 days, excluding Saturdays,

Sundays, and holidays. Notice requirements similar to involuntary admission process apply.

3. If the Court determines that the recipient continues to be subject to

involuntary commitment, no new petition can be filed without leave of the Court.

CASE LAW: At the discharge hearing a patient makes a prima facie case

for discharge where she testified that she was not harmful to herself and could take care of herself. State is required to present clear and convincing evidence to refute patient’s case or patient must be discharged. In re Bates, 315 Ill.App.3d 736 (3rd Dist. 2000)

ADMISSION AND DISCHARGE OF MINORS

I. OUTPATIENT SERVICES

A minor 12 or older can request and receive 5 counseling sessions (Each not to exceed 45 minutes) on an outpatient basis without the consent of any adult. The mental health facility cannot inform the minor’s parent, guardian or person in loco parentis unless the facility director believes such disclosure is necessary. If the mental health facility director intends to disclose information about the counseling services, the director must inform the minor. The minor’s parent, guardian or person in loco parentis will not be financially responsible for the costs of the counseling services. §5/3-501

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II. ADMISSION A. Involuntary:

1. Upon Application of Parent or Guardian:

Any minor may be admitted to a mental health facility for inpatient treatment upon application to the facility if it is found that the minor “has a mental illness or emotional disturbance of such severity that hospitalization is necessary and that the minor is likely to benefit from inpatient treatment.” §5/3-503

2. Emergency Admission:

A minor eligible for admission under §5/3-503 and who is in such a condition that immediate hospitalization is necessary may be admitted upon the application of a parent or guardian, or person in loco parentis, or of an interested person 18 years of age or older when, after diligent effort, the minor’s parent, guardian or person in loco parentis cannot be located or refused to consent to the admission. §5/3-504

3. ANCRA:

Section 5 of the Abused and Neglected Child Reporting Act, 325 ILCS 5/1 et seq, (“ANCRA”) allows a physician treating a child to take temporary protective custody without the consent of the person responsible for the child's welfare if:

a. The physician has reason to believe that continuing the child in his

or her place of residence or in the care and custody of the person responsible for the child's welfare presents an imminent danger to that child's life or health; and

b. There is not time to apply for a court order under the Juvenile

Court Act for temporary custody of the child. Under Section 5, a physician who takes protective custody must make

every effort to notify the child's caretaker, DCFS, and the hospital administrator.

Once the hospital takes PC, the administrator becomes the temporary

custodian with authority to consent to emergency medical treatment and provide care, shelter, and nourishment to the minor. Whenever acting in good faith, a hospital that takes protective custody is cloaked in full immunity from civil and criminal liability.

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4. Notice of Rights: The application for admission under §5/3-503 or §5/3-504 shall contain in

large, bold-face type a statement in simple nontechnical terms of the minor’s objection and hearing rights. A minor 12 years of age or older shall be given a copy of the application and his right to object shall be explained to him in an understandable manner. A copy of the application shall also be given to the person who executed it, to the minor’s parent, guardian or person in loco parentis, and attorney, if any, and to 2 other persons whom the minor may designate. §5/3-505

5. Review of Records/Authorization for Treatment: Thirty days after the admission of a minor under §5/3-503 or §5/3-504, the

mental health facility director shall review the minor’s record and assess the need for continued hospitalization. The director shall consult with the person who executed the application for admission if continued hospitalization is indicated and request authorization for continued treatment of the minor. The request and authorization must be noted in the record. Every 60 days thereafter a review will be conducted and a new authorization will be secured for the duration of the hospitalization. Failure or refusal to authorize continued treatment constitutes a request for the minor’s discharge. §5/3-506

B. Voluntary: 1. Admission by the Minor: A minor who is 16 or older may request his or her admission without

parental consent. A minor so admitted will be treated as an adult under Article IV and be subject to all provisions of that article. The law requires, however, that the parent or guardian be informed of the admission. §5/3-502

2. Notice of Rights: Upon commencement of services, or as soon thereafter as the condition of

the recipient permits (At least within 12 hours), every recipient, age 12 or older and the parent/guardian of a minor or recipient under guardianship, shall be informed orally or in writing of their rights. §5/2-200(a)

III. OBJECTION TO ADMISSION A. Objection by the Minor or Interested Person 18 or Over: An interested person 18 or over or a minor who is 12 or older and admitted on the

application of another person may object to the admission. The objection must be

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in writing and sent to the facility director. Once the objection is received, the minor should be discharged within 15 days, excluding Saturdays, Sundays and holidays unless:

1. The minor withdraws the objection in writing, or 2. The mental health facility files a petition and 2 certificates with the court

for the review of the admission. The certificates must be executed pursuant to §5/3-703 (Article VII). This petition must be filed within 15 days. §5/3-507

B. Objection by Parent or Guardian: §5/3-507 If the parent or guardian or person in loco parentis requests discharge,

the minor must be discharged within 5 days* to the custody of that person unless:

1. The minor is 12 or older and objects to the discharge; or 2. The mental health facility files a petition and 2 certificates with the court

for the review of the discharge. This petition must be filed within 5 days*. §5/3-508

*Note: Section 5/3-508 does not exclude Saturdays, Sundays and

holidays from the calculation of the 5-day period. Because other portions of the statute specifically state that the time limit for filing a petition excludes such days, we believe the omission is intentional and that the petition must be filed within 5 calendar days.

