Illinois General Assembly - Full Text of HB4193
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Full Text of HB4193  100th General Assembly




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1    AN ACT concerning education.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The School Code is amended by changing Section
514-8.02a as follows:
6    (105 ILCS 5/14-8.02a)
7    Sec. 14-8.02a. Impartial due process hearing; civil
9    (a) This Section shall apply to all impartial due process
10hearings requested on or after July 1, 2005. Impartial due
11process hearings requested before July 1, 2005 shall be
12governed by the rules described in Public Act 89-652.
13    (a-5) For purposes of this Section and Section 14-8.02b of
14this Code, days shall be computed in accordance with Section
151.11 of the Statute on Statutes.
16    (b) The State Board of Education shall establish an
17impartial due process hearing system in accordance with this
18Section and may, with the advice and approval of the Advisory
19Council on Education of Children with Disabilities, promulgate
20rules and regulations consistent with this Section to establish
21the rules and procedures for due process hearings.
22    (c) (Blank).
23    (d) (Blank).



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1    (e) (Blank).
2    (f) An impartial due process hearing shall be convened upon
3the request of a parent, student if at least 18 years of age or
4emancipated, or a school district. A school district shall make
5a request in writing to the State Board of Education and
6promptly mail a copy of the request to the parents or student
7(if at least 18 years of age or emancipated) at the parent's or
8student's last known address. A request made by the parent or
9student shall be made in writing to the superintendent of the
10school district where the student resides. The superintendent
11shall forward the request to the State Board of Education
12within 5 days after receipt of the request. The request shall
13be filed no more than 2 years following the date the person or
14school district knew or should have known of the event or
15events forming the basis for the request. The request shall, at
16a minimum, contain all of the following:
17        (1) The name of the student, the address of the
18    student's residence, and the name of the school the student
19    is attending.
20        (2) In the case of homeless children (as defined under
21    the federal McKinney-Vento Homeless Assistance Act (42
22    U.S.C. 11434a(2))), available contact information for the
23    student and the name of the school the student is
24    attending.
25        (3) A description of the nature of the problem relating
26    to the actual or proposed placement, identification,



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1    services, or evaluation of the student, including facts
2    relating to the problem.
3        (4) A proposed resolution of the problem to the extent
4    known and available to the party at the time.
5    (f-5) Within 3 days after receipt of the hearing request,
6the State Board of Education shall appoint a due process
7hearing officer using a rotating appointment system and shall
8notify the hearing officer of his or her appointment.
9    For a school district other than a school district located
10in a municipality having a population exceeding 500,000, a
11hearing officer who is a current resident of the school
12district, special education cooperative, or other public
13entity involved in the hearing shall recuse himself or herself.
14A hearing officer who is a former employee of the school
15district, special education cooperative, or other public
16entity involved in the hearing shall immediately disclose the
17former employment to the parties and shall recuse himself or
18herself, unless the parties otherwise agree in writing. A
19hearing officer having a personal or professional interest that
20may conflict with his or her objectivity in the hearing shall
21disclose the conflict to the parties and shall recuse himself
22or herself unless the parties otherwise agree in writing. For
23purposes of this subsection an assigned hearing officer shall
24be considered to have a conflict of interest if, at any time
25prior to the issuance of his or her written decision, he or she
26knows or should know that he or she may receive remuneration



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1from a party to the hearing within 3 years following the
2conclusion of the due process hearing.
3    A party to a due process hearing shall be permitted one
4substitution of hearing officer as a matter of right, in
5accordance with procedures established by the rules adopted by
6the State Board of Education under this Section. The State
7Board of Education shall randomly select and appoint another
8hearing officer within 3 days after receiving notice that the
9appointed hearing officer is ineligible to serve or upon
10receiving a proper request for substitution of hearing officer.
11If a party withdraws its request for a due process hearing
12after a hearing officer has been appointed, that hearing
13officer shall retain jurisdiction over a subsequent hearing
14that involves the same parties and is requested within one year
15from the date of withdrawal of the previous request, unless
16that hearing officer is unavailable.
17    Any party may raise facts that constitute a conflict of
18interest for the hearing officer at any time before or during
19the hearing and may move for recusal.
20    (g) Impartial due process hearings shall be conducted
21pursuant to this Section and any rules and regulations
22promulgated by the State Board of Education consistent with
23this Section and other governing laws and regulations. The
24hearing shall address only those issues properly raised in the
25hearing request under subsection (f) of this Section or, if
26applicable, in the amended hearing request under subsection



