226.130 Additional Procedures for Students Suspected of
or Having a Specific Learning Disability

In addition to the requirements set forth in Sections 226.110 and 226.120 of this Part, the district shall adhere to the procedures set forth at 34 CFR 300.308, 300.309, 300.310, and 300.311 when evaluating a student who is suspected of, or who has previously been identified as having, a specific learning disability as described in 34 CFR 300.8.

A school districts is not required to use a severe discrepancy between intellectual ability and achievement standard when determining whether a child has a specific learning disability, however if a school district elects to use the severe discrepancy determination they are required pursuant to 34 CFR 300.309(b) to ensure that underachievement in a student suspected of having SLD is not due to lack of appropriate instruction in reading or math, and as part of the evaluation data that demonstrate that prior to the referral process, the student was provided appropriate instruction in regular education settings, delivered by educators certified as competent by the school district to provide the intervention that the school district chooses to implement; and that the Illinois State Board of Education shall provide sufficient funding to assure that the educators providing the intervention are competent. A school district may also use a process that determines if the student responds to scientific, research-based intervention as part of the evaluation procedures described in 34 CFR 300.304. 

School districts must promptly request parental consent to evaluate a student suspected of having SLD who has not made documented and significant progress after an appropriate period of time, in no case to exceed 12 weeks in length, unless otherwise agreed in writing by the parents, when scientific research-based interventions are utilized. Students undergoing scientific research-based interventions who have engaged in behavior that violated a code of student conduct, may assert any of the protections provided under 34 CFR 300.530 and 300.532 and shall be considered pursuant to 34 CFR 300.534 to be students that school districts had knowledge that the student may have been a student with a disability while undergoing scientific research-based interventions. Parents of students undergoing scientific research-based interventions will be given written notice at the onset of the intervention that they have the right to request an evaluation during the intervention period. A school district may not use a student’s participation in scientific research-based intervention as the basis for denying a parent’s request for an evaluation.

Why Care About Special Education Teacher "Case Load"?

Special education teacher "Case Load" means the total number of students that a special education teacher serves either directly teaching in a class or indirectly through consultation with general education teachers.

Without a limit on special education teacher "Case Load", a special education teacher would not be able to truly individualize a student's education and make sure an IEP is up to date (and is being implemented) because that teacher may be serving 100 or more students (as now happens in other States).

In the written explanation the Illinois State Board of Education gave to JCAR for the June 19 JCAR meeting, ISBE says it is "changing the discussion of 'case load' to focus on 'work load,' " but this has many negative consequences for parents and others very concerned with limits on "case load".

ISBE says in response to the concern that "Parents must be part of the determination of teacher workload" : "We [State Board of Education] disagree. Work load is a mandatory subject of bargaining under the Illinois Educational Labor Relations Act. As such, work load will be negotiated between each district or cooperative and its teachers' exclusive bargaining representative if there is one."

So ISBE changes the "discussion" from "Case Load" to "Work Load", and then says parents can have NO input into Work Load!!

The title of Section 226.730 has been for years "Case Load / Class Size". Clearly "Case Load" was included in 226.730.

In Section 226.730 there was an introductory paragraph on the definition of a "regular education classroom" as being composed of students of whom "at least 70 percent are without identified special education eligibility"; and then three completely separate subsections: (a) on Special Education Class Size limits for "instructional services"; (b) Special Ed Class Size limits for "resource" which included as point (3) the case load limit of 60 for a speech language pathologist;

AND (c) "The caseload / class size for any service provider includes each student who receives direct or indirect service, such as consultation services, as delineated in an IEP."

Section (c) applies to "any service provider" which would certainly include a special education teacher. Section (c) specifically does NOT mention and is NOT restricted to speech language pathologists as some now claim.

Instead (c) is a limit on the "caseload" for any service provider (including special education teachers) just as the title of Section 226.730 was "Case Load / Class Size".

In his June 15, 2007, meeting on Part 226 with major education organizations, State Superintendent of Education Chris Koch stated that "Case Load has been identical with Class Size." Then Case Load limits on special education teachers most certainly were in 226.730, and they were identical to the Class Size limits. (Koch also said that one of his non-negotiable positions was that Case Load should not be limited at the State level, and some reports say ISBE has NOT been monitoring special education teacher "Case Load" for the last two years.)

The Illinois Education Association (IEA) states on its website about "caseload/workload for special education teachers": "no such limit ever existed in ISBE rules despite the belief of many."

In my opinion, the IEA is just wrong.

In the opinion of the Rules expert at the Joint Committee on Administrative Rules (JCAR), the IEA is incorrect.

For the school years 2007-2008 and 2008-2009, the new Section 226.731 (d) states, "The caseload / class size for any service provider includes each student who receives direct or indirect service, such as consultation services, as delineated in an IEP."

While the IEA worked to get a new "Work Load" section (226.735 "Work Load for Special Educators), that section does NOT take effect until the 2009-2010 school year ("Each plan shall take effect for the 2009-10 school year, or as soon as possible after that date, if a later date is necessary to comply with an agreement under the IELRA in effect at the beginning of that school year.")