C. Petition For Review: Once the mental health facility files a petition, the court shall appoint counsel for

the minor and set a hearing to be held within 5 days, excluding Saturdays, Sundays and holidays. §5/3-509

IV. OTHER DISCHARGE ISSUES A. DCFS’s Refusal to Accept Lockout Cases: Unwillingness of the minor’s parent, guardian, or person in loco parentis to

provide for his care or residence shall not be grounds for the court’s refusing to grant discharge.

Mental health facilities are in an extremely difficult position when the minor’s

condition has stabilized and the minor is ready for discharge but the parent or guardian refuses to pick the child up from the hospital. Ideally DCFS would immediately become involved in these “lockout” situations by filing petitions

55

with the juvenile court, assuming temporary custody of the minor, and placing the child in suitable post-discharge placements. Oftentimes, however, DCFS refuses to become involved, claiming the child is not its responsibility.

ADMINISTRATION OF PSYCHOTROPIC MEDICATION

I. RIGHT OF REFUSAL

If treatment includes the administration of psychotropic medication the physician must advise the recipient, in writing, of the side effects of the medication. An adult recipient, or if the recipient is under guardianship, must advise the recipient’s guardian, must be given the opportunity to refuse such services. §5/2-107

A. Emergency: If refused, medication must not be given unless in an emergency to prevent the

recipient from causing serious and imminent harm to the recipient or others. In an emergency, medication administered for up to 24 hours and the circumstances leading to the emergency administration must be set forth in writing in the recipient’s record. The medications may not be continued beyond 24 hours unless the need for such medication is redetermined at least every 24 hours based upon a personal examination by a physician or a nurse. Such medications may not be administered for longer than 3 consecutive days, excluding Saturdays, Sundays and holidays, unless a mental health facility petitions the court for an order.

Under no circumstances may “long acting psychotropic medications” be admitted under this section. (Any psychotropic medication where a single dose has an intended clinical effect of at least 48 hours.)

I. COURT ORDERED ADMINISTRATION

If a recipient refuses psychotropic medication any person 18 years of age or older may petition the court for the administration of psychotropic medications against a recipient’s will. In order to obtain such an order the following steps must be followed. § 5/2-107 & §5/2-107.1 CASE LAW: The procedures described herein are not mere technicalities and will result in reversal of orders of involuntary administration of medication. In re O.C., 338 Ill.App3d 292 (4th Dist. 2003)(holding that failure to file petition and provide notice, as well as failure to prove all seven factors by clear and convincing evidence required reversal of court’s order for medication)

A. Petition for Authorization of Involuntary Treatment: The petitioner must deliver a copy of the Petition for Administration of

Authorized Involuntary Treatment to the circuit court. The petition must state that petitioner made a good faith effort to attempt to determine whether the recipient

56

has an executed a power of attorney for health care or a declaration for mental health treatment and to obtain copies of them. If the instruments are available, they must be attached to the petition. The matter will be set for a hearing.

B. Notice: Petitioner must also provide a copy of the petition, plus a notice of the date and

time of the hearing to the respondent, the respondent’s attorney, any known agent or attorney-in-fact, and the guardian (if applicable), no later than 3 days prior to the hearing date. Service by facsimile is proper if the party sending the petition receives acknowledgement of service within 24 hours, otherwise service must be made by personal service.

C. Hearing: The court holds a hearing within 7 days of the filing of the petition, unless the

recipient requests a continuance. If a jury trial is requested, the court may grant an additional 21 days. The procedures contained in Article VIII govern the hearing.

D. Burden of Proof: Authorized involuntary treatment shall not be administered to the recipient unless

it has been determined by clear and convincing evidence that all of the following factors are present.

1. Recipient has a serious mental illness or developmental disability. 2. Recipient, because of mental illness or developmental disability exhibits

one of the following: deterioration of ability to function, suffering, or threatening behavior.

3. The illness or disability has existed for a period marked by the continuing

presence or repeated episodic occurrence of the symptoms described in the previous paragraph.

4. Recipient lacks the capacity to make a reasoned decision about the

treatment. CASELAW: In order to prove this factor, the State must also prove that it

complied with 405 ILCS 5/2-102(a-5), which requires the treating physician to advise the recipient, in writing, of the side effects, risks, and benefits of the treatment, as well as proposed alternatives to the treatment. In re John R., 339 Ill.App.3d 778 (5th Dist. 2003)

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5. Benefits of treatment outweigh the harm. 6. Other less restrictive services have been explored and found to be

inappropriate. 7. If the petition requests authorization for testing and other procedures, a

finding that such testing and procedures are essential for the safe and effective administration of the treatment.

