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


Rep. Lindsay Parkhurst

Filed: 2/21/2018





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2    AMENDMENT NO. ______. Amend House Bill 4193 by replacing
3everything after the enacting clause with the following:
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



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1impartial due process hearing system in accordance with this
2Section and may, with the advice and approval of the Advisory
3Council on Education of Children with Disabilities, promulgate
4rules and regulations consistent with this Section to establish
5the rules and procedures for due process hearings.
6    (c) (Blank).
7    (d) (Blank).
8    (e) (Blank).
9    (f) An impartial due process hearing shall be convened upon
10the request of a parent, student if at least 18 years of age or
11emancipated, or a school district. A school district shall make
12a request in writing to the State Board of Education and
13promptly mail a copy of the request to the parents or student
14(if at least 18 years of age or emancipated) at the parent's or
15student's last known address. A request made by the parent or
16student shall be made in writing to the superintendent of the
17school district where the student resides. The superintendent
18shall forward the request to the State Board of Education
19within 5 days after receipt of the request. The request shall
20be filed no more than 2 years following the date the person or
21school district knew or should have known of the event or
22events forming the basis for the request. The request shall, at
23a minimum, contain all of the following:
24        (1) The name of the student, the address of the
25    student's residence, and the name of the school the student
26    is attending.



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1        (2) In the case of homeless children (as defined under
2    the federal McKinney-Vento Homeless Assistance Act (42
3    U.S.C. 11434a(2))), available contact information for the
4    student and the name of the school the student is
5    attending.
6        (3) A description of the nature of the problem relating
7    to the actual or proposed placement, identification,
8    services, or evaluation of the student, including facts
9    relating to the problem.
10        (4) A proposed resolution of the problem to the extent
11    known and available to the party at the time.
12    (f-5) Within 3 days after receipt of the hearing request,
13the State Board of Education shall appoint a due process
14hearing officer using a rotating appointment system and shall
15notify the hearing officer of his or her appointment.
16    For a school district other than a school district located
17in a municipality having a population exceeding 500,000, a
18hearing officer who is a current resident of the school
19district, special education cooperative, or other public
20entity involved in the hearing shall recuse himself or herself.
21A hearing officer who is a former employee of the school
22district, special education cooperative, or other public
23entity involved in the hearing shall immediately disclose the
24former employment to the parties and shall recuse himself or
25herself, unless the parties otherwise agree in writing. A
26hearing officer having a personal or professional interest that



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1may conflict with his or her objectivity in the hearing shall
2disclose the conflict to the parties and shall recuse himself
3or herself unless the parties otherwise agree in writing. For
4purposes of this subsection an assigned hearing officer shall
5be considered to have a conflict of interest if, at any time
6prior to the issuance of his or her written decision, he or she
7knows or should know that he or she may receive remuneration
8from a party to the hearing within 3 years following the
9conclusion of the due process hearing.
10    A party to a due process hearing shall be permitted one
11substitution of hearing officer as a matter of right, in
12accordance with procedures established by the rules adopted by
13the State Board of Education under this Section. The State
14Board of Education shall randomly select and appoint another
15hearing officer within 3 days after receiving notice that the
16appointed hearing officer is ineligible to serve or upon
17receiving a proper request for substitution of hearing officer.
18If a party withdraws its request for a due process hearing
19after a hearing officer has been appointed, that hearing
20officer shall retain jurisdiction over a subsequent hearing
21that involves the same parties and is requested within one year
22from the date of withdrawal of the previous request, unless
23that hearing officer is unavailable.
24    Any party may raise facts that constitute a conflict of
25interest for the hearing officer at any time before or during
26the hearing and may move for recusal.



