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90_SB1100
105 ILCS 5/14-8.02a
Amends the School Code. Makes grammatical changes in a
provision of the School Code relating to impartial due
process hearings involving a child with disabilities.
LRB9003473THpk
LRB9003473THpk
1 AN ACT to amend the School Code by changing Section
2 14-8.02a.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The School Code is amended by changing
6 Section 14-8.02a as follows:
7 (105 ILCS 5/14-8.02a)
8 Sec. 14-8.02a. Impartial due process hearing; civil
9 action.
10 (a) This Section (rather than the impartial due process
11 procedures of subsections (h) through (o) of Section 14-8.02,
12 which shall continue to apply only to those impartial due
13 process hearings that are requested under this Article before
14 July 1, 1997) shall apply to all impartial due process
15 hearings requested on or after July 1, 1997.
16 (b) The State Board of Education shall establish an
17 impartial due process hearing system, including a corps of
18 hearing officers, in accordance with this Section and shall,
19 with the advice and approval of the Advisory Council on
20 Education of Children with Disabilities, promulgate rules and
21 regulations that are consistent with this Section to
22 establish the qualifications of hearing officers and the
23 rules and procedures for due process hearings. The State
24 Board of Education shall recruit candidates for due process
25 hearing officers who meet the criteria set forth in this
26 Section. Candidates shall be screened by a 7-member
27 Screening Committee consisting of the following: the Attorney
28 General, or his or her designee; the State Superintendent of
29 Education, or his or her designee; 3 members appointed by the
30 State Superintendent of Education, one of whom shall be a
31 parent of a student eligible for special education, another
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1 of whom shall be a director of special education for an
2 Illinois school district or special education joint
3 agreement, and the other of whom shall be an adult with a
4 disability; and 2 members appointed by the Attorney General,
5 one of whom shall be a parent of a student eligible for
6 special education and the other of whom shall be an
7 experienced special education hearing officer who is not a
8 candidate for appointment under this Section. The members of
9 the Screening Committee shall be appointed no later than 60
10 days following the effective date of this amendatory Act of
11 1996. The chairperson of the Advisory Council on Education
12 of Children with Disabilities or his or her designee shall
13 serve on the Screening Committee as an ex-officio non-voting
14 member. Three members of the Screening Committee shall be
15 appointed for initial terms of 2 years, and 4 members shall
16 be appointed for initial terms of 3 years, by using a lottery
17 system. Subsequent appointments and reappointments shall be
18 for terms for 3 years. The Screening Committee shall elect a
19 chairperson from among its voting members. Members of the
20 Screening Committee shall serve without compensation but
21 shall be reimbursed by the State Board of Education for their
22 expenses. The Screening Committee shall review applications
23 and supporting information, interview candidates, and
24 recommend applicants to the Advisory Council on Education of
25 Children with Disabilities based upon objective criteria it
26 develops and makes available to the public. The number of
27 candidates recommended shall equal 150% of the number deemed
28 necessary by the State Board of Education.
29 (c) The application process shall require each applicant
30 to provide a comprehensive disclosure of his or her
31 professional background and work experience. Applicants must
32 hold at least a masters level degree, a juris doctor degree,
33 or a bachelors degree with relevant experience. Current
34 employees of the State Board of Education, local school
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1 districts, special education cooperatives, regional service
2 areas or centers, regional educational cooperatives,
3 state-operated elementary and secondary schools, or private
4 providers of special education facilities or programs shall
5 be disqualified from serving as impartial due process hearing
6 officers. Nothing in this Section shall be construed to
7 prohibit retired school personnel and part-time contractual
8 school personnel who serve in a consulting capacity from
9 serving as hearing officers. Applications by individuals on
10 the State Board of Education's list of eligible Level I due
11 process hearing officers or Level II review officers when the
12 initial recruitment of due process hearing officers is
13 conducted under this Section shall be considered if they meet
14 the qualifications under this subsection.
