Proposed Amendments to Part 226 (Special Education)

Both Sections 226.730 and 226.731, which address class size, including a definition of "general education classroom", are being proposed for repeal.  These requirements exceed those that are found in federal Individuals with Disabilities Act (IDEA) and its implementing regulations and have resulted in several unintended consequences.  The elimination of state requirements specific to class size will best ensure that each student with disabilities is placed in the least restrictive environment (LRE), as directed by his or her Individualized Education Program (IEP), and has access to the broad array of coursework available to his or her nondisabled peers, particularly in the middle grades and high school. 

Staff believe that school districts, through the IEP process, should determine locally the accommodations and modifications necessary to place students with disabilities to ensure LRE.  The LRE mandate requires that the general education classroom, with whatever modifications and supports are necessary, be the first placement option considered for every student with a disability.  It is the responsibility of the IEP team to make a determination of placement that provides the identified academic and other services that are necessary for the student to be successful.  Additionally, a student's placement in a self-contained special education classroom should not be restricted based on the child's disability or the percentage of time that the student spends outside of the classroom, as determined by the State.  Instead, school districts, rather than the State Board, should determine the personnel needed to effectively respond to the needs expressed in each student's IEP.

Currently, Section 226.730 sets forth the maximum class sizes for self-contained special education classrooms based on the amount of time each student with a disability spends in a general education classroom.  "General education classroom" is defined as one in which at least 70 percent of the students do not have IEPs (70/30 ratio), utilizes a general curriculum, is taught by an instructor holding an endorsement for "general education" and is not designated as a general remedial classroom.  Staff believe that these class size limitations can diminish the ability of the school districts to make decisions based on the needs of each student with a disability.  Other concerns specific to the current rules are summarized below.

Policy Implications:  Two separate policy issues arise out of this rulemaking.  First, the proposed elimination of class size restrictions on self-contained special education classrooms marks the first time since the enactment of IDEA's predecessor law, Education for All Handicapped Children’s Act of 1975, that the State Board of Education has not established maximum class sizes based upon a child's disability or his or her service level.  Authorizing school districts to determine class sizes locally provides them with the freedom, but also the responsibility, to ensure that the academic environment and services provided are appropriate, align with the student's IEP and will enable him or her to meet the goals established for his or her learning.

Second, the agency promulgated the 70/30 ratio in response to the 1999 consent decree issued in the Corey H. matter and the court-appointed monitor's implementation plan developed in response to that decree.  These decisions required the State Board to establish districtwide targets for City of Chicago School District 299 (CPS) relative to the district's achievement of LRE.  The resulting rule, while not specific to CPS, extended the agency's policy regarding these targets to all districts in the state by setting a specific student ratio of 70/30 to define a "general education classroom".  It is important to note that neither the Corey H. consent decree nor the monitor's implementation plan dictated a specific ratio for the agency to use in establishing CPS' LRE target; rather, the court monitor recommended that the rules include a definition of "general education classroom".

The Corey H. litigation has prevented the State Board from deviating from the current definition while the State Board remained subject to court's consent decree.  The court dismissed the agency from the lawsuit in October 2012.  As such, agency staff believe that restrictions on placement decisions set forth in rule can now be eliminated, and school districts, through the IEP process, should determine locally the accommodations and modifications necessary to place students with disabilities in the least restrictive environment.  (NOTE:  An exception to the 70/30 rule was later granted to CPS, reducing the ratio of general education students to students with disabilities to 60/40.  The proposed elimination of the 70/30 ratio, if promulgated, will not affect CPS, which will remain under its 60/40 ratio until it is released from the Corey H. matter.)

Rules specific to class sizes relied on disability category until the 2007-08 school year (see Section 226.731), when they were replaced by the percentage of time a student spent in a general education setting (see Section 226.730).  The agency proposed modifications to the definition of "general classroom" in 2006 and received fierce opposition from both teachers and parents who complained about inadequately prepared staff and reduction in services.  As a result, the 70/30 ratio remained unchanged.  Today, the pool of qualified general education educators continues to broaden due to certification and continuing professional development requirements specific to students with disabilities.  Also, Section 14-2 of the School Code, enacted in 2011, emphasizes that any school district's decision to place a student with disabilities in a general education classroom cannot "interfere with the provision" of FAPE.  Both of these circumstances may help to mitigate some of the negative feedback that the agency received in 2006.

Finally, staff acknowledge that the agency's reexamination of class size rules also has been prompted by the difficulty school districts have reported complying with the standard, as the state's – and by extension, many school districts' – fiscal condition has worsened in the several years.  It is important to note, however, that the proposed rule change, if promulgated, will not affect a school district's responsibility to continue to comply with federal requirements regarding local maintenance of effort for special education.

The proposed amendments were shared with the Illinois State Advisory Council (ISAC) on the Education of Children with Disabilities, as required under the law, on February 6, 2013.  Although ISAC members expressed their opposition to the proposed rule changes, they conducted extensive discussions, particularly about the 70/30 ratio.  The council members understand that class size restrictions, especially the 70/30 ratio, may hamper school districts' ability to provide inclusive opportunities for students with disabilities.  Their opposition to the removal of the limitations, however, lies with ensuring access for students with disabilities to their nondisabled peers within the general education classroom and the provision of accommodations and supports for the students to be successful.

The proposed amendments also were reviewed by the Illinois Principals Association, Illinois Association of School Boards, Illinois Association of School Administrators, and Illinois Association of School Business Officials; representatives from each of these organizations indicated their support for the changes.  Staff also discussed the changes with the Illinois Association of Administrators of Special Education, Illinois Education Association and Illinois Federation of Teachers, which are opposed to the proposed changes.

Initial Review by State Board of Education:  February 2013

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