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1    (g) Impartial due process hearings shall be conducted
2pursuant to this Section and any rules and regulations
3promulgated by the State Board of Education consistent with
4this Section and other governing laws and regulations. The
5hearing shall address only those issues properly raised in the
6hearing request under subsection (f) of this Section or, if
7applicable, in the amended hearing request under subsection
8(g-15) of this Section. The hearing shall be closed to the
9public unless the parents request that the hearing be open to
10the public. The parents involved in the hearing shall have the
11right to have the student who is the subject of the hearing
12present. The hearing shall be held at a time and place which
13are reasonably convenient to the parties involved. Upon the
14request of a party, the hearing officer shall hold the hearing
15at a location neutral to the parties if the hearing officer
16determines that there is no cost for securing the use of the
17neutral location. Once appointed, the impartial due process
18hearing officer shall not communicate with the State Board of
19Education or its employees concerning the hearing, except that,
20where circumstances require, communications for administrative
21purposes that do not deal with substantive or procedural
22matters or issues on the merits are authorized, provided that
23the hearing officer promptly notifies all parties of the
24substance of the communication as a matter of record.
25    (g-5) Unless the school district has previously provided
26prior written notice to the parent or student (if at least 18



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



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1written response. The parent's or student's response may be
2provided in his or her native language, if other than English.
3In the event that illiteracy or another disabling condition
4prevents the parent or student from providing a written
5response, the school district shall assist the parent or
6student in providing the written response.
7    (g-15) Within 15 days after receiving notice of the hearing
8request, the non-requesting party may challenge the
9sufficiency of the request by submitting its challenge in
10writing to the hearing officer. Within 5 days after receiving
11the challenge to the sufficiency of the request, the hearing
12officer shall issue a determination of the challenge in writing
13to the parties. In the event that the hearing officer upholds
14the challenge, the party who requested the hearing may, with
15the consent of the non-requesting party or hearing officer,
16file an amended request. Amendments are permissible for the
17purpose of raising issues beyond those in the initial hearing
18request. In addition, the party who requested the hearing may
19amend the request once as a matter of right by filing the
20amended request within 5 days after filing the initial request.
21An amended request, other than an amended request as a matter
22of right, shall be filed by the date determined by the hearing
23officer, but in no event any later than 5 days prior to the
24date of the hearing. If an amended request, other than an
25amended request as a matter of right, raises issues that were
26not part of the initial request, the applicable timeline for a



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1hearing, including the timeline under subsection (g-20) of this
2Section, shall recommence.
3    (g-20) Within 15 days after receiving a request for a
4hearing from a parent or student (if at least 18 years of age
5or emancipated) or, in the event that the school district
6requests a hearing, within 15 days after initiating the
7request, the school district shall convene a resolution meeting
8with the parent and relevant members of the IEP team who have
9specific knowledge of the facts contained in the request for
10the purpose of resolving the problem that resulted in the
11request. The resolution meeting shall include a representative
12of the school district who has decision-making authority on
13behalf of the school district. Unless the parent is accompanied
14by an attorney at the resolution meeting, the school district
15may not include an attorney representing the school district.
16    The resolution meeting may not be waived unless agreed to
17in writing by the school district and the parent or student (if
18at least 18 years of age or emancipated) or the parent or
19student (if at least 18 years of age or emancipated) and the
20school district agree in writing to utilize mediation in place
21of the resolution meeting. If either party fails to cooperate
22in the scheduling or convening of the resolution meeting, the
23hearing officer may order an extension of the timeline for
24completion of the resolution meeting or, upon the motion of a
25party and at least 7 days after ordering the non-cooperating
26party to cooperate, order the dismissal of the hearing request