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1(g-15) of this Section. The hearing shall be closed to the
2public unless the parents request that the hearing be open to
3the public. The parents involved in the hearing shall have the
4right to have the student who is the subject of the hearing
5present. The hearing shall be held at a time and place which
6are reasonably convenient to the parties involved. Upon the
7request of a party, the hearing officer shall hold the hearing
8at a location neutral to the parties if the hearing officer
9determines that there is no cost for securing the use of the
10neutral location. Once appointed, the impartial due process
11hearing officer shall not communicate with the State Board of
12Education or its employees concerning the hearing, except that,
13where circumstances require, communications for administrative
14purposes that do not deal with substantive or procedural
15matters or issues on the merits are authorized, provided that
16the hearing officer promptly notifies all parties of the
17substance of the communication as a matter of record.
18    (g-5) Unless the school district has previously provided
19prior written notice to the parent or student (if at least 18
20years of age or emancipated) regarding the subject matter of
21the hearing request, the school district shall, within 10 days
22after receiving a hearing request initiated by a parent or
23student (if at least 18 years of age or emancipated), provide a
24written response to the request that shall include all of the
26        (1) An explanation of why the school district proposed



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1    or refused to take the action or actions described in the
2    hearing request.
3        (2) A description of other options the IEP team
4    considered and the reasons why those options were rejected.
5        (3) A description of each evaluation procedure,
6    assessment, record, report, or other evidence the school
7    district used as the basis for the proposed or refused
8    action or actions.
9        (4) A description of the factors that are or were
10    relevant to the school district's proposed or refused
11    action or actions.
12    (g-10) When the hearing request has been initiated by a
13school district, within 10 days after receiving the request,
14the parent or student (if at least 18 years of age or
15emancipated) shall provide the school district with a response
16that specifically addresses the issues raised in the school
17district's hearing request. The parent's or student's response
18shall be provided in writing, unless he or she is illiterate or
19has a disability that prevents him or her from providing a
20written response. The parent's or student's response may be
21provided in his or her native language, if other than English.
22In the event that illiteracy or another disabling condition
23prevents the parent or student from providing a written
24response, the school district shall assist the parent or
25student in providing the written response.
26    (g-15) Within 15 days after receiving notice of the hearing



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1request, the non-requesting party may challenge the
2sufficiency of the request by submitting its challenge in
3writing to the hearing officer. Within 5 days after receiving
4the challenge to the sufficiency of the request, the hearing
5officer shall issue a determination of the challenge in writing
6to the parties. In the event that the hearing officer upholds
7the challenge, the party who requested the hearing may, with
8the consent of the non-requesting party or hearing officer,
9file an amended request. Amendments are permissible for the
10purpose of raising issues beyond those in the initial hearing
11request. In addition, the party who requested the hearing may
12amend the request once as a matter of right by filing the
13amended request within 5 days after filing the initial request.
14An amended request, other than an amended request as a matter
15of right, shall be filed by the date determined by the hearing
16officer, but in no event any later than 5 days prior to the
17date of the hearing. If an amended request, other than an
18amended request as a matter of right, raises issues that were
19not part of the initial request, the applicable timeline for a
20hearing, including the timeline under subsection (g-20) of this
21Section, shall recommence.
22    (g-20) Within 15 days after receiving a request for a
23hearing from a parent or student (if at least 18 years of age
24or emancipated) or, in the event that the school district
25requests a hearing, within 15 days after initiating the
26request, the school district shall convene a resolution meeting



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1with the parent and relevant members of the IEP team who have
2specific knowledge of the facts contained in the request for
3the purpose of resolving the problem that resulted in the
4request. The resolution meeting shall include a representative
5of the school district who has decision-making authority on
6behalf of the school district. Unless the parent is accompanied
7by an attorney at the resolution meeting, the school district
8may not include an attorney representing the school district.
9    The resolution meeting may not be waived unless agreed to
10in writing by the school district and the parent or student (if
11at least 18 years of age or emancipated) or the parent or
12student (if at least 18 years of age or emancipated) and the
13school district agree in writing to utilize mediation in place
14of the resolution meeting. If either party fails to cooperate
15in the scheduling or convening of the resolution meeting, the
16hearing officer may order an extension of the timeline for
17completion of the resolution meeting or, upon the motion of a
18party and at least 7 days after ordering the non-cooperating
19party to cooperate, order the dismissal of the hearing request
20or the granting of all relief set forth in the request, as
22    In the event that the school district and the parent or
23student (if at least 18 years of age or emancipated) agree to a
24resolution of the problem that resulted in the hearing request,
25the terms of the resolution shall be committed to writing and
26signed by the parent or student (if at least 18 years of age or



