Ill. Admin. Code tit. 89, § 500.140 - Request for a Due Process Hearing
a) Who May File: The parents of a child
between birth and 36 months, a provider, a regional intake entity or the
Department (Complaining Party) may submit a Request for Due Process Hearing to
resolve a dispute regarding the evaluation, identification, placement, delivery
of services, or provision of appropriate services for their child (or if a
public agency, for a child for whom it has responsibility).
b) Where to Send: A Request for Due Process
Hearing form shall be used and submitted in writing to the Department at:
Chief
Bureau of Hearings
Illinois Department of Human Services
69 W. Washington Street, 4th Floor
Chicago, Illinois 60602
with copies to the regional intake entity serving the child and to:
Part C Coordinator
EI Program
Illinois Department of Human Services
823 East Monroe
Springfield, Illinois 62701
c) The Request for Due Process Hearing shall
be confidential and only used for purposes of resolution of the dispute and as
agreed to by the child's parents. The Request for Due Process Hearing shall
include:
1) the name of the child;
2) the address of the residence of the
child;
3) the name of the provider
serving the child;
4) in the case
of a homeless child, available contact information for the child and the name
of the provider serving the child;
5) a description of the nature of the problem
of the child relating to the proposed or refused initiation or change,
including facts relating to the problem;
6) a proposed resolution of the problem to
the extent known and available to the party at the time;
7) the name, address and telephone number of
the child's parent, of the person making the request, if it is someone other
than the child's parent, or, if no address, available contact
information;
8) the child's date of
birth;
9) the name and address of
the child's regional intake entity;
10) authorization for release of the child's
EI service records to the Department and the hearing officer;
11) the native language spoken by the
parents; and
12) evidence
supporting the remedy or proposed resolution (i.e., IFSP, family fee
calculation form, bill payment, etc.).
d) Determination of Sufficiency: A
Complaining Party may not have a Due Process Hearing until the Complaining
Party or the attorney representing the Complaining Party files a request for
hearing containing all the information listed in subsections (c)(1) through
(6). The Request for Due Process Hearing form shall be used, but the request
will not be denied if the information is otherwise provided in writing. The Due
Process Complaint required by this Section must be deemed sufficient unless the
party receiving the request for Due Process Complaint notifies the hearing
officer and the other party in writing within 15 days after receipt of the
request for Due Process Complaint, that the receiving party believes the
request for Due Process Complaint does not meet the requirements of this
Section. The hearing officer shall make a determination on the face of the
notice as to whether it is sufficient, within five calendar days after receipt
of the notification, and shall notify the Complaining Party, the Responding
Party and the Department in writing after that determination. Within 10 days,
the Responding Party shall send to the Complaining Party a Response that
specifically addresses the issues raised in the Request for Due Process
Hearing.
e) Child's Record to
Department: The regional intake entity shall disclose the complete record of
the child to the Department within five calendar days after receipt of the
Complaint requesting a proceeding in accordance with this Section.
f) Content and Assurance of Prior Notice: If
"prior written notice" pursuant to CFR 303.421 was not provided to the parent
regarding the subject matter of the parent's request for a Due Process Hearing,
the regional intake entity shall send the parent a response within ten calendar
days after receiving the Complaint. This response shall not preclude the
assertion that the parent's request for hearing is insufficient, where
appropriate. The response shall include:
1)
an explanation of why the regional intake entity or payee/provider proposed or
refused to take the action raised in the Complaint;
2) a description of other options the IFSP
team considered and the reason why those options were rejected;
3) a description of the evaluation procedure,
assessment, record or report the agency used as the basis for the proposed or
refused action; and
4) a
description of factors relevant to the regional intake entity or
payee's/provider's proposed or refused action.
g) Amendment of Request: A Complaining Party
may amend its Request for Due Process Hearing if the other Responding Parties
consent in writing to the amendment and are given the opportunity to resolve
the complaint through a resolution meeting as described in subsection (h), or
if the hearing officer grants permission no later than five business days
before the Due Process Hearing occurs. The timelines for the resolution
meeting, described in subsection (h), and for resolution of the hearing
request, begin anew with the filing of the amended request.
h) Resolution Period: Upon receipt of a
sufficient Request for Due Process Hearing, the Department must convene a
resolution meeting with the parent and the relevant member or members of the
IFSP Team who have specific knowledge of the facts identified in the Complaint
and with a Department representative if necessary. The parent and the
Department must determine the relevant members of the IFSP team to attend the
meeting. The purpose of this meeting is to provide the parents with an
opportunity to resolve the complaint.