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



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1hearing request may waive the resolution process described in
2subsection (g-20) of this Section. Upon signing a written
3agreement to waive the resolution process, the parties shall be
4required to forward the written waiver to the hearing officer
5appointed to the case within 2 business days following the
6signing of the waiver by the parties. The timeline for the
7impartial due process hearing shall commence on the date of the
8signing of the waiver by the parties.
9    (g-35) The timeline for completing the impartial due
10process hearing, as set forth in subsection (h) of this
11Section, shall be initiated upon the occurrence of any one of
12the following events:
13        (1) The unsuccessful completion of the resolution
14    process as described in subsection (g-20) of this Section.
15        (2) The mutual agreement of the parties to waive the
16    resolution process as described in subsection (g-25) or
17    (g-30) of this Section.
18    (g-40) The hearing officer shall convene a prehearing
19conference no later than 14 days before the scheduled date for
20the due process hearing for the general purpose of aiding in
21the fair, orderly, and expeditious conduct of the hearing. The
22hearing officer shall provide the parties with written notice
23of the prehearing conference at least 7 days in advance of the
24conference. The written notice shall require the parties to
25notify the hearing officer by a date certain whether they
26intend to participate in the prehearing conference. The hearing



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1officer may conduct the prehearing conference in person or by
2telephone. Each party shall at the prehearing conference (1)
3disclose whether it is represented by legal counsel or intends
4to retain legal counsel; (2) clarify matters it believes to be
5in dispute in the case and the specific relief being sought;
6(3) disclose whether there are any additional evaluations for
7the student that it intends to introduce into the hearing
8record that have not been previously disclosed to the other
9parties; (4) disclose a list of all documents it intends to
10introduce into the hearing record, including the date and a
11brief description of each document; and (5) disclose the names
12of all witnesses it intends to call to testify at the hearing.
13The hearing officer shall specify the order of presentation to
14be used at the hearing. If the prehearing conference is held by
15telephone, the parties shall transmit the information required
16in this paragraph in such a manner that it is available to all
17parties at the time of the prehearing conference. The State
18Board of Education may, by rule, establish additional
19procedures for the conduct of prehearing conferences.
20    (g-45) The impartial due process hearing officer shall not
21initiate or participate in any ex parte communications with the
22parties, except to arrange the date, time, and location of the
23prehearing conference, due process hearing, or other status
24conferences convened at the discretion of the hearing officer
25and to receive confirmation of whether a party intends to
26participate in the prehearing conference.



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1    (g-50) The parties shall disclose and provide to each other
2any evidence which they intend to submit into the hearing
3record no later than 5 days before the hearing. Any party to a
4hearing has the right to prohibit the introduction of any
5evidence at the hearing that has not been disclosed to that
6party at least 5 days before the hearing. The party requesting
7a hearing shall not be permitted at the hearing to raise issues
8that were not raised in the party's initial or amended request,
9unless otherwise permitted in this Section.
10    (g-55) All reasonable efforts must be made by the parties
11to present their respective cases at the hearing within a
12cumulative period of 7 days. When scheduling hearing dates, the
13hearing officer shall schedule the final day of the hearing no
14more than 30 calendar days after the first day of the hearing
15unless good cause is shown. This subsection (g-55) shall not be
16applied in a manner that (i) denies any party to the hearing a
17fair and reasonable allocation of time and opportunity to
18present its case in its entirety or (ii) deprives any party to
19the hearing of the safeguards accorded under the federal
20Individuals with Disabilities Education Improvement Act of
212004 (Public Law 108-446), regulations promulgated under the
22Individuals with Disabilities Education Improvement Act of
232004, or any other applicable law. The school district shall
24present evidence that the special education needs of the child
25have been appropriately identified and that the special
26education program and related services proposed to meet the



