|
|||||||||||||||||||||||||
|
|||||||||||||||||||||||||
| |||||||||||||||||||||||||
| |||||||||||||||||||||||||
| |||||||||||||||||||||||||
1 | AN ACT concerning education.
| ||||||||||||||||||||||||
2 | Be it enacted by the People of the State of Illinois,
| ||||||||||||||||||||||||
3 | represented in the General Assembly:
| ||||||||||||||||||||||||
4 | Section 5. The School Code is amended by changing Section | ||||||||||||||||||||||||
5 | 14-8.02a as follows:
| ||||||||||||||||||||||||
6 | (105 ILCS 5/14-8.02a)
| ||||||||||||||||||||||||
7 | Sec. 14-8.02a. Impartial due process hearing; civil | ||||||||||||||||||||||||
8 | action.
| ||||||||||||||||||||||||
9 | (a) This Section (rather than the impartial due process | ||||||||||||||||||||||||
10 | procedures of
subsections (h) through (o) of
Section 14-8.02, | ||||||||||||||||||||||||
11 | which shall continue to apply only to those impartial due
| ||||||||||||||||||||||||
12 | process hearings that are requested under this Article before | ||||||||||||||||||||||||
13 | July 1, 1997)
shall apply to all impartial due process hearings | ||||||||||||||||||||||||
14 | requested on or after July
1, 1997.
| ||||||||||||||||||||||||
15 | (b) The State Board of Education shall establish an | ||||||||||||||||||||||||
16 | impartial due process
hearing system, including a corps of | ||||||||||||||||||||||||
17 | hearing officers, in accordance with this
Section and shall, | ||||||||||||||||||||||||
18 | with the advice and approval of the Advisory Council on
| ||||||||||||||||||||||||
19 | Education of Children with Disabilities, promulgate rules and | ||||||||||||||||||||||||
20 | regulations
consistent with this Section to establish the | ||||||||||||||||||||||||
21 | qualifications of hearing
officers and the rules and procedures | ||||||||||||||||||||||||
22 | for due process hearings. The State
Board of Education shall | ||||||||||||||||||||||||
23 | recruit candidates for due process hearing officers
who meet | ||||||||||||||||||||||||
24 | the criteria set forth in this Section. Candidates shall be | ||||||||||||||||||||||||
25 | screened
by a 7-member Screening Committee consisting of the | ||||||||||||||||||||||||
26 | following: the Attorney
General, or his or her designee; the | ||||||||||||||||||||||||
27 | State Superintendent
of Education, or his or her designee; 3 | ||||||||||||||||||||||||
28 | members appointed by the State
Superintendent of Education, one | ||||||||||||||||||||||||
29 | of whom shall be a parent of a student
eligible for special | ||||||||||||||||||||||||
30 | education, another of whom shall be a director of special
| ||||||||||||||||||||||||
31 | education for an Illinois school district or special education | ||||||||||||||||||||||||
32 | joint agreement,
and the other of whom shall be an adult with a |
| |||||||
| |||||||
1 | disability; and 2 members
appointed by the Attorney General, | ||||||
2 | one of whom shall be a parent of a student
eligible for special | ||||||
3 | education and the other of whom shall be an experienced
special | ||||||
4 | education hearing officer who is not a candidate for | ||||||
5 | appointment under
this Section. The members of the Screening | ||||||
6 | Committee shall be appointed no
later than 60 days following | ||||||
7 | the effective date of this amendatory Act of 1996.
The | ||||||
8 | chairperson of the Advisory Council on Education of Children | ||||||
9 | with
Disabilities or his or her designee shall serve on the | ||||||
10 | Screening Committee as
an ex-officio non-voting member. Three | ||||||
11 | members of the Screening Committee
shall be appointed for | ||||||
12 | initial terms of 2 years, and 4 members shall be
appointed for | ||||||
13 | initial terms of 3 years, by using a lottery system. Subsequent
| ||||||
14 | appointments and reappointments shall be for terms for 3 years. | ||||||
15 | The Screening
Committee shall elect a chairperson from among | ||||||
16 | its voting members. Members of
the Screening Committee shall | ||||||
17 | serve without compensation but shall be
reimbursed by the State | ||||||
18 | Board of Education for their expenses. The
Screening Committee | ||||||
19 | shall review applications and supporting information,
| ||||||
20 | interview candidates, and recommend applicants to the Advisory | ||||||
21 | Council on
Education of Children with Disabilities based upon | ||||||
22 | objective criteria it
develops and makes available to the | ||||||
23 | public. The number of candidates
recommended shall equal 150% | ||||||
24 | of the number deemed necessary by the State Board
of Education.