15 (d) The State Board of Education shall, through a
16 competitive application process, enter into a contract with
17 an outside entity to establish and conduct mandatory training
18 programs for impartial due process hearing officers and an
19 annual evaluation of each impartial due process hearing
20 officer that shall include a written evaluation report. The
21 invitation for applications shall set forth minimum
22 qualifications for eligible applicants. Each contract under
23 this subsection may be renewed on an annual basis subject to
24 appropriations. The State Board of Education shall conduct a
25 new competitive application process at least once every 3
26 years after the initial contract is granted. The Screening
27 Committee established pursuant to subsection (b) of this
28 Section shall review the training proposals and forward them,
29 with recommendations in rank order, to the State Board of
30 Education. All impartial hearing officer candidates
31 recommended to the Advisory Council on Education of Children
32 with Disabilities shall successfully complete initial and all
33 follow-up trainings, as established by the contract between
34 the State Board of Education and the training entity, in
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1 order to be eligible to serve as an impartial due process
2 hearing officer. The training curriculum shall include, at a
3 minimum, instruction in federal and State law, rules, and
4 regulations, federal regulatory interpretations and court
5 decisions regarding special education and relevant general
6 education issues, diagnostic procedures, information about
7 disabilities, and techniques for conducting effective and
8 impartial hearings, including order of presentation. The
9 training shall be conducted in an unbiased manner by
10 education and legal experts, including qualified individuals
11 from outside the public education system. Upon the
12 completion of initial impartial due process hearing officer
13 training, the Advisory Council on Education of Children with
14 Disabilities, applying objective selection criteria it has
15 developed and made available to the public, shall go into
16 executive session and select the number of active impartial
17 due process hearing officers deemed necessary by the State
18 Board of Education from those candidates who have
19 successfully completed the initial training. Fifty percent
20 of the impartial due process hearing officers appointed shall
21 serve initial terms of 2 years, and the remaining 50% shall
22 serve initial terms of one year, such terms to be determined
23 by using a lottery system. After the initial term all
24 reappointments shall be for a term of 2 years. The Screening
25 Committee, based on its objective selection criteria and the
26 annual evaluation reports prepared by the training entity,
27 shall recommend whether the hearing officers whose terms are
28 expiring should be reappointed and shall transmit its
29 recommendations to the State Board of Education. If, at any
30 time, the State Board of Education, with the advice of the
31 Advisory Council on Education of Children with Disabilities,
32 determines that additional hearing officers are needed, the
33 hearing officer selection process described in this Section
34 shall be reopened to select the number of additional hearing
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1 officers deemed necessary by the State Board of Education.
2 Impartial due process hearing officers shall receive a
3 base annual stipend and per diem allowance for each hearing
4 at a rate established by the State Board of Education.
5 The State Board of Education shall provide impartial due
6 process hearing officers with access to relevant court
7 decisions, impartial hearing officer decisions with
8 child-specific identifying information deleted, statutory and
9 regulatory changes, and federal regulatory interpretations.
10 The State Board of Education shall index and maintain a
11 reporting system of impartial due process hearing decisions
12 and shall make such decisions available for review by the
13 public after deleting child-specific identifying information.
