WHT Law

Brittany’s Law

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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 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.1 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”?

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 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.

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.

 


1.Illinois’ Vocational Rehabilitation regulations (89 Ill. Admin. 553.20) specify that an individual is eligible for vocational services if he/she is: (a) An individual who has a disability and desires to achieve an employment outcome, or (b) has a substantial impediment to employement, is determined by DHS to require vocational services, or is presumed to be able to benefit from vocational rehabilitation services.