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1needs of the child are adequate, appropriate, and available.
2Any party to the hearing shall have the right to (1) be
3represented by counsel and be accompanied and advised by
4individuals with special knowledge or training with respect to
5the problems of children with disabilities, at the party's own
6expense; (2) present evidence and confront and cross-examine
7witnesses; (3) move for the exclusion of witnesses from the
8hearing until they are called to testify, provided, however,
9that this provision may not be invoked to exclude the
10individual designated by a party to assist that party or its
11representative in the presentation of the case; (4) obtain a
12written or electronic verbatim record of the proceedings within
1330 days of receipt of a written request from the parents by the
14school district; and (5) obtain a written decision, including
15findings of fact and conclusions of law, within 10 calendar
16days, excluding Saturday, Sunday, and any State holiday, after
17the conclusion of the hearing. If at issue, the school district
18shall present evidence that it has properly identified and
19evaluated the nature and severity of the student's suspected or
20identified disability and that, if the student has been or
21should have been determined eligible for special education and
22related services, that it is providing or has offered a free
23appropriate public education to the student in the least
24restrictive environment, consistent with procedural safeguards
25and in accordance with an individualized educational program.
26At any time prior to the conclusion of the hearing, the



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1impartial due process hearing officer shall have the authority
2to require additional information and order independent
3evaluations for the student at the expense of the school
4district. The State Board of Education and the school district
5shall share equally the costs of providing a written or
6electronic verbatim record of the proceedings. Any party may
7request that the due process hearing officer issue a subpoena
8to compel the testimony of witnesses or the production of
9documents relevant to the resolution of the hearing. Whenever a
10person refuses to comply with any subpoena issued under this
11Section, the circuit court of the county in which that hearing
12is pending, on application of the impartial hearing officer or
13the party requesting the issuance of the subpoena, may compel
14compliance through the contempt powers of the court in the same
15manner as if the requirements of a subpoena issued by the court
16had been disobeyed.
17    (h) The impartial hearing officer shall issue a written
18decision, including findings of fact and conclusions of law,
19within 10 calendar days, excluding Saturday, Sunday, and any
20State holiday, after the conclusion of the hearing and send by
21certified mail a copy of the decision to the parents or student
22(if the student requests the hearing), the school district, the
23director of special education, legal representatives of the
24parties, and the State Board of Education. Unless the hearing
25officer has granted specific extensions of time at the request
26of a party, a final decision, including the clarification of a



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1decision requested under this subsection, shall be reached and
2mailed to the parties named above not later than 45 days after
3the initiation of the timeline for conducting the hearing, as
4described in subsection (g-35) of this Section. The decision
5shall specify the educational and related services that shall
6be provided to the student in accordance with the student's
7needs and the timeline for which the school district shall
8submit evidence to the State Board of Education to demonstrate
9compliance with the hearing officer's decision in the event
10that the decision orders the school district to undertake
11corrective action. The hearing officer shall retain
12jurisdiction for the sole purpose of considering a request for
13clarification of the final decision submitted in writing by a
14party to the impartial hearing officer within 5 days after
15receipt of the decision. A copy of the request for
16clarification shall specify the portions of the decision for
17which clarification is sought and shall be mailed to all
18parties of record and to the State Board of Education. The
19request shall operate to stay implementation of those portions
20of the decision for which clarification is sought, pending
21action on the request by the hearing officer, unless the
22parties otherwise agree. The hearing officer shall issue a
23clarification of the specified portion of the decision or issue
24a partial or full denial of the request in writing within 10
25days of receipt of the request and mail copies to all parties
26to whom the decision was mailed. This subsection does not



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1permit a party to request, or authorize a hearing officer to
2entertain, reconsideration of the decision itself. The statute
3of limitations for seeking review of the decision shall be
4tolled from the date the request is submitted until the date
5the hearing officer acts upon the request. The hearing
6officer's decision shall be binding upon the school district
7and the parents unless a civil action is commenced.
8    (i) Any party to an impartial due process hearing aggrieved
9by the final written decision of the impartial due process
10hearing officer shall have the right to commence a civil action
11with respect to the issues presented in the impartial due
12process hearing. That civil action shall be brought in any
13court of competent jurisdiction within 120 days after a copy of
14the decision of the impartial due process hearing officer is
15mailed to the party as provided in subsection (h). The civil
16action authorized by this subsection shall not be exclusive of
17any rights or causes of action otherwise available. The
18commencement of a civil action under this subsection shall
19operate as a supersedeas. In any action brought under this
20subsection the Court shall receive the records of the impartial
21due process hearing, shall hear additional evidence at the
22request of a party, and, basing its decision on the
23preponderance of the evidence, shall grant such relief as the
24court determines is appropriate. In any instance where a school
25district willfully disregards applicable regulations or
26statutes regarding a child covered by this Article, and which