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1emancipated) and the representative of the school district with
2decision-making authority. The agreement shall be legally
3binding and shall be enforceable in any State or federal court
4of competent jurisdiction. In the event that the parties
5utilize the resolution meeting process, the process shall
6continue until no later than the 30th day following the receipt
7of the hearing request by the non-requesting party (or as
8properly extended by order of the hearing officer) to resolve
9the issues underlying the request, at which time the timeline
10for completion of the impartial due process hearing shall
11commence. The State Board of Education may, by rule, establish
12additional procedures for the conduct of resolution meetings.
13    (g-25) If mutually agreed to in writing, the parties to a
14hearing request may request State-sponsored mediation as a
15substitute for the resolution process described in subsection
16(g-20) of this Section or may utilize mediation at the close of
17the resolution process if all issues underlying the hearing
18request have not been resolved through the resolution process.
19    (g-30) If mutually agreed to in writing, the parties to a
20hearing request may waive the resolution process described in
21subsection (g-20) of this Section. Upon signing a written
22agreement to waive the resolution process, the parties shall be
23required to forward the written waiver to the hearing officer
24appointed to the case within 2 business days following the
25signing of the waiver by the parties. The timeline for the
26impartial due process hearing shall commence on the date of the



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1signing of the waiver by the parties.
2    (g-35) The timeline for completing the impartial due
3process hearing, as set forth in subsection (h) of this
4Section, shall be initiated upon the occurrence of any one of
5the following events:
6        (1) The unsuccessful completion of the resolution
7    process as described in subsection (g-20) of this Section.
8        (2) The mutual agreement of the parties to waive the
9    resolution process as described in subsection (g-25) or
10    (g-30) of this Section.
11    (g-40) The hearing officer shall convene a prehearing
12conference no later than 14 days before the scheduled date for
13the due process hearing for the general purpose of aiding in
14the fair, orderly, and expeditious conduct of the hearing. The
15hearing officer shall provide the parties with written notice
16of the prehearing conference at least 7 days in advance of the
17conference. The written notice shall require the parties to
18notify the hearing officer by a date certain whether they
19intend to participate in the prehearing conference. The hearing
20officer may conduct the prehearing conference in person or by
21telephone. Each party shall at the prehearing conference (1)
22disclose whether it is represented by legal counsel or intends
23to retain legal counsel; (2) clarify matters it believes to be
24in dispute in the case and the specific relief being sought;
25(3) disclose whether there are any additional evaluations for
26the student that it intends to introduce into the hearing



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1record that have not been previously disclosed to the other
2parties; (4) disclose a list of all documents it intends to
3introduce into the hearing record, including the date and a
4brief description of each document; and (5) disclose the names
5of all witnesses it intends to call to testify at the hearing.
6The hearing officer shall specify the order of presentation to
7be used at the hearing. If the prehearing conference is held by
8telephone, the parties shall transmit the information required
9in this paragraph in such a manner that it is available to all
10parties at the time of the prehearing conference. The State
11Board of Education may, by rule, establish additional
12procedures for the conduct of prehearing conferences.
13    (g-45) The impartial due process hearing officer shall not
14initiate or participate in any ex parte communications with the
15parties, except to arrange the date, time, and location of the
16prehearing conference, due process hearing, or other status
17conferences convened at the discretion of the hearing officer
18and to receive confirmation of whether a party intends to
19participate in the prehearing conference.
20    (g-50) The parties shall disclose and provide to each other
21any evidence which they intend to submit into the hearing
22record no later than 5 days before the hearing. Any party to a
23hearing has the right to prohibit the introduction of any
24evidence at the hearing that has not been disclosed to that
25party at least 5 days before the hearing. The party requesting
26a hearing shall not be permitted at the hearing to raise issues



