TITLE 89: SOCIAL SERVICES
CHAPTER III: DEPARTMENT OF CHILDREN AND FAMILY SERVICES
SUBCHAPTER d: LICENSING ADMINISTRATION
PART 385 BACKGROUND CHECKS
SECTION 385.80 APPEAL OF DECISION TO DENY LICENSE OR PERMIT BASED ON BACKGROUND CHECK INFORMATION


 

Section 385.80  Appeal of Decision to Deny License or Permit Based on Background Check Information

 

a)         What May Be Appealed Under This Part

A license applicant may appeal:

 

1)         the denial of an initial license based upon a background check conducted in accordance with this Part; or

 

2)         the denial of a permit based upon a background check conducted in accordance with this Part.

 

b)         What May Not Be Appealed Under This Part

            The Chief Administrative Law Judge will decide whether an issue is appropriate for a fair hearing pursuant to subsection (a). Issues inappropriate for a fair hearing under this Part include, but are not limited to:

 

1)         a decision based upon a background check conducted pursuant to this Part that revealed that the license applicant has a criminal conviction that bars licensure of, employment or residence in a licensed child care facility pursuant to Section 4(a) and (b) of the Child Care Act of 1969 [225 ILCS 10/4(a) and (b)], unless the licensing applicant can establish that an exception, as provided in Section 4(b)(2) of the Act, may exist (see Appendix A); or

 

2)         a decision based upon a background check conducted pursuant to this Part that revealed that the license applicant has a criminal conviction that bars licensure of or residence in a foster family home pursuant to Section 4(c) of the Child Care Act of 1969 [225 ILCS 10/4(c)], unless the licensing applicant can establish that an exception, as provided in Section 4(d) of the Child Care Act of 1969 [225 ILCS 10/4(d)], may exist.

 

c)         Appeal Request

            An individual requesting an opportunity for an appeal pursuant to subsection (a) shall submit such request, in writing, to the:

 

Administrative Hearings Unit

Department of Children and Family Services

406 E. Monroe St., Station #15

Springfield, Illinois 62701

 

All such requests must be postmarked within ten days after the date of written notice of the denial of an application for license or permit.

 

d)         Review of File

 

1)         After the Administrative Hearings Unit has received the individual's request for an appeal, the Administrator of the Administrative Hearings Unit shall notify the Department that the individual has appealed and the Department shall send to the Administrator a copy of the notice of denial of the application for a license or permit.  The notice of denial shall be prima facie evidence that the Department had a basis for refusing to issue the license or permit.

 

2)         The Administrator shall ask both the Department and the individual to submit any documents, records, statements, or other materials pertinent to the Department's denial of the application for licensure to create an appeal file.  The Administrator shall further advise the Department and the individual of the intent to examine the appeal file, including all materials submitted for the appeal file, to determine whether a genuine issue of material fact exists.  Within ten business days after the date of the Administrator's request for materials, both the Department representative and the individual shall submit to the Administrative Hearings Unit any and all documents, records, statements, materials, or evidence to establish that the Department's decision to deny the license because of the background check was either correct or incorrect.

 

3)         At least ten business days after the Administrator's request for materials, the Administrator shall examine the entire appeal file, including all materials submitted by both parties, and shall determine if a genuine issue of material fact exists.

 

4)         If the Administrator determines that no genuine issue of material fact exists, the Administrator shall dismiss the appeal.  The letter dismissing the appeal shall be the final administrative decision of the Department.

 

e)         The Appeal Process

            The individual shall be notified, in writing, of the date, time and location of the appeal hearing.  The individual may be represented by counsel of his or her choice, and may present evidence and/or witnesses on his or her own behalf.  The individual shall be required to produce evidence that he or she is not the individual identified in the background report, the background check report is inaccurate or, if the issue is delinquency in the payment of child support, that the child support has been paid in full or that a payment schedule has been arranged with the Department of Public Aid (Title IV-D cases) or a court of jurisdiction (all other child support cases).  Evidence to be considered shall be limited to:

 

1)         When the appeal involves an indicated CANTS/SACWIS report, written statements from the administrator of the child protection division for the Department that the individual named in the report is not the individual in question or that the record has been expunged or amended; or

 

2)         When the appeal involves a criminal history record, evidence shall be limited to written statements from a law enforcement agency or clerk of the court:  that the subject of the criminal history record provided to the Department is not the individual in question, or was never convicted of the crimes as alleged in the criminal history record, or was granted a full pardon by the Governor indicating that the person did not commit the crime; or that the crime was amended or expunged; or that the information in the criminal history record concerning the existence of the conviction was erroneous; or

 

3)         When the appeal involves delinquent child support, written statements from the Department of Public Aid or the clerk of the court, as applicable, that child support has been paid in full or a payment schedule arranged or that the payment record was incorrect.

 

f)         Final Administrative Decision

            The administrative law judge conducting the appeal must conclude that, when all the evidence presented pursuant to this Part and the applicable licensing standards are considered, there is clear and convincing evidence that the individual is not the person named in the indicated report/criminal history record or that the individual is suitable for service which allows access to children.  If the appeal is addressing the issue of delinquent child support, the individual must submit proof that the record was in error or that he or she has paid the delinquency or made arrangements for payment of delinquent child support.  A decision of the Department licensing authority is a final administrative decision, subject to review by a court of competent jurisdiction.

 

g)         Record of Appeal

            A written record shall be made of any reviews conducted pursuant to this Section, and such record shall contain copies of all documents relied upon in making the determination of fitness or unfitness for licensure.

 

(Source:  Amended at 28 Ill. Reg. 13432, effective September 30, 2004)