| ||||||
25 | (c) The application process shall require each applicant to | ||||||
26 | provide a
comprehensive disclosure of his or her professional | ||||||
27 | background and work
experience. Applicants must hold at least a | ||||||
28 | masters level degree, a juris
doctor degree, or a bachelors | ||||||
29 | degree with relevant experience. Current
employees of the State | ||||||
30 | Board of Education, local school districts, special
education | ||||||
31 | cooperatives, regional service areas or centers, regional | ||||||
32 | educational
cooperatives, state-operated elementary and | ||||||
33 | secondary schools, or private
providers of special education | ||||||
34 | facilities or programs shall be disqualified
from serving as | ||||||
35 | impartial due process hearing officers. Nothing in this
Section | ||||||
36 | shall be construed to prohibit retired school personnel and |
| |||||||
| |||||||
1 | part-time
contractual school personnel who serve in a | ||||||
2 | consulting capacity from serving as
hearing officers. | ||||||
3 | Applications by individuals on the State Board of
Education's | ||||||
4 | list of eligible Level I due process hearing officers or Level | ||||||
5 | II
review officers when the initial recruitment of due process | ||||||
6 | hearing officers is
conducted under this Section shall be | ||||||
7 | considered if they meet the
qualifications under this | ||||||
8 | subsection.
| ||||||
9 | (d) The State Board of Education shall, through a | ||||||
10 | competitive application
process, enter into a contract with an | ||||||
11 | outside entity to establish and conduct
mandatory training | ||||||
12 | programs for impartial due process hearing officers and an
| ||||||
13 | annual evaluation of each impartial due process hearing officer | ||||||
14 | that shall
include a written evaluation report. The invitation | ||||||
15 | for applications shall set
forth minimum qualifications for | ||||||
16 | eligible applicants. Each contract under this
subsection may be | ||||||
17 | renewed on an annual basis subject to appropriations. The
State | ||||||
18 | Board of Education shall conduct a
new competitive application | ||||||
19 | process at least once every 3 years after the
initial contract | ||||||
20 | is granted. The Screening Committee established pursuant to
| ||||||
21 | subsection (b) of this Section shall review the training | ||||||
22 | proposals and
forward them, with recommendations in rank order, | ||||||
23 | to the State Board of
Education. All impartial hearing
officer | ||||||
24 | candidates recommended to the Advisory Council on Education of | ||||||
25 | Children
with Disabilities shall successfully complete initial | ||||||
26 | and all follow-up
trainings, as established by the contract | ||||||
27 | between the State Board of Education
and the training entity, | ||||||
28 | in order to be eligible to serve as an impartial due
process | ||||||
29 | hearing officer. The training curriculum shall include, at a | ||||||
30 | minimum,
instruction in federal and State law, rules, and | ||||||
31 | regulations, federal
regulatory interpretations and court | ||||||
32 | decisions regarding special education and
relevant general | ||||||
33 | education issues, diagnostic procedures, information about
| ||||||
34 | disabilities, and techniques for conducting effective and | ||||||
35 | impartial hearings,
including order of presentation.