1) The
resolution meeting must be held within 15 calendar days after receipt of the
request for hearing.
2) The
resolution meeting must include a representative who is authorized to make
decisions on behalf of each party.
3) The Department may not be represented by
an attorney at the resolution meeting unless the parent is accompanied by an
attorney.
4) If a resolution to the
dispute is reached, the parent and the Department shall execute a document that
is enforceable in any State court of competent jurisdiction or in a district
court of the United States.
5) The
Department or the parent may void this agreement within three business days
after the agreement's execution.
6)
Though recommended, the resolution meeting is not mandatory if the Complaining
Party and the Responding Party agree to waive it or agree to use
Mediation.
i) Mediation
Option: Upon receipt of a Request for Due Process Hearing, the parent and the
Department may agree to Mediation as set forth in Section
500.145.
j) Services During Proceeding:
During the pendency of the Due Process Hearing, unless the parent and the
Department agree otherwise, the child must continue to receive the appropriate
Part C EI services identified in the most recent IFSP to which the parents
consented. If the Request for Due Process Hearing involves application for
initial Part C services, the child must receive those services that are not in
dispute.
k) Free and Low-Cost
Services: The parent shall be informed of free or low cost legal and other
related services available in the area if the parent requests that information
or the parent, provider, regional intake entity or Department initiates a
resolution under these provisions. Regional intake entities shall maintain the
information and make it available upon request or if a proceeding is initiated
under this Section.
l) Hearing
Officer: Upon receipt of a Request for Due Process Hearing, the Department
shall appoint an impartial hearing officer. The Department shall maintain a
list of hearing officers that includes a statement of the qualifications of
each person hearing Due Process complaints. An impartial hearing officer must:
1) be licensed to practice law in
Illinois;
2) have knowledge about
the provisions of IDEA Part C and the Illinois EI Services System Act, the
needs of eligible children and their families, and services available to
them;
3) not be an employee of the
Department or a State educational agency, LEA or private service provider
involved in the provision of EI services or care of the child; and
4) not have a personal or professional
interest that would conflict with his/her objectivity in implementing the
process.
m) Time Limit
to File: A Request for Due Process Hearing must be submitted to the Department
as soon as possible, but at least within three months after the date when the
complainant knew or should have known about the alleged action that forms the
basis of the complaint. This timeline does not apply during any period of time
that the parent was prevented from requesting the hearing due to:
1) specific misrepresentations by the
Department, provider or regional intake entity that the problem forming the
basis of the complaint has been resolved; or
2) the Department, regional intake entity or
provider withholding information from the parent that is required to be
provided to the parent.
n) 30-Day Resolution Period Prior to Hearing:
If the Department has not resolved the complaint to the satisfaction of the
parent within 30 days after the receipt of the Request for Due Process Hearing,
the hearing may occur and the 45-day timeline for resolution of the complaint
by the hearing officer begins. This 30-day time period will be delayed by any
length of time the parent fails to participate in the resolution meeting,
unless the Department and the parent have jointly agreed to waive the
resolution meeting or to use Mediation.
o) Parent or Regional Intake Entity
Non-participation: If the Department is unable to obtain participation of the
parent in the resolution meeting after reasonable efforts have been made and
documented, the hearing officer may dismiss the complaint. If the Department
fails to hold the resolution meeting within 15 days after receiving notice of
the complaint or fails to participate in the meeting, the parent may request
the hearing officer to begin the 45-day timeline for resolution of the
complaint.
p) 45-Day Hearing
Resolution Time Period:
1) The hearing must be
resolved within 45 days, with final decision completed and mailed to the
parties. The 45-day time period begins the day after one of the following:
A) the parties agree in writing to waive the
resolution meeting; or
B) a
Mediation or resolution meeting starts but the parties agree in writing before
the end of the 30-day period that no agreement is possible; or
C) the parties agree in writing to continue
the Mediation at the end of the 30-day resolution period, but the parent or
regional intake entity later withdraws from the Mediation process.