14 (e) An impartial due process hearing officer shall be
15 terminated by the State Board of Education for just cause if,
16 after written notice is provided, appropriate timely
17 corrective action is not taken. For purposes of this
18 subsection just cause shall be (1) failure or refusal to
19 accept assigned cases without good cause; (2) failure or
20 refusal to fulfill duties as a hearing officer in a timely
21 manner; (3) consistent disregard for applicable laws and
22 regulations in the conduct of hearings; (4) consistent
23 failure to conduct himself or herself in a patient,
24 dignified, and courteous manner to parties, witnesses,
25 counsel, and other participants in hearings; (5) failure to
26 accord parties or their representatives a full and fair
27 opportunity to be heard in matters coming before him or her;
28 (6) violating applicable laws regarding privacy and
29 confidentiality of records or information; (7) manifesting,
30 by words or conduct, bias or prejudice based upon race, sex,
31 religion, disability, or national origin; (8) failure to
32 recuse himself or herself from a hearing in which he or she
33 has a personal, professional, or financial conflict of
34 interest which he or she knew or should have known existed at
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1 any time prior to or during the hearing; (9) conviction in
2 any jurisdiction of any felony or of a misdemeanor involving
3 moral turpitude; and (10) falsification of a material fact on
4 his or her application to serve as a due process hearing
5 officer. In addition, an impartial hearing officer who, as a
6 result of events occurring after appointment, no longer meets
7 the minimum requirements set forth in this Section, shall be
8 disqualified to complete the balance of his or her contract
9 term.
10 The State Board of Education shall monitor, review, and
11 evaluate the impartial due process hearing system on a
12 regular basis by a process that includes a review of written
13 decisions and evaluations by participants in impartial due
14 process hearings and their representatives. The State Board
15 of Education shall prepare an annual written report no later
16 than July 1 of each year, beginning in 1998, evaluating the
17 impartial due process hearing system. The reports shall be
18 submitted to the members of the State Board of Education, the
19 State Superintendent of Education, the Advisory Council on
20 Education of Children with Disabilities, and the Screening
21 Committee and shall be made available to the public.
22 The training entity under subsection (d) shall conduct
23 annual evaluations of each hearing officer and shall prepare
24 written evaluation reports to be provided to the Screening
25 Committee for its consideration in the reappointment process.
26 The evaluation process shall include a review of written
27 decisions and evaluations by participants in impartial due
28 process hearings and their representatives. Each hearing
29 officer shall be provided with a copy of his or her
30 evaluation report and shall have an opportunity to review the
31 report with the training entity and submit written comments.
32 (f) An impartial due process hearing shall be convened
33 upon the request of a parent or guardian, student if at least
34 18 years of age or emancipated, or a school district. A
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1 school district shall make a request in writing to the State
2 Board of Education and promptly mail a copy of the request to
3 the parents or guardian of the student at their last known
4 address. A request made by the parent, guardian, or student
5 shall be made in writing to the superintendent of the school
6 district in which the student resides, who shall forward the
7 request to the State Board of Education within 5 days of
8 receipt of the request. Within 5 days after receipt of the
9 request the State Board of Education shall appoint a due
10 process hearing officer using a rotating appointment system
11 and shall notify the hearing officer of his or her
12 appointment. No person who is an employee of a school
13 district that is involved in the education or care of the
14 student shall conduct the hearing. A hearing officer having
15 a personal or professional interest that would conflict with
16 his or her objectivity in the hearing shall so notify the
17 State Board of Education and shall be replaced by the next
18 scheduled impartial due process hearing officer under the
19 rotation system. For purposes of this subsection an assigned
20 hearing officer shall be considered to have a conflict of
21 interest if, at any time prior to the issuance of his or her
22 written decision, he or she knows or should know that he or
23 she may receive remuneration from a party to the hearing
24 within 3 years following the conclusion of the due process
25 hearing. A party to a due process hearing shall be permitted
26 one substitution of hearing officer as a matter of right, in
27 accordance with procedures established by the rules adopted
28 by the State Board of Education under this Section. The
29 State Board of Education shall randomly select and appoint
30 another hearing officer within 5 days after receiving notice
31 that the appointed hearing officer is ineligible to serve or
32 upon receiving a proper request for substitution of hearing
33 officer. If a party withdraws its request for a due process
34 hearing after a hearing officer has been appointed, that
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1 hearing officer shall retain jurisdiction over a subsequent
2 hearing that involves the same parties and is requested
3 within one year from the date of withdrawal of the previous
4 request, unless that hearing officer is unavailable.