The | ||||||
36 | training shall be conducted in an unbiased manner by education |
| |||||||
| |||||||
1 | and legal
experts, including qualified individuals from | ||||||
2 | outside the public education
system. Upon the completion of | ||||||
3 | initial impartial due process hearing officer
training, the | ||||||
4 | Advisory Council on Education of Children with Disabilities,
| ||||||
5 | applying objective selection criteria it has developed and made | ||||||
6 | available to
the public, shall go into executive session and | ||||||
7 | select the number of active
impartial due process hearing | ||||||
8 | officers deemed necessary by
the State Board of Education from | ||||||
9 | those candidates who have successfully
completed the initial | ||||||
10 | training. Fifty percent of the impartial due process
hearing | ||||||
11 | officers appointed shall serve initial terms of 2 years, and | ||||||
12 | the
remaining 50% shall serve initial terms of one year, such | ||||||
13 | terms to be
determined by using a lottery system. After the | ||||||
14 | initial term all
reappointments shall be for a term of 2 years. | ||||||
15 | The Screening Committee, based
on its objective selection | ||||||
16 | criteria and the annual evaluation reports prepared
by the | ||||||
17 | training entity, shall recommend whether the hearing officers | ||||||
18 | whose
terms are expiring should be reappointed and shall | ||||||
19 | transmit its recommendations
to the State Board of Education.
| ||||||
20 | If, at any time, the
State Board of Education, with the advice | ||||||
21 | of the Advisory Council on Education
of Children with | ||||||
22 | Disabilities, determines that additional hearing officers are
| ||||||
23 | needed, the hearing officer selection process described in this | ||||||
24 | Section shall
be reopened to select the number of additional | ||||||
25 | hearing officers deemed
necessary by the State Board of | ||||||
26 | Education.
| ||||||
27 | Impartial due process hearing officers shall receive a base | ||||||
28 | annual stipend
and per diem allowance for each hearing at a | ||||||
29 | rate established by the State
Board of Education.
| ||||||
30 | The State Board of Education shall provide impartial due | ||||||
31 | process hearing
officers with access to relevant court | ||||||
32 | decisions, impartial hearing officer
decisions with | ||||||
33 | child-specific identifying
information deleted, statutory and | ||||||
34 | regulatory changes, and federal regulatory
interpretations. | ||||||
35 | The State Board of Education shall index and maintain a
| ||||||
36 | reporting system of impartial due process hearing decisions and |
| |||||||
| |||||||
1 | shall make such
decisions available for review by the public | ||||||
2 | after deleting child-specific
identifying information.
| ||||||
3 | (e) An impartial due process hearing officer shall be | ||||||
4 | terminated by the
State Board of Education for just cause if, | ||||||
5 | after written notice is provided,
appropriate timely | ||||||
6 | corrective action is not taken. For purposes of this
subsection | ||||||
7 | just cause shall be (1) failure or refusal to accept assigned | ||||||
8 | cases
without good cause; (2) failure or refusal to fulfill | ||||||
9 | duties as a hearing
officer in a timely manner; (3) consistent | ||||||
10 | disregard for applicable laws and
regulations in the conduct of | ||||||
11 | hearings; (4) consistent failure to conduct
himself or herself | ||||||
12 | in a patient, dignified, and courteous manner to parties,
| ||||||
13 | witnesses, counsel, and other participants in hearings; (5) | ||||||
14 | failure to accord
parties or their representatives a full and | ||||||
15 | fair opportunity to be heard in
matters coming before him or | ||||||
16 | her; (6) violating applicable laws regarding
privacy and | ||||||
17 | confidentiality of records or information; (7) manifesting, by
| ||||||
18 | words or conduct, bias or prejudice based upon race, sex, | ||||||
19 | religion, disability,
or national origin; (8) failure to recuse | ||||||
20 | himself or
herself from a hearing in which he or she has a | ||||||
21 | personal, professional, or
financial conflict of interest | ||||||
22 | which he or she knew or should have known
existed at any time | ||||||
23 | prior to or during the hearing; (9) conviction in any
| ||||||
24 | jurisdiction of any felony or of a misdemeanor involving moral | ||||||
25 | turpitude; and
(10) falsification of a material fact on his or | ||||||
26 | her application to serve as a
due process hearing officer. In | ||||||
27 | addition, an impartial hearing officer who, as
a result of | ||||||
28 | events occurring after appointment, no longer meets the minimum
| ||||||
29 | requirements set forth in this Section, shall be disqualified | ||||||
30 | to complete the
balance of his or her contract term.
| ||||||
31 | The State Board of Education shall monitor, review, and | ||||||
32 | evaluate the
impartial due process hearing system on a regular | ||||||
33 | basis by a process that
includes a review of written decisions | ||||||
34 | and evaluations by participants in
impartial due process | ||||||
35 | hearings and their representatives. The State Board of
| ||||||
36 | Education shall prepare an annual written report no later than |
| |||||||
| |||||||
1 | July 1 of each
year, beginning in 1998, evaluating the | ||||||
2 | impartial due process hearing system.