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1disregard has been detrimental to the child, the school
2district shall be liable for any reasonable attorney's fees
3incurred by the parent in connection with proceedings under
4this Section.
5    (j) During the pendency of any administrative or judicial
6proceeding conducted pursuant to this Section, including
7mediation (if the school district or other public entity
8voluntarily agrees to participate in mediation), unless the
9school district and the parents or student (if at least 18
10years of age or emancipated) otherwise agree, the student shall
11remain in his or her present educational placement and continue
12in his or her present eligibility status and special education
13and related services, if any. If mediation fails to resolve the
14dispute between the parties, or if the parties do not agree to
15use mediation, the parent (or student if 18 years of age or
16older or emancipated) shall have 10 days after the mediation
17concludes, or after a party declines to use mediation, to file
18a request for a due process hearing in order to continue to
19invoke the "stay-put" provisions of this subsection (j). If
20applying for initial admission to the school district, the
21student shall, with the consent of the parents (if the student
22is not at least 18 years of age or emancipated), be placed in
23the school district program until all such proceedings have
24been completed. The costs for any special education and related
25services or placement incurred following 60 school days after
26the initial request for evaluation shall be borne by the school



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1district if the services or placement is in accordance with the
2final determination as to the special education and related
3services or placement that must be provided to the child,
4provided that during that 60-day 60 day period there have been
5no delays caused by the child's parent. The requirements and
6procedures of this subsection (j) shall be included in the
7uniform notices developed by the State Superintendent under
8subsection (g) of Section 14-8.02 of this Code.
9    (k) Whenever the parents of a child of the type described
10in Section 14-1.02 are not known or , are unavailable, or the
11child is a youth in care as defined in Section 4d of the
12Children and Family Services Act, a person shall be assigned to
13serve as surrogate parent for the child in matters relating to
14the identification, evaluation, and educational placement of
15the child and the provision of a free appropriate public
16education to the child. Persons shall be assigned as surrogate
17parents by the State Superintendent of Education. The State
18Board of Education shall promulgate rules and regulations
19establishing qualifications of those persons and their
20responsibilities and the procedures to be followed in making
21assignments of persons as surrogate parents. Surrogate parents
22shall not be employees of the school district, an agency
23created by joint agreement under Section 10-22.31, an agency
24involved in the education or care of the student, or the State
25Board of Education. Services of any person assigned as
26surrogate parent shall terminate if the parent becomes



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1available unless otherwise requested by the parents. The
2assignment of a person as surrogate parent at no time
3supersedes, terminates, or suspends the parents' legal
4authority relative to the child. Any person participating in
5good faith as surrogate parent on behalf of the child before
6school officials or a hearing officer shall have immunity from
7civil or criminal liability that otherwise might result by
8reason of that participation, except in cases of willful and
9wanton misconduct.
10    (l) At all stages of the hearing, the hearing officer shall
11require that interpreters be made available by the school
12district for persons who are deaf or for persons whose normally
13spoken language is other than English.
14    (m) If any provision of this Section or its application to
15any person or circumstance is held invalid, the invalidity of
16that provision or application does not affect other provisions
17or applications of the Section that can be given effect without
18the invalid application or provision, and to this end the
19provisions of this Section are severable, unless otherwise
20provided by this Section.
21(Source: P.A. 100-122, eff. 8-18-17; 100-159, eff. 8-18-17;
22revised 1-22-18.)
23    Section 99. Effective date. This Act takes effect upon
24becoming law.".