5 A former employee or current resident of the school
6 district, special education cooperative, or other public
7 entity involved in the due process hearing shall recuse
8 himself or herself. A hearing officer shall disclose any
9 actual or potential conflicts of interests to the parties
10 upon learning of those conflicts. Any party may raise facts
11 that constitute a conflict of interest for the hearing
12 officer at any time before or during the hearing and may move
13 for recusal.
14 For purposes of this Section, "days" shall be computed in
15 accordance with Section 1.11 of the Statute on Statutes.
16 (g) Impartial due process hearings shall be conducted
17 pursuant to this Section and rules and regulations
18 promulgated by the State Board of Education consistent with
19 this Section and other governing laws and regulations. The
20 hearing shall be closed to the public unless the parents or
21 guardian request that the hearing be open to the public. The
22 parents or guardian involved in the hearing shall have the
23 right to have the student who is the subject of the hearing
24 present. The hearing shall be held at a time and place which
25 are reasonably convenient to the parties involved. Upon the
26 request of a party, the hearing officer shall hold the
27 hearing at a location neutral to the parties if the hearing
28 officer determines that there is no cost for securing the use
29 of the neutral location. Once appointed, the impartial due
30 process hearing officer shall not communicate with the State
31 Board of Education or its employees concerning the hearing,
32 except that, where circumstances require, communications for
33 administrative purposes that do not deal with substantive or
34 procedural matters or issues on the merits are authorized,
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1 provided that the hearing officer promptly notifies all
2 parties of the substance of the communication as a matter of
3 record.
4 The hearing officer shall convene a prehearing conference
5 no later than 14 days before the scheduled date for the due
6 process hearing for the general purpose of aiding in the
7 fair, orderly, and expeditious conduct of the hearing. The
8 hearing officer shall provide the parties with written notice
9 of the prehearing conference at least 10 days in advance of
10 the conference. The written notice shall require the parties
11 to notify the hearing officer by a date certain whether they
12 intend to participate in the prehearing conference. The
13 hearing officer may conduct the prehearing conference in
14 person or by telephone. Each party shall disclose at the
15 prehearing conference (1) whether it is represented by legal
16 counsel or intends to retain legal counsel; (2) the matters
17 it believes to be in dispute in the case and the specific
18 relief being sought; (3) whether there are any additional
19 evaluations for the student that it intends to introduce into
20 the hearing record that have not been previously disclosed to
21 the other parties; (4) a list of all documents it intends to
22 introduce into the hearing record, including the date and a
23 brief description of each document; and (5) the names of all
24 witnesses it intends to call to testify at the hearing. The
25 hearing officer shall specify the order of presentation to be
26 used at the hearing. If the prehearing conference is held by
27 telephone, the parties shall transmit the information
28 required in this paragraph in such a manner that it is
29 available to all parties at the time of the prehearing
30 conference. The State Board of Education shall, by rule,
31 establish additional procedures for the conduct of prehearing
32 conferences. The impartial due process hearing officer shall
33 not initiate or participate in any ex parte communications
34 with the parties, except to arrange the date, time, and
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1 location of the prehearing conference and due process hearing
2 and to receive confirmation of whether a party intends to
3 participate in the prehearing conference. The parties shall
4 disclose and provide to each other any evidence which they
5 intend to submit into the hearing record no later than 5 days
6 before the hearing. Any party to a hearing has the right to
7 prohibit the introduction of any evidence at the hearing that
8 has not been disclosed to that party at least 5 days before
9 the hearing.