The reports shall be | ||||||
3 | submitted to the members of the State Board of Education,
the | ||||||
4 | State Superintendent of Education, the Advisory Council on | ||||||
5 | Education of
Children with Disabilities, and the Screening | ||||||
6 | Committee and shall be made
available to the public.
| ||||||
7 | The training entity under subsection (d) shall conduct | ||||||
8 | annual evaluations of
each hearing officer and shall prepare | ||||||
9 | written evaluation reports to be
provided to the Screening | ||||||
10 | Committee for its consideration in the reappointment
process. | ||||||
11 | The evaluation
process shall include a review of written | ||||||
12 | decisions and evaluations by
participants in impartial due | ||||||
13 | process hearings and their representatives. Each
hearing | ||||||
14 | officer shall be provided with a copy of his or her evaluation | ||||||
15 | report
and shall have an opportunity to review the report with | ||||||
16 | the training entity and
submit written comments.
| ||||||
17 | (f) An impartial due process hearing shall be convened upon | ||||||
18 | the request of a
parent or guardian, student if at least 18 | ||||||
19 | years of age or emancipated, or a
school district. A school | ||||||
20 | district shall
make a request in writing to the State Board of | ||||||
21 | Education and promptly mail a
copy of the request to the | ||||||
22 | parents or guardian of the student at their last
known address. | ||||||
23 | A request made by the parent, guardian, or student shall be
| ||||||
24 | made in writing to the superintendent of the school district in | ||||||
25 | which the
student resides, who shall forward the request
to the | ||||||
26 | State Board of Education within 5 days of receipt of the
| ||||||
27 | request. Within 5 days after receipt of the request the State | ||||||
28 | Board of
Education shall appoint a due process hearing officer | ||||||
29 | using a rotating
appointment system and shall notify the | ||||||
30 | hearing officer of his or her
appointment. No person who is an | ||||||
31 | employee of a school district that is
involved in the education | ||||||
32 | or care of the student shall conduct the hearing. A
hearing | ||||||
33 | officer having a personal or professional interest that would | ||||||
34 | conflict
with his or her objectivity in the hearing shall so | ||||||
35 | notify the State Board of
Education and shall be replaced by | ||||||
36 | the next scheduled impartial due process
hearing officer under |
| |||||||
| |||||||
1 | the rotation system. For purposes of this subsection
an | ||||||
2 | assigned hearing officer shall be considered to have a conflict | ||||||
3 | of interest
if, at any time prior to the issuance of his or her | ||||||
4 | written decision, he or she
knows or should know that he or she | ||||||
5 | may receive remuneration from a party
to the hearing within 3 | ||||||
6 | years following the conclusion of the due process
hearing. A | ||||||
7 | party to a due process hearing shall be permitted one | ||||||
8 | substitution
of hearing officer as a matter of right, in | ||||||
9 | accordance with procedures
established by the rules adopted by | ||||||
10 | the State Board of Education under this
Section. The State | ||||||
11 | Board of Education shall randomly select and appoint
another | ||||||
12 | hearing officer within 5 days after receiving notice that the | ||||||
13 | appointed
hearing officer is ineligible to serve or upon | ||||||
14 | receiving a proper request for
substitution of hearing officer. | ||||||
15 | If a party withdraws its request for a due
process hearing | ||||||
16 | after a hearing officer has been appointed, that hearing
| ||||||
17 | officer shall retain jurisdiction over a subsequent hearing | ||||||
18 | that involves the
same parties and is requested within one year | ||||||
19 | from the date of withdrawal of
the previous request, unless | ||||||
20 | that hearing
officer is unavailable.
| ||||||
21 | A former employee or current resident of the school | ||||||
22 | district, special
education cooperative, or other public | ||||||
23 | entity involved in the due process
hearing shall recuse himself | ||||||
24 | or herself. A hearing officer shall disclose any
actual or | ||||||
25 | potential conflicts of
interests to the parties upon learning | ||||||
26 | of those conflicts. Any party may raise
facts that constitute a | ||||||
27 | conflict of interest for the hearing officer at any
time before | ||||||
28 | or during the hearing and may move for recusal.