CASELAW: All seven factors must be proven. State’s failure to prove above factors 3, 4, 5 led to reversal of the trial court’s order for involuntary treatment. In re R.K., 338 Ill.App.3d 514 (1st Dist. 2003)

E. Order: In no event shall an order be effective for longer than 90 days. A second 90-day period of involuntary treatment may be authorized pursuant to

a hearing that complies with the above procedures in subsection A. and B. of this memorandum. §5/2-107.1(a-5)

Thereafter, additional 180-day periods of involuntary treatment may be

authorized without limit pursuant to these standards and procedures. If a new petition is filed within 15 days of the expiration of the prior order, and

recipient asks for or agrees to a continuance, treatment may continue pending completion of the hearing.

F. Miscellaneous:

Nothing in this section prevents the administration of authorized involuntary treatment to recipients in an emergency under 405 ILCS 5/2-107. Notwithstanding these procedures, authorized involuntary treatment may be administered pursuant to a power of attorney for health care or a declaration for mental health treatment.

III. COURT ORDERED ADMINISTRATION OF TREATMENT FOR MINORS A. Unusual, Hazardous, or Experimental Services or Psychosurgery (405 ILCS 5/2-

110) – This section was previously titled “Electro-convulsion therapy (“ECT”), Psychosurgery Consent” and as such was held unconstitutional by the 4th District in In re Branning, 285 Ill.App.3d 405 (4th Dist. 1996).

1. In re Branning – the Court found that the statute allowing the guardian to

authorize ECT on behalf of a ward with the requirement of only court

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approval did not provide the necessary procedural due process given the significant liberty interest in refusing unwanted ECT.

2. The legislature subsequently amended the section by changing its title and

deleting any reference to ECT, but leaving the same limited procedural protections of requiring only court approval.

3. NOTE: Although there have been no additional cases concerning the changes

in this section, it is arguably still unconstitutional, given the Brannon court’s failure to distinguish in its analysis ECT from the other stated experimental or unusual treatments authorized by the statute.

B. ECT Treatments – 405 ILCS 5/2-110.5 essentially codified the In re AMP

decision. In re: AMP, 303 Ill.App.3d 907 (4th Dist. 1999) addresses the procedural requirements

of petitions for ECT treatment of minors in light of the applicable statutory provision being declared unconstitutional.

The 4th District held before ordering the authorization of ETC to a minor, the

Court must first determine whether the minor or person subject to guardianship is competent to exercise a right to refuse treatment, pursuant to In re E.G, 133 Ill.App.2d 98 (1990). As stated in In re E.G., “mature minors may possess and exercise rights regarding medical care that are rooted in this State’s common law.”

If the minor is mature and refuses to consent or if the minor is not a “mature

minor, the court applied the framework of the statutory section dealing with ECT and adults (2-107.1).

The statute, in addition to requiring adherence to the procedures in section 2-107.1,

mandates that prior to entering an order approving ECT, two licensed psychiatrists, one of which must be the minor’s treating psychiatrist, must examine the patient and concur with ECT treatment.

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SUMMARY – MENTAL HEALTH DEADLINES

TIME REQUIREMENTS INVOLUNTARY 12 Hours Within 12 hours of admission on an involuntary basis, a

copy of the petition must be given to the recipient. 24 Hours Time from involuntary admission to file petition and

certificate. 180 Days Maximum period for an involuntary admission. 30 Days Time by which facility director must review file for need

for continued hospitalization. VOLUNTARY 30 Days Time when a voluntary admittee must be asked if he wishes

to remain. 60 Days Time to ask again if voluntary admittee wishes to remain. 5 Days (excluding Time within which a voluntary patient requesting discharge weekends and holidays) must, in fact, be discharged if involuntary admission is not

sought. MINORS 12 Hours For minors, time after admission within which minor must

be informed of all rights. 15 Days Time within which minor admitted by adult request must

be discharged – when discharge requested by minor or another adult interested person, if no petition is filed.

5 Days (NOT excluding Time for discharge where parent/guardian requests weekends and holidays) discharge of minor where no petition is filed. 5 Business Days Time within which hearing must be held for minor.

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TIME REQUIREMENTS MEDICATION 24 Hours Emergency medication may be administered for up to 24

hours. Must re re-determined every 24 hours for emergency.

3 Days (excluding Emergency medication may only be administered for up to weekends and holidays) 3 consecutive days unless petition for court order is filed. 3 Days Recipient, attorney, and guardian must receive notice of

petition for court ordered medication at least 3 days prior to hearing.

7 Days Hearing to determine court ordered medication must be

held within 7 days of filing petition unless recipient requests a continuance or a jury trial.

90 Days Maximum period for a court order for medication unless re-

petitioned. If re-petitioned a 2nd 90-day period of involuntary treatment

may be authorized pursuant to the same procedures. 180 Days A third or subsequent petition can authorize up to 180 days

for involuntary treatment pursuant to the same procedures.

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