CHAPTER IV: DEPARTMENT OF HUMAN SERVICES
SUBCHAPTER e: EARLY CHILDHOOD SERVICES
PART 500 EARLY INTERVENTION PROGRAM
SECTION 500.140 ADMINISTRATIVE RESOLUTION OF COMPLAINTS BY PARENTS
Section 500.140 Administrative Resolution of Complaints By Parents
a) Who May File: The parents of a child between birth to 36 months or a public agency (as defined at 34 CFR 303.21(2007)) may request an impartial administrative proceeding 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 an impartial administrative proceeding (also called "complaint", "request for hearing" or "request for resolution") shall be made in writing to the Department at:
Chief
Bureau of Administrative Hearings
Illinois Department of Human Services
100 S. Grand Avenue East – 3rd Floor
Springfield, Illinois 62762
With a copy to the regional intake entity serving the child and to:
Chief
Bureau of Early Intervention
Illinois Department of Human Services
222 South College, 2nd Floor
Springfield, Illinois 62704-1958
c) What Must be Included:
1) The complaint requesting the hearing shall include:
A) the name, address, and telephone number of the child's parent, of the person making the request for the proceeding, if it is someone other than the child's parent, and of the child, or if no address, other available contact information;
B) the name of the child and the child's birthdate;
C) the name and address of the child's regional intake entity;
D) 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;
E) authorization for release of the child's early intervention service records to the Department and the hearing officer;
F) the remedy being sought or proposed resolution of the controversy to the extent known and available to the parents at the time;
G) the primary language spoken by the parents;
H) the service delivery agency and/or providers involved in the dispute; and
I) evidence supporting the remedy or proposed resolution (i.e., IFSP, family fee calculation form, bill payment, etc.).
2) The complaint shall be confidential and only used for purposes of resolution of the dispute and as agreed to by the child's parents.
d) Determination of Sufficiency: A party may not have an impartial administrative hearing until the party or its representative files a request for hearing containing all the information listed in subsection (c). The Request for Administrative Resolution of a Complaint by an Impartial Hearing Officer form shall be used, but the request will not be denied if the information is otherwise provided in writing. If the Department or other party deems the request insufficient, it shall notify the hearing officer and the complaining party in writing within 15 calendar days after receipt of the request. The hearing officer shall make a determination on the face of the notice as to whether or not it is sufficient, within five calendar days after receipt of the notification, and shall notify the parties in writing after that determination.
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 request for resolution.
f) Content and Assurance of Prior Notice: If "prior written notice" pursuant to Section 500.135(a)(6) was not provided to the parent regarding the subject matter of the parent's request for impartial administrative 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 agency 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 agency's proposal or refusal.
g) Amendment of Request: A party may amend its request for hearing if the other 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 an administrative 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 hearing, the regional intake entity will 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 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) A party may not be represented by an attorney at the resolution meeting unless the parent is accompanied by an attorney.
4) If the parties are able to resolve the dispute during the resolution meeting, the parties shall execute a legally binding agreement that is signed by both the parent and the other party representatives and that is enforceable in any State court of competent jurisdiction or in a district court of the United States.
5) A party may void this agreement within three business days after the agreement's execution.
6) Though recommended, the resolution meeting is not mandatory if the parent and parties agree to waive it or agree to use mediation.
i) Mediation Option: Upon receipt of a request for hearing, parties involved in the dispute shall be offered the option of mediation as set forth in Section 500.145.
j) Services During Proceeding: During the pendency of any proceeding involving a complaint, unless the parent and the Department agree otherwise, the child must continue to receive the appropriate Part C EI services currently being provided. If the complaint 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 or agency initiates a resolution under this Section. Regional intake entities shall maintain that information and make it available upon request or if a proceeding is initiated under this Section.
l) Hearing Officer: Upon written request for an impartial proceeding, the Department shall appoint an impartial hearing officer. The Department shall maintain a list of hearing officers. 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 Early Intervention Services System Act, the needs of eligible children and their families, and services available to them under those statutes;
3) not be an employee of the Department or a State educational agency, LEA or private service provider involved in the provision of early intervention services or care of the child;
4) not have a personal or professional interest that would conflict with his/her objectivity in implementing the process.
m) Time Limit to File: Complaints under this Part shall be submitted to the Department as soon as possible, but at least within three months after the complainant knew or should have known about the alleged activity in dispute. This timeline does not apply during any period of time that the parent was prevented from filing a complaint due to specific misrepresentations by the regional intake entity that it had resolved the problem, or during the withholding of information from the parent that is required to be provided under this Part.
n) Parties: Organizations and/or providers and/or individuals with whom the complainant has a dispute shall be parties to the proceeding as deemed necessary by the impartial hearing officer in order to resolve the dispute.
o) 30-Day Resolution Period Prior to Hearing: If the regional intake entity has not resolved the complaint to the satisfaction of the parent within 30 days after the receipt of the request for 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 parties have jointly agreed to waive the resolution meeting or to use mediation.
p) Parent or Regional Intake Entity Non-participation: If the regional intake entity 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 regional intake entity 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.
q) 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 regional intake entity shall immediately notify the appointed hearing officer and the Department in writing as soon as any of the events described in subsection (q)(1) occur.
r) Setting a Hearing: Within five days after receiving written notification that the 45-day time period for resolution has begun pursuant to subsection (q), 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.
s) 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.
t) 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.
u) 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.
v) 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 hearing.
w) Barring Evidence and Witnesses: The hearing officer may bar any party failing to comply with subsection (v) from introducing evidence or calling witnesses at hearing that were not produced as required in subsection (v).
x) 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.
y) 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.
z) Burden of Proof: At the hearing, the party requesting the administrative resolution 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 Part C, the Act, or this Part.
aa) 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.
bb) 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 a regional intake entity to comply with procedural requirements.
cc) 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 an impartial administrative 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.
dd) Findings Made Public: Any and all written findings and decisions shall be transmitted to the Illinois Interagency Council on Early Intervention and be made available to the public without personally identifying information.
ee) 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 (q), which may be waived.
ff) 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.
gg) Calculation of Time: Time periods set forth in this Section are calendar days unless otherwise specified.
(Source: Amended at 32 Ill. Reg. 2161, effective January 23, 2008)