| ||||||
29 | For purposes of this Section, "days" shall be computed in | ||||||
30 | accordance with
Section 1.11 of the Statute on Statutes.
| ||||||
31 | (g) Impartial due process hearings shall be conducted | ||||||
32 | pursuant to this
Section and rules and regulations promulgated | ||||||
33 | by the State Board of Education
consistent with this Section | ||||||
34 | and other governing laws and regulations. The
hearing shall be | ||||||
35 | closed to the public unless the parents or guardian request
| ||||||
36 | that the hearing be open to the public. The parents or guardian |
| |||||||
| |||||||
1 | involved in
the hearing shall have the right to have the | ||||||
2 | student who is the subject of the
hearing present. The hearing | ||||||
3 | shall be held at a time and place which are
reasonably | ||||||
4 | convenient to the parties involved. Upon the request of
a | ||||||
5 | party, the hearing officer shall hold the hearing at a location | ||||||
6 | neutral to
the parties if the hearing officer determines that | ||||||
7 | there is no cost for
securing the use of the neutral location. | ||||||
8 | Once appointed, the impartial due
process hearing officer shall | ||||||
9 | not communicate with the State Board of Education
or its | ||||||
10 | employees concerning the
hearing, except that, where | ||||||
11 | circumstances require, communications for
administrative | ||||||
12 | purposes that do not deal with substantive or procedural | ||||||
13 | matters
or issues on the merits are authorized, provided that | ||||||
14 | the hearing officer
promptly notifies all parties of the | ||||||
15 | substance of the communication as a matter
of record.
| ||||||
16 | The hearing officer shall convene a prehearing conference | ||||||
17 | no later than 14
days before the scheduled date for the due | ||||||
18 | process hearing for the general
purpose of aiding in the fair, | ||||||
19 | orderly, and expeditious conduct of the hearing.
The hearing | ||||||
20 | officer shall provide the parties with written notice of the
| ||||||
21 | prehearing conference at least 10 days in advance of the | ||||||
22 | conference. The
written notice shall require the parties to | ||||||
23 | notify the hearing officer by a
date certain whether they | ||||||
24 | intend to participate in the prehearing conference.
The hearing | ||||||
25 | officer may conduct the prehearing conference in person or by
| ||||||
26 | telephone. Each party shall disclose at the prehearing | ||||||
27 | conference (1) whether
it is represented by legal counsel or | ||||||
28 | intends to retain legal counsel; (2)
the matters it believes to | ||||||
29 | be in dispute in the case and the specific relief
being sought; | ||||||
30 | (3) whether there are any additional evaluations for the | ||||||
31 | student
that it intends to
introduce into the
hearing record | ||||||
32 | that have not been previously disclosed to the other parties;
| ||||||
33 | (4) a list of all documents it intends to introduce into the | ||||||
34 | hearing record,
including the date and a brief description of | ||||||
35 | each document; and (5) the names
of all witnesses it intends to | ||||||
36 | call to testify at the hearing. The hearing
officer shall |
| |||||||
| |||||||
1 | specify the order of presentation to be used at the hearing. If
| ||||||
2 | the
prehearing conference is held by telephone, the parties | ||||||
3 | shall transmit the
information required in this paragraph in | ||||||
4 | such a manner that it is available to
all parties at the time | ||||||
5 | of the prehearing conference. The State Board of
Education | ||||||
6 | shall, by
rule, establish additional procedures for the conduct | ||||||
7 | of prehearing
conferences.