10 The school district shall present evidence that the
11 special education needs of the child have been appropriately
12 identified and that the special education program and related
13 services proposed to meet the needs of the child are
14 adequate, appropriate, and available. Any party to the
15 hearing shall have the right to (1) be represented by counsel
16 and be accompanied and advised by individuals with special
17 knowledge or training with respect to the problems of
18 children with disabilities, at the party's own expense; (2)
19 present evidence and confront and cross-examine witnesses;
20 (3) move for the exclusion of witnesses from the hearing
21 until they are called to testify, provided, however, that
22 this provision may not be invoked to exclude the individual
23 designated by a party to assist that party or its
24 representative in the presentation of the case; (4) obtain a
25 written or electronic verbatim record of the proceedings
26 within 30 days of receipt of a written request from the
27 parents to by the school district; and (5) obtain a written
28 decision, including findings of fact and conclusions of law,
29 within 10 days after the conclusion of the hearing. If at
30 issue, the school district shall present evidence that it has
31 properly identified and evaluated the nature and severity of
32 the student's suspected or identified disability and that, if
33 the student has been or should have been determined eligible
34 for special education and related services, that it is
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1 providing or has offered a free appropriate public education
2 to the student in the least restrictive environment,
3 consistent with procedural safeguards and in accordance with
4 an individualized educational program. At any time prior to
5 the conclusion of the hearing, the impartial due process
6 hearing officer shall have the authority to require
7 additional information and order independent evaluations for
8 the student at the expense of the school district. The State
9 Board of Education and the school district shall share
10 equally the costs of providing a written or electronic
11 verbatim record of the proceedings. Any party may request
12 that the due process hearing officer issue a subpoena to
13 compel the testimony of witnesses or the production of
14 documents relevant to the resolution of the hearing.
15 Whenever a person refuses to comply with any subpoena issued
16 under this Section, the circuit court of the county in which
17 that hearing is pending, on application of the impartial
18 hearing officer or the party requesting the issuance of the
19 subpoena, may compel compliance through the contempt powers
20 of the court in the same manner as if the requirements of a
21 subpoena issued by the court had been disobeyed.
22 (h) The impartial hearing officer shall issue a written
23 decision, including findings of fact and conclusions of law,
24 within 10 days after the conclusion of the hearing and mail a
25 copy of the decision to the parents, guardian, or student (if
26 the student requests the hearing), the school district, the
27 director of special education, legal representatives of the
28 parties, and the State Board of Education. Unless the hearing
29 officer has granted specific extensions of time at the
30 request of a party, a final decision, including the
31 clarification of a decision requested under this subsection,
32 shall be reached and mailed to the parties named above not
33 later than 45 days after the request for hearing is received
34 by the school district, public agency, or the State Board of
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1 Education, whichever is sooner. The decision shall specify
2 the educational and related services that shall be provided
3 to the student in accordance with the student's needs. The
4 hearing officer shall retain jurisdiction for the sole
5 purpose of considering a request for clarification of the
6 final decision submitted in writing by a party to the
7 impartial hearing officer within 5 days after receipt of the
8 decision. A copy of the request for clarification shall
9 specify the portions of the decision for which clarification
10 is sought and shall be mailed to all parties of record and to
11 the State Board of Education. The request shall operate to
12 stay implementation of those portions of the decision for
13 which clarification is sought, pending action on the request
14 by the hearing officer, unless the parties otherwise agree.
15 The hearing officer shall issue a clarification of the
16 specified portion of the decision or issue a partial or full
17 denial of the request in writing within 10 days of receipt of
18 the request and mail copies to all parties to whom the
19 decision was mailed. This subsection does not permit a party
20 to request, or authorize a hearing officer to entertain,
21 reconsideration of the decision itself. The statute of
22 limitations for seeking review of the decision shall be
23 tolled from the date the request is submitted until the date
24 the hearing officer acts upon the request. Upon the filing
25 of a civil action pursuant to subsection (i) of this Section,
26 the hearing officer shall no longer exercise jurisdiction
27 over the case. The hearing officer's decision shall be
28 binding upon the school district and the parents or guardian
29 unless a civil action is commenced.