2) The parties shall immediately
notify the appointed hearing officer and the Department in writing as soon as
any of the events described in subsection (p)(1) occurs.
q) Setting a Hearing: Within five days after
receiving written notification that the 45-day time period for resolution has
begun pursuant to subsection (p), the appointed hearing officer shall contact
the parties to determine a time and place reasonably convenient to the parties
for a hearing and any pre-hearing conferences. The hearing officer shall
provide the parties and the Department at least 10 days' written notice of the
dates, times, and locations of any pre-hearing conferences and of the hearing.
r) Pre-hearing Conference: The
hearing officer may conduct a pre-hearing conference either in person or by
telephone in order to narrow the issues, determine stipulations by the parties,
exchange evidence and names of witnesses, and consider other matters that may
aid in efficient disposition of the case. At the conclusion of the pre-hearing
conference, the hearing officer will prepare a written report of the conference
to be entered into the hearing record memorializing the discussion, any
stipulations and orders, and scheduling accommodations made for parties or
witnesses.
s) Party's Rights: Any
party to a hearing has a right to:
1) be
accompanied (at the party's expense) and advised by counsel and by individuals
with special knowledge or training with respect to children with
disabilities;
2) present evidence
and confront, cross-examine, and compel the attendance of witnesses;
3) prohibit the introduction of any evidence
at the proceeding that has not been disclosed to that party at least five days
before the proceedings;
4) obtain a
written or, at the option of the parent, electronic verbatim record of the
hearing; and
5) obtain written or,
at the option of the parent, electronic findings of fact and
decision.
t) Parents'
Rights: Parents involved in hearings must be given the right to:
1) have the child who is the subject of the
hearing present;
2) open the
hearing to the public (hearings shall be closed to the public unless the parent
requests them to be open); and
3)
have the record of the hearing, the findings of fact and decision provided at
no cost to the parents.
u) Disclosure of Evidence and Witnesses: As
soon as possible, but at least five business days prior to the hearing, each
party shall disclose to all other parties all evaluations completed by that
date and recommendations based on those evaluations that the party intends to
use at the hearing, as well as other evidence to be offered at hearing, names
of all witnesses and the nature of their testimony, and any other relevant
documentation whether or not it will be offered at the hearing.
v) Barring Evidence and Witnesses: The
hearing officer may bar any party failing to comply with subsection (u) from
introducing evidence or calling witnesses at hearing that were not produced as
required in subsection (u).
w)
Scope of Hearing: No party shall be allowed to raise issues at the hearing that
were not raised in the request for resolution, unless the other parties
agree.
x) Hearing Office Authority:
The hearing officer is authorized to conduct the hearing, administer oaths,
issue subpoenas to compel testimony or production of documents, rule on
motions, grant continuances, call or examine witnesses, and take such other
action as may be necessary to provide the parties with an opportunity to be
heard fairly and expeditiously.
y)
Burden of Proof: At the hearing, the party who requested the hearing has the
burden of proceeding first and demonstrating by a preponderance of the evidence
that the provision or proposed provision of EI services for the child violates
the laws or rules governing EI services.
z) Closing Arguments: Upon completion of the
submission of evidence and testimony, parties shall be given a reasonable
period of time to present written or oral arguments to complete the process
within 45 days.
aa) Substantive
Versus Procedural Violations: The hearing officer's determination as to whether
the child received appropriate EI services shall be made on substantive
grounds. In matters alleging a procedural violation, the hearing officer may
find that a child did not receive appropriate EI services only if the
procedural inadequacy impeded the child's right to appropriate EI services; or
significantly impeded the parent's opportunity to participate in the
decision-making process regarding the provision of appropriate EI services; or
caused deprivation of developmental benefit. This does not preclude the hearing
officer from ordering the Department or payee/provider to comply with
procedural requirements.
bb)
Hearing Record: The hearing officer shall maintain and prepare a record of the
proceeding and shall prepare written findings and a decision that shall be
served upon the parties. The record shall contain the request for the
proceeding, evidence submitted at the hearing, a transcript or recording of the
hearing, prehearing conference reports, motions, orders and all other material
that is part of the record.
cc)
Findings Made Public: Any and all written findings and decisions shall be
transmitted to the Illinois Interagency Council on EI and be made available to
the public without personally identifying information.
dd) Request for Delay: Either party may
request a delay in convening the hearing and/or the pre-hearing conference for
good cause. The party requesting the delay shall do so in writing to the
hearing officer, with a copy served at the same time to all parties. The
requesting party shall set forth the reasons for the request and the hearing
officer shall, upon receiving the request, either grant or deny the request,
taking into account the right to resolution as set forth in subsection (p),
which may be waived.
ee) Appeal:
Any party aggrieved by the findings and decision made in the hearing has a
right to bring civil action in a State court of competent jurisdiction or in a
district court of the United States regardless of the amount in
controversy.
ff) Calculation of
Time: Time periods set forth in this Section are calendar days unless otherwise
specified.
Notes
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