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1that were not raised in the party's initial or amended request,
2unless otherwise permitted in this Section.
3    (g-55) All reasonable efforts must be made by the parties
4to present their respective cases at the hearing within a
5cumulative period of 7 days. When scheduling hearing dates, the
6hearing officer shall schedule the final day of the hearing no
7more than 30 calendar days after the first day of the hearing
8unless good cause is shown. This subsection (g-55) shall not be
9applied in a manner that (i) denies any party to the hearing a
10fair and reasonable allocation of time and opportunity to
11present its case in its entirety or (ii) deprives any party to
12the hearing of the safeguards accorded under the federal
13Individuals with Disabilities Education Improvement Act of
142004 (Public Law 108-446), regulations promulgated under the
15Individuals with Disabilities Education Improvement Act of
162004, or any other applicable law. The school district shall
17present evidence that the special education needs of the child
18have been appropriately identified and that the special
19education program and related services proposed to meet the
20needs of the child are adequate, appropriate, and available.
21Any party to the hearing shall have the right to (1) be
22represented by counsel and be accompanied and advised by
23individuals with special knowledge or training with respect to
24the problems of children with disabilities, at the party's own
25expense; (2) present evidence and confront and cross-examine
26witnesses; (3) move for the exclusion of witnesses from the



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1hearing until they are called to testify, provided, however,
2that this provision may not be invoked to exclude the
3individual designated by a party to assist that party or its
4representative in the presentation of the case; (4) obtain a
5written or electronic verbatim record of the proceedings within
630 days of receipt of a written request from the parents by the
7school district; and (5) obtain a written decision, including
8findings of fact and conclusions of law, within 10 calendar
9days, excluding Saturday, Sunday, and any State holiday, after
10the conclusion of the hearing. If at issue, the school district
11shall present evidence that it has properly identified and
12evaluated the nature and severity of the student's suspected or
13identified disability and that, if the student has been or
14should have been determined eligible for special education and
15related services, that it is providing or has offered a free
16appropriate public education to the student in the least
17restrictive environment, consistent with procedural safeguards
18and in accordance with an individualized educational program.
19At any time prior to the conclusion of the hearing, the
20impartial due process hearing officer shall have the authority
21to require additional information and order independent
22evaluations for the student at the expense of the school
23district. The State Board of Education and the school district
24shall share equally the costs of providing a written or
25electronic verbatim record of the proceedings. Any party may
26request that the due process hearing officer issue a subpoena



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1to compel the testimony of witnesses or the production of
2documents relevant to the resolution of the hearing. Whenever a
3person refuses to comply with any subpoena issued under this
4Section, the circuit court of the county in which that hearing
5is pending, on application of the impartial hearing officer or
6the party requesting the issuance of the subpoena, may compel
7compliance through the contempt powers of the court in the same
8manner as if the requirements of a subpoena issued by the court
9had been disobeyed.
10    (h) The impartial hearing officer shall issue a written
11decision, including findings of fact and conclusions of law,
12within 10 calendar days, excluding Saturday, Sunday, and any
13State holiday, after the conclusion of the hearing and send by
14certified mail a copy of the decision to the parents or student
15(if the student requests the hearing), the school district, the
16director of special education, legal representatives of the
17parties, and the State Board of Education. Unless the hearing
18officer has granted specific extensions of time at the request
19of a party, a final decision, including the clarification of a
20decision requested under this subsection, shall be reached and
21mailed to the parties named above not later than 45 days after
22the initiation of the timeline for conducting the hearing, as
23described in subsection (g-35) of this Section. The decision
24shall specify the educational and related services that shall
25be provided to the student in accordance with the student's
26needs and the timeline for which the school district shall



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1submit evidence to the State Board of Education to demonstrate
2compliance with the hearing officer's decision in the event
3that the decision orders the school district to undertake
4corrective action. The hearing officer shall retain
5jurisdiction for the sole purpose of considering a request for
6clarification of the final decision submitted in writing by a
7party to the impartial hearing officer within 5 days after
8receipt of the decision. A copy of the request for
9clarification shall specify the portions of the decision for
10which clarification is sought and shall be mailed to all
11parties of record and to the State Board of Education. The
12request shall operate to stay implementation of those portions
13of the decision for which clarification is sought, pending
14action on the request by the hearing officer, unless the
15parties otherwise agree. The hearing officer shall issue a
16clarification of the specified portion of the decision or issue
17a partial or full denial of the request in writing within 10
18days of receipt of the request and mail copies to all parties
19to whom the decision was mailed. This subsection does not
20permit a party to request, or authorize a hearing officer to
21entertain, reconsideration of the decision itself. The statute
22of limitations for seeking review of the decision shall be
23tolled from the date the request is submitted until the date
24the hearing officer acts upon the request. The hearing
25officer's decision shall be binding upon the school district
26and the parents unless a civil action is commenced.