The
impartial due process hearing | ||||||
8 | officer shall not initiate or participate in any
ex parte | ||||||
9 | communications with the parties, except to arrange the date, | ||||||
10 | time,
and location of the prehearing conference and due process | ||||||
11 | hearing and to
receive confirmation of whether a party intends | ||||||
12 | to participate in the
prehearing conference. The parties shall | ||||||
13 | disclose and provide to each other
any evidence which they | ||||||
14 | intend to submit into the hearing record no later than
5 days | ||||||
15 | before the hearing. Any party to a hearing has the right to | ||||||
16 | prohibit
the introduction of any evidence at the hearing that | ||||||
17 | has not been disclosed to
that party at least 5 days before the | ||||||
18 | hearing.
| ||||||
19 | The school district shall present evidence that the special | ||||||
20 | education needs
of the child have been appropriately identified | ||||||
21 | and that the special education
program and related services | ||||||
22 | proposed to meet the needs of the child are
adequate, | ||||||
23 | appropriate, and available. Any party to the hearing shall have | ||||||
24 | the
right to (1) be represented
by counsel and be accompanied | ||||||
25 | and advised by individuals with special knowledge
or training | ||||||
26 | with respect to the problems of children with disabilities, at | ||||||
27 | the
party's own expense; (2) present evidence and confront and | ||||||
28 | cross-examine
witnesses; (3) move for the exclusion of | ||||||
29 | witnesses from the hearing until they
are called to testify, | ||||||
30 | provided, however, that this provision may not be
invoked to | ||||||
31 | exclude the individual designated by a party to assist that | ||||||
32 | party or
its representative in the presentation of the case; | ||||||
33 | (4) obtain a written or
electronic verbatim record of
the | ||||||
34 | proceedings within 30 days of receipt of a written request from | ||||||
35 | the parents
by the school district; and (5) obtain a written | ||||||
36 | decision, including findings
of fact and conclusions of law, |
| |||||||
| |||||||
1 | within 10 days after the conclusion of the
hearing.
If at | ||||||
2 | issue, the school district shall present evidence that it has
| ||||||
3 | properly identified and evaluated the nature and
severity of | ||||||
4 | the student's suspected or identified disability and that, if | ||||||
5 | the
student has been or should have been determined eligible | ||||||
6 | for special education
and related services, that it is | ||||||
7 | providing or has offered a free appropriate
public education to | ||||||
8 | the student in the least restrictive environment,
consistent | ||||||
9 | with
procedural safeguards and in accordance with an | ||||||
10 | individualized educational
program.
At any time prior to the | ||||||
11 | conclusion of the hearing, the impartial due
process hearing | ||||||
12 | officer shall have the authority to require additional
| ||||||
13 | information and order independent evaluations for the
student | ||||||
14 | at the expense of the school district. The State Board of | ||||||
15 | Education
and the school district shall share equally the costs | ||||||
16 | of providing a written or
electronic verbatim record of the | ||||||
17 | proceedings. Any party may request that the
due process hearing | ||||||
18 | officer issue a subpoena to compel the testimony of
witnesses | ||||||
19 | or the production of documents relevant to the
resolution of | ||||||
20 | the hearing. Whenever a person refuses to comply with any
| ||||||
21 | subpoena issued under this Section, the circuit court of the | ||||||
22 | county in which
that hearing is pending, on application of the | ||||||
23 | impartial hearing officer or the
party requesting the issuance | ||||||
24 | of the subpoena, may compel compliance through
the contempt | ||||||
25 | powers of
the court in the same manner as if the requirements | ||||||
26 | of a subpoena issued by the
court had been disobeyed.
| ||||||
27 | (h) The impartial hearing officer shall issue a written | ||||||
28 | decision, including
findings of fact and conclusions of law, | ||||||
29 | within 10 days after the
conclusion of the hearing and mail a | ||||||
30 | copy of the decision to the parents,
guardian, or student (if | ||||||
31 | the student requests the hearing), the school
district, the | ||||||
32 | director of special education, legal representatives of the
| ||||||
33 | parties, and the State Board of Education. Unless the hearing | ||||||
34 | officer has
granted specific extensions of time at the request | ||||||
35 | of a party, a final
decision, including the clarification of a | ||||||
36 | decision requested under this
subsection, shall be reached and |
| |||||||
| |||||||
1 | mailed to the parties named above not later
than 45 days after | ||||||
2 | the request for hearing is received by the school district,
| ||||||
3 | public agency, or the State Board of Education, whichever is | ||||||
4 | sooner. The
decision shall specify the educational and related | ||||||
5 | services that shall be
provided to the student in accordance | ||||||
6 | with the student's needs.
