Governor Signs Law Concerning Home and Hospital Instruction to Students

July 20, 2011

By Trisha Olson

On July 14, 2011, Governor Pat Quinn signed into law Public Act 97-0123 amending Section 5/14-13.01 of the Illinois School Code concerning home and hospital instruction for students.  Prior to this amending Act, a student received home or hospital instruction when a physician certified that (1) the student had a medical condition causing that student to be unable to attend school for two or more consecutive weeks due to his or her condition, or (2) the student had a medical condition causing “ongoing intermittent” absences – a term that was not previously defined.  If the student had an IEP, in response to ongoing intermittent absences, the student’s IEP team was to consider the need for home or hospital services based upon the student’s condition, the impact on the student’s ability to participate in education, and the anticipated duration or nature of the student’s absence from school.

Effective immediately, the amended Act completely alters the standards for determining home or hospital instruction. Now, a child qualifies for home or hospital instruction when a doctor anticipates that a student will be unable to attend school for two or more consecutive weeks due to a medical condition.

A child also qualifies if a doctor anticipates that a student’s medical condition will cause ongoing intermittent absences. The Act defines the term “ongoing intermittent” absence to mean the student’s medical condition is of such a nature or severity that the student is anticipated to be absent for periods of at least “two days at a time multiple times during the school year totaling at least 10 days or more of absences.”  There is no minimum number of days a student must be absent before he or she qualifies for home or hospital instruction.

Further, home or hospital instruction may begin as soon as the school district receives a doctor’s statement, but not later than five days after receipt of a doctor’s statement.  In practice, the school district should commence home or hospital instruction immediately.

Finally, the amended Act specifies that special education and related services required by a student’s IEP or Section 504 plan must be implemented as part of the student’s home or hospital instruction.  However, IEP and Section 504 teams may modify a student’s receipt of special education and related services during home or hospital instruction.

Given the broad changes required under the amended Act, we anticipate forthcoming amendments to the Illinois Administrative Code and guidance from the Illinois State Board of Education. In the meantime, Illinois school districts will need to review and revise any applicable policies, procedures and internal practices on the delivery of home and hospital instruction, including the qualifications and availability of its home and hospital instructors.

Please do not hesitate to contact Scariano, Himes and Petrarca, Chtd., with any questions about the changes to home and hospital instruction, or other changes made during this legislative season.

COURT UPHOLDS RIGHT OF SCHOOL DISTRICT TO CHARGE FEE FOR DRIVERS EDUCATION COURSE

October 12, 2010

By Adam Dauksas

On September 30, 2010, in the case of Sherman v. Township High School District 214, the Illinois Appellate Court delivered an opinion clarifying the right of school districts to charge fees to offset the cost of education, holding that a $350 driver’s education course fee did not violate the free education clause of the Illinois Constitution.

District 214 submitted a waiver application to ISBE requesting that the General Assembly waive the “reasonable fee, not to exceed $50” limit on driver’s education fees in the School Code.  District 214 claimed that the revenue to be generated by a $350 fee was necessary to help offset the $993 per-student cost of the driver’s education program. AfterdeterminingthatDistrict214’swaiverapplicationwasincompliancewithallapplicableSchoolCode requirements, ISBE submitted the application to the General Assembly.  In turn, the General Assembly granted District 214’s waiver request.   Sherman’s lawsuit claimed,  among other things,  that a $350 fee for the school’s driver’s education course violated the free education clause of the Illinois Constitution.

Regarding the free education claim, the Court concluded that Sherman did not demonstrate that the legislature ever intended for driver’s education to be absolutely free.  The Court stated, “[w]hen [the legislature] talked about tuition-free, they were speaking of book fees, book rentals and PE equipment,” not driver’s education.  Moreover, the Court rationalized that the School Code explicitly provides that a “school district may charge a reasonable fee” for driver’s education courses, thus further illustrating that such courses were never intended to be free.

The Court, however, limited the scope of its ruling by stating that although “driver’s education is not covered by the free education clause, this does not mean that other electives are also excluded.”  Accordingly, the determining factor as to the constitutionality of charging a school fee appears to be whether the fee involves educational services, which must be provided to students for free, or non-educational services and school supplies, for which reasonable charges may properly be assessed.

Factors to review when deciding whether a fee will withstand legal challenge include whether the course is:

  1. required or an elective;
  2. supervised by teaching personnel or non-certified staff; and/or,
  3. originally subject to a fee as declared in the School Code.  The more a fee appears to be associated with primary instruction, as opposed to a charge for a supplemental service, the more likely the fee will be deemed to have violated the state constitution’s free education clause.  Further, nothing in the Court’s opinion impacts a district’s obligation to grant fee waivers as required by the School Code and ISBE regulations.

If you have questions regarding your fee-based programs, or if you need assistance in developing and implementing a policy pertaining to student fees, please do not hesitate to contact Scariano, Himes and Petrarca.