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1    (i) Any party to an impartial due process hearing aggrieved
2by the final written decision of the impartial due process
3hearing officer shall have the right to commence a civil action
4with respect to the issues presented in the impartial due
5process hearing. That civil action shall be brought in any
6court of competent jurisdiction within 120 days after a copy of
7the decision of the impartial due process hearing officer is
8mailed to the party as provided in subsection (h). The civil
9action authorized by this subsection shall not be exclusive of
10any rights or causes of action otherwise available. The
11commencement of a civil action under this subsection shall
12operate as a supersedeas. In any action brought under this
13subsection the Court shall receive the records of the impartial
14due process hearing, shall hear additional evidence at the
15request of a party, and, basing its decision on the
16preponderance of the evidence, shall grant such relief as the
17court determines is appropriate. In any instance where a school
18district willfully disregards applicable regulations or
19statutes regarding a child covered by this Article, and which
20disregard has been detrimental to the child, the school
21district shall be liable for any reasonable attorney's fees
22incurred by the parent in connection with proceedings under
23this Section.
24    (j) During the pendency of any administrative or judicial
25proceeding conducted pursuant to this Section, including
26mediation (if the school district or other public entity



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1voluntarily agrees to participate in mediation), unless the
2school district and the parents or student (if at least 18
3years of age or emancipated) otherwise agree, the student shall
4remain in his or her present educational placement and continue
5in his or her present eligibility status and special education
6and related services, if any. If mediation fails to resolve the
7dispute between the parties, or if the parties do not agree to
8use mediation, the parent (or student if 18 years of age or
9older or emancipated) shall have 10 days after the mediation
10concludes, or after a party declines to use mediation, to file
11a request for a due process hearing in order to continue to
12invoke the "stay-put" provisions of this subsection (j). If
13applying for initial admission to the school district, the
14student shall, with the consent of the parents (if the student
15is not at least 18 years of age or emancipated), be placed in
16the school district program until all such proceedings have
17been completed. The costs for any special education and related
18services or placement incurred following 60 school days after
19the initial request for evaluation shall be borne by the school
20district if the services or placement is in accordance with the
21final determination as to the special education and related
22services or placement that must be provided to the child,
23provided that during that 60-day 60 day period there have been
24no delays caused by the child's parent. The requirements and
25procedures of this subsection (j) shall be included in the
26uniform notices developed by the State Superintendent under



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1subsection (g) of Section 14-8.02 of this Code.
2    (k) Whenever the parents of a child of the type described
3in Section 14-1.02 are not known or , are unavailable, or the
4child is a youth in care as defined in Section 4d of the
5Children and Family Services Act, a person shall be assigned to
6serve as surrogate parent for the child in matters relating to
7the identification, evaluation, and educational placement of
8the child and the provision of a free appropriate public
9education to the child. Persons shall be assigned as surrogate
10parents by the State Superintendent of Education. The State
11Board of Education shall promulgate rules and regulations
12establishing qualifications of those persons and their
13responsibilities and the procedures to be followed in making
14assignments of persons as surrogate parents. Surrogate parents
15shall not be employees of the school district, an agency
16created by joint agreement under Section 10-22.31, an agency
17involved in the education or care of the student, or the State
18Board of Education. Services of any person assigned as
19surrogate parent shall terminate if the parent becomes
20available unless otherwise requested by the parents. The
21assignment of a person as surrogate parent at no time
22supersedes, terminates, or suspends the parents' legal
23authority relative to the child. Any person participating in
24good faith as surrogate parent on behalf of the child before
25school officials or a hearing officer shall have immunity from
26civil or criminal liability that otherwise might result by



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1reason of that participation, except in cases of willful and
2wanton misconduct.
3    (l) At all stages of the hearing, the hearing officer shall
4require that interpreters be made available by the school
5district for persons who are deaf or for persons whose normally
6spoken language is other than English.
7    (m) If any provision of this Section or its application to
8any person or circumstance is held invalid, the invalidity of
9that provision or application does not affect other provisions
10or applications of the Section that can be given effect without
11the invalid application or provision, and to this end the
12provisions of this Section are severable, unless otherwise
13provided by this Section.
14(Source: P.A. 100-122, eff. 8-18-17; 100-159, eff. 8-18-17;
15revised 1-22-18.)
16    Section 99. Effective date. This Act takes effect upon
17becoming law.