The hearing officer shall retain | ||||||
7 | jurisdiction for the sole purpose of
considering a request for | ||||||
8 | clarification of the final decision submitted in
writing by a | ||||||
9 | party to the impartial hearing officer within 5 days after | ||||||
10 | receipt
of the decision.
A copy of the request for | ||||||
11 | clarification shall specify the portions of the
decision for | ||||||
12 | which clarification is sought and shall be mailed to all | ||||||
13 | parties
of record and to the State Board of Education. The | ||||||
14 | request shall
operate to stay implementation of those portions | ||||||
15 | of the decision for which
clarification is sought, pending | ||||||
16 | action on the request by the hearing officer,
unless the | ||||||
17 | parties otherwise agree. The hearing officer shall issue a
| ||||||
18 | clarification of the specified portion of the decision or issue | ||||||
19 | a partial or
full denial of the request in writing within 10 | ||||||
20 | days of receipt of the request
and mail copies to all parties | ||||||
21 | to whom the decision was mailed. This
subsection does not | ||||||
22 | permit a party to request, or authorize a hearing officer
to | ||||||
23 | entertain, reconsideration of the decision itself. The statute | ||||||
24 | of
limitations for seeking review of the decision shall be | ||||||
25 | tolled from the date
the request is submitted until the date | ||||||
26 | the hearing officer acts upon the
request. Upon the filing of a | ||||||
27 | civil action pursuant to subsection (i) of this
Section, the | ||||||
28 | hearing officer shall no longer exercise jurisdiction over the
| ||||||
29 | case. The hearing officer's decision shall be binding upon the | ||||||
30 | school district
and the parents or guardian unless a civil | ||||||
31 | action is commenced.
| ||||||
32 | (i) Any party to an impartial due process hearing aggrieved | ||||||
33 | by the final
written decision of the impartial due process | ||||||
34 | hearing officer shall have the
right to commence a civil action | ||||||
35 | with respect to the issues presented in the
impartial due | ||||||
36 | process hearing. That civil action shall be brought in any
|
| |||||||
| |||||||
1 | court of competent jurisdiction within 120 days after a copy of | ||||||
2 | the
decision of the impartial due process hearing officer is | ||||||
3 | mailed to the party as
provided in
subsection (h). The civil | ||||||
4 | action authorized by this subsection shall not be
exclusive of | ||||||
5 | any rights or causes of action otherwise
available. The | ||||||
6 | commencement of a civil action under this subsection shall
| ||||||
7 | operate as a supersedeas. In any action brought under this | ||||||
8 | subsection the
Court shall receive the records of the impartial | ||||||
9 | due process hearing, shall
hear additional evidence at the | ||||||
10 | request of a party, and, basing its decision on
the | ||||||
11 | preponderance of the evidence, shall grant such relief as the | ||||||
12 | court
determines is appropriate. A parent or guardian who is a | ||||||
13 | prevailing party in an impartial due process hearing, including | ||||||
14 | an expedited due process hearing under Section 14-8.02b, or in | ||||||
15 | a civil action under this subsection may recover from an | ||||||
16 | opposing party reasonable attorney's fees and costs, including | ||||||
17 | expert witness fees if the expert's opinion is a significant | ||||||
18 | factor in the parent's or guardian's success. For purposes of | ||||||
19 | this subsection the term "prevailing party" includes a parent | ||||||
20 | or guardian who obtains significant relief in a private | ||||||
21 | settlement of a pending impartial due process hearing or civil | ||||||
22 | action if it is determined that the commencement of proceedings | ||||||
23 | under this subsection was the catalyst for the settlement. An | ||||||
24 | action to recover reasonable attorney's fees and costs may be | ||||||
25 | brought in any court of competent jurisdiction within 30 days | ||||||
26 | after a final impartial due process hearing decision, judgement | ||||||
27 | of the court in a civil action, or the date a settlement | ||||||
28 | agreement is executed.