30 (i) Any party to an impartial due process hearing
31 aggrieved by the final written decision of the impartial due
32 process hearing officer shall have the right to commence a
33 civil action with respect to the issues presented in the
34 impartial due process hearing. That civil action shall be
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1 brought in any court of competent jurisdiction within 120
2 days after a copy of the decision of the impartial due
3 process hearing officer is mailed to the party as provided in
4 subsection (h). The civil action authorized by this
5 subsection shall not be exclusive of any rights or causes of
6 action otherwise available. The commencement of a civil
7 action under this subsection shall operate as a supersedeas.
8 In any action brought under this subsection the Court shall
9 receive the records of the impartial due process hearing,
10 shall hear additional evidence at the request of a party,
11 and, basing its decision on the preponderance of the
12 evidence, shall grant such relief as the court determines is
13 appropriate. In any instance where a school district
14 willfully disregards applicable regulations or statutes
15 regarding a child covered by this Article, and which
16 disregard has been detrimental to the child, the school
17 district shall be liable for any reasonable attorney's fees
18 incurred by the parent or guardian in connection with
19 proceedings under this Section.
20 (j) During the pendency of any administrative or
21 judicial proceeding conducted pursuant to this Section,
22 unless the school district and the parents or guardian of the
23 student otherwise agree, the student shall remain in his or
24 her present educational placement and continue in his or her
25 present eligibility status and special education and related
26 services, if any. If the hearing officer orders a change in
27 the eligibility status, educational placement, or special
28 education and related services of the student, that change
29 shall not be implemented until 30 days have elapsed following
30 the date the hearing officer's decision is mailed to the
31 parties in order to allow any party aggrieved by the decision
32 to commence a civil action to stay implementation of the
33 decision. If applying for initial admission to the school
34 district, the student shall, with the consent of the parents
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1 or guardian, be placed in the school district program until
2 all such proceedings have been completed. The costs for any
3 special education and related services or placement incurred
4 following 60 school days after the initial request for
5 evaluation shall be borne by the school district if the
6 services or placement is in accordance with the final
7 determination as to the special education and related
8 services or placement that must be provided to the child,
9 provided that during that 60 day period there have been no
10 delays caused by the child's parent or guardian.
11 (k) Whenever the parents or guardian of a child of the
12 type described in Section 14-1.02 are not known, are
13 unavailable, or the child is a ward of the State, a person
14 shall be assigned to serve as surrogate parent for the child
15 in matters relating to the identification, evaluation, and
16 educational placement of the child and the provision of a
17 free appropriate public education to the child. Persons
18 shall be assigned as surrogate parents by the State
19 Superintendent of Education. The State Board of Education
20 shall promulgate rules and regulations establishing
21 qualifications of those persons and their responsibilities
22 and the procedures to be followed in making assignments of
23 persons as surrogate parents. Surrogate parents shall not be
24 employees of the school district, an agency created by joint
25 agreement under Section 10-22.31, an agency involved in the
26 education or care of the student, or the State Board of
27 Education. Services of any person assigned as surrogate
28 parent shall terminate if the parent or guardian becomes
29 available unless otherwise requested by the parents or
30 guardian. The assignment of a person as surrogate parent at
31 no time supersedes, terminates, or suspends the parents' or
32 guardians' legal authority relative to the child. Any person
33 participating in good faith as surrogate parent on behalf of
34 the child before school officials or a hearing officer shall
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1 have immunity from civil or criminal liability that otherwise
2 might result by reason of that participation, except in cases
3 of willful and wanton misconduct.
4 (l) At all stages of the hearing the hearing officer
5 shall require that interpreters be made available by the
6 school district for persons who are deaf or for persons whose
7 normally spoken language is other than English.
8 (m) If any provision of this Section or its application
9 to any person or circumstance is held invalid, the invalidity
10 of that provision or application does not affect other
11 provisions or applications of the Section that can be given
12 effect without the invalid application or provision, and to
13 this end the provisions of this Section are severable, unless
14 otherwise provided by this Section.
15 (Source: P.A. 89-652, eff. 8-14-96.)