So for the 2007-2008 and 2008-2009 school years special education teacher "Case Load" is limited is exactly the same way as it has been limited, and beginning in the 2009-2010 school year (or later if a multi-year local "education labor" contract requires it) special education teacher "Work Load" shall be negotiated IN EACH LOCAL SCHOOL DISTRICT with "affected employees" or "where there is an exclusive representative, in accordance with the Illinois Educational Labor Relations Act (IELRA)."

Bev Johns

226.730 Case Load / Class Size

a) When a student’s IEP calls for services in a regular education classroom, the student must be servedin a class that is composed of students of whom at least 70 percent are without IEPs, that utilizes the general curriculum, that is taught by an instructor certified for regular (general) education , and that is not designated as a general remedial classroom.

b) Class size means the total number of students an educator serves during any class period. As used in this subsection (b), “class” means any circumstance where at least one special education teacher is assigned and provides instruction and/or therapy exclusively to students with IEPs.

In the formation of special education classes, consideration shall be given to the age of the students, the nature and severity of their disabilities, the educational needs of the students, and the degree of intervention necessary.

Classes shall be formulated only under the following circumstances:

A) The students are grouped in relation to a common educational need; or

B) The program can be completely individualized and the teacher is qualified to plan and provide an appropriate educational service for each student in the class.

1) Each class for children ages three through five who have appropriately been determined to require education outside of regular classrooms pursuant to 34 CFR.300.114(a)(2)(ii) shall have at least one qualified teacher for each five students in attendance during that class period.

2) Classes that contain a student who has disabilities that an IEP team determines to be  serve/profound or multiple disabilities as defined in Section 226.75 of this Part and who has appropriately been determined to require education outside of regular classrooms pursuant to 34 CFR. 300.114(a)(2)(ii) shall have a maximum enrollment of five students.

3) Classes that contain a student that has disabilities that an IEP team determines to be severe visual, auditory, physical, speech or language impairment, autism, traumatic brain injury, or an emotional disturbance or behavioral disorder and who has appropriately been determined to require education outside of regular classrooms pursuant to 34 CFR 300.114(a)(2)(ii) shall have a maximum enrollment of eight students.

4) Classes that contain a student that who has a disability that an IEP team determines to be a specific learning disability who has appropriately been determined to require education outside of regular classrooms pursuant to 34 CFR 300.114(a)(2)(ii) shall have a maximum enrollment of ten students.

5) Classes that contain a student that an IEP team determines to be primary disabilities of moderate visual or auditory impairments and who has appropriately been determined to require education outside of regular classrooms pursuant to 34 CFR 300.114(a)(2)(ii) shall have a maximum enrollment of twelve students.

6) Classes that contain a student that an IEP team determines to be a mild/moderate cognitive disability and who has appropriately been determined to require education outside of regular classrooms pursuant to 34 CFR 300.114(a)(2)(ii) shall have a maximum enrollment of 12 students at the primary level and 15 students at the intermediate, middle, junior high, and secondary levels.

7) A school district may increase the enrollment in a class where a teacher is assigned and provides instruction and/or therapy exclusively to students with IEPs by a maximum of two students in response to unique circumstances which occur during the school year. Unique circumstances would encompass a school receiving additional students with disabilities that require services due to student transfers that took place after the school year had begun. Placements made by school districts that cause increased numbers of students with disabilities requiring these services will not be considered a unique circumstance. Shortages of highly qualified teachers will also not be considered to be a unique circumstance.  Such additions may be made only when the educational needs of all students who would be enrolled in the expanded program can be adequately and appropriately met. Alternatively, the district may increase the enrollment in a class where a teacher is assigned and provides instruction and/or therapy exclusively to students with IEPs by a maximum of five students when a full-time, noncertified assistant is provided.

c) A student shall be considered to require “resource services” when he or she receives special education instruction for less than 50 percent of the school day. Classes and services for such students shall be subject to the limitations of this subsection (c).

1) Enrollment in resource classes shall be limited to the number of students who can effectively and appropriately receive assistance, up to a maximum of 10 students at the primary grades and 20 students at the intermediate, middle, junior high, and secondary levels.

2) The teacher or service provider shall participate in determining the appropriate enrollment on an annual basis by the 20th day of the school year and this participation will be documented by the district. If a teacher disagrees with the district about the enrollment of a resource class this disagreement shall be recorded and retained in the records of the school. These records shall be available to parents of students with disabilities.

3) The number of students served by a speech-language pathologist shall be based on the speech-language needs of each student. At no time shall the caseload exceed 60 students.

4) A school district may not increase the enrollment in a resource class when a noncertified assistant is provided.

d) The Case Load for any special education teacher or other service provider shall include each student who receives direct or indirect service, such as consultation services, as delineated in an IEP. The maximum Case Load for any special education teacher or other service provider in instructional classes shall be identical to the class size limits in section 226.730(b). The maximum Case Load for a special education resource teachers shall be 15 students to a maximum of 20 students, based on the severity of the students’ disabilities and the nature of the service provided. The Illinois State Board of Education shall convene a task force which shall report by January 1, 2008, to recommend criteria for determining precise Case Load limits based on severity of the students’ disabilities and the nature of the service provided. The task force shall be composed of representatives of teacher organizations, special education teacher organizations, special education administrators, Illinois State Advisory Council on the Education of Children with Disabilities, organizations of parents of students with disabilities, and advocates for students with disabilities. The Illinois State Board of Education shall adopt criteria by April 1, 2008.