In any instance where a school district | ||||||
29 | willfully
disregards applicable regulations or statutes | ||||||
30 | regarding a child covered by this
Article, and which disregard | ||||||
31 | has been detrimental to the child, the school
district shall be | ||||||
32 | liable for any reasonable attorney's fees incurred by the
| ||||||
33 | parent or guardian in connection with proceedings under this | ||||||
34 | Section.
| ||||||
35 | (j) During the pendency of any administrative or judicial | ||||||
36 | proceeding
conducted
pursuant to this Section, unless the |
| |||||||
| |||||||
1 | school district and the
parents or guardian of the student | ||||||
2 | otherwise agree, the student shall remain in
his or her present | ||||||
3 | educational placement and continue in his or her present
| ||||||
4 | eligibility status and special education and related services, | ||||||
5 | if any. If the
hearing officer orders a change in the | ||||||
6 | eligibility status, educational
placement, or special | ||||||
7 | education and related services of the student, that
change | ||||||
8 | shall not be implemented until 30 days have elapsed following | ||||||
9 | the date
the hearing officer's
decision is mailed to the | ||||||
10 | parties in order to allow any party aggrieved by the
decision | ||||||
11 | to commence a civil action to stay
implementation of the | ||||||
12 | decision. If applying for initial admission to the
school | ||||||
13 | district, the student shall, with the consent of the parents or
| ||||||
14 | guardian, be placed in the school district program until all | ||||||
15 | such proceedings
have been completed. The costs for any special | ||||||
16 | education and related services
or placement incurred following | ||||||
17 | 60 school days after the initial request for
evaluation shall | ||||||
18 | be borne by the school district if the services or placement
is | ||||||
19 | in accordance with the final determination as to the special | ||||||
20 | education and
related services or placement that must be | ||||||
21 | provided to the child, provided that
during that 60 day period | ||||||
22 | there have been no delays caused by the child's
parent or | ||||||
23 | guardian.
| ||||||
24 | (k) Whenever the parents or guardian of a child of the type | ||||||
25 | described in
Section 14-1.02 are not known, are unavailable, or | ||||||
26 | the child is a ward of the
State, a person shall be assigned to | ||||||
27 | serve as surrogate parent for the child in
matters relating to | ||||||
28 | the identification, evaluation, and educational placement
of | ||||||
29 | the child and the provision of a free appropriate public | ||||||
30 | education to the
child. Persons shall be assigned as surrogate | ||||||
31 | parents by the State
Superintendent of Education. The State | ||||||
32 | Board of Education shall promulgate
rules and regulations | ||||||
33 | establishing qualifications of those persons and their
| ||||||
34 | responsibilities and the procedures to be followed in making | ||||||
35 | assignments of
persons as surrogate parents.
Surrogate parents | ||||||
36 | shall not be employees of the school district, an agency
|
| |||||||
| |||||||
1 | created by joint agreement under Section 10-22.31, an agency | ||||||
2 | involved in the
education or care of the student, or the State | ||||||
3 | Board of Education.
Services of any person assigned as | ||||||
4 | surrogate parent shall terminate if the
parent or guardian | ||||||
5 | becomes available unless otherwise requested by the parents
or | ||||||
6 | guardian. The assignment of a person as surrogate parent at no | ||||||
7 | time
supersedes, terminates, or suspends the parents' or | ||||||
8 | guardians' legal authority
relative to the child. Any person | ||||||
9 | participating in good faith as surrogate
parent on behalf of | ||||||
10 | the child before school officials or a hearing officer
shall | ||||||
11 | have immunity from civil or criminal liability that otherwise | ||||||
12 | might
result by reason of that participation, except in cases | ||||||
13 | of willful and
wanton misconduct.
| ||||||
14 | (l) At all stages of the hearing the hearing officer shall | ||||||
15 | require that
interpreters be made available by the school | ||||||
16 | district for persons who are deaf
or for persons whose normally | ||||||
17 | spoken language is other than English.
| ||||||
18 | (m) If any provision of this Section or its application to | ||||||
19 | any person or
circumstance is held invalid, the invalidity of | ||||||
20 | that provision or application
does not affect other provisions | ||||||
21 | or applications of the Section that can be
given effect without | ||||||
22 | the invalid application or provision, and to this end the
| ||||||
23 | provisions of this Section are severable, unless otherwise | ||||||
24 | provided by this
Section.
| ||||||
25 | (Source: P.A. 89-652, eff. 8-14-96.)
| ||||||
26 | Section 99. Effective date. This Act takes effect upon | ||||||
27 | becoming law.
|