Special-Ed. Services in Ill. Fall Short, Judge Rules

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Illinois has failed to provide educational and developmental services to all the state's eligible infants and toddlers with disabilities, a federal judge ruled last week.

The ruling is the first confirming the rights of disabled infants and toddlers under a 1986 amendment to the 1975 Individuals With Disabilities Education Act.

The so-called Part H of the federal law requires that states receiving funds under the law set up early-intervention programs for young children with developmental disabilities and serve all eligible children by the fifth year the program is in place.

Roughly 26,000 infants and toddlers--three-quarters of the eligible population in Illinois--are not receiving services such as physical therapy or speech therapy that are needed to prevent developmental delays, the plaintiffs contended in the class action filed in 1994 on behalf of four families.

Under the law, children from birth to age 3 must be referred to an early-intervention provider within 48 hours after a disability is identified, and a personal evaluation must be conducted within 45 days. But instead, such children often are put on long waiting lists or receive only some of the services they need, the plaintiffs in Marie O. v. Edgar said.

"The regularity with which disabled children are placed on waiting lists for services and evaluations--some waiting for up to one year--should not be tolerated," U.S. District Judge Charles Kocoras wrote in his summary judgment. The intent of Part H of the IDEA "is to create an entitlement which will be fully realized in the next century," he wrote. "After eight years without meaningful compliance, court intervention has thus become justified."

What Is 'All'?

The suit names Illinois Gov. Jim Edgar and state schools chief Joseph H. Spagnolo as defendants. (See Education Week, March 23, 1994.)

While the state has acknowledged that there are waiting lists, it has disputed the extent of shortfalls in service.

Karen Berman, a lawyer for the plaintiffs, said the decision affirms that the state must serve all eligible children, not just as many as it can given the available funds.

The Illinois board of education issued a statement last week expressing its disappointment in the decision and stating that it believed it was in compliance with the law.

The state has not decided whether to appeal and is awaiting the judge's final order, said Tom Iapolo, an assistant attorney general who represented the state in the case.

To some extent, the decision raises as many questions as it answers. "What it means to serve 'all children,' what it is to be implemented, is what we still need to design," Ms. Berman said.

The state maintained that the plaintiffs' interpretation of what it means to serve all children was unrealistic. The judge recognized this argument in his opinion, noting that "the notion of serving 'all' eligible children ... is not--and cannot be--a rigid legal standard activated on a state's first day of full participation in Part H. Given the breadth of requirements set forth in Part H, it is doubtful if any state could ever meet such standards as the plaintiffs suggest."

The judge has not issued a final order directing what steps the state must take to meet the goal of serving all children. He is scheduled to discuss possible remedies with the two parties at a Feb. 27 hearing.

"The general message is, 'Yes, you are required to serve all children, but no one can be that rigid about that, and what I am going to require is meaningful compliance, which you aren't even near,"' said Ms. Berman. "To us that seems reasonable. We wouldn't sue if 98 percent of the kids were being served."

Vol. 15, Issue 21, Page 3

Published in Print: February 14, 1996, as Special-Ed. Services in Ill. Fall Short, Judge Rules
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