|
Sen. Miguel del Valle
Adopted in Senate on Feb 14, 2006
|
|
09400SB2796sam001 |
|
LRB094 16298 NHT 55535 a |
|
|
1 |
| AMENDMENT TO SENATE BILL 2796
|
2 |
| AMENDMENT NO. ______. Amend Senate Bill 2796 by replacing |
3 |
| everything after the enacting clause with the following:
|
4 |
| "Section 5. The School Code is amended by changing Sections |
5 |
| 14-8.02, 14-8.02a, 14-8.02b, and 14-12.01 and by adding |
6 |
| Sections 14-8.02c and 14-8.02d as follows:
|
7 |
| (105 ILCS 5/14-8.02) (from Ch. 122, par. 14-8.02)
|
8 |
| Sec. 14-8.02. Identification, Evaluation and Placement of |
9 |
| Children.
|
10 |
| (a) The State Board of Education shall make rules under |
11 |
| which local school
boards shall determine the eligibility of |
12 |
| children to receive special
education. Such rules shall ensure |
13 |
| that a free appropriate public
education be available to all |
14 |
| children with disabilities as
defined in
Section 14-1.02. The |
15 |
| State Board of Education shall require local school
districts |
16 |
| to administer non-discriminatory procedures or tests to
|
17 |
| limited English proficiency students coming from homes in which |
18 |
| a language
other than English is used to determine their |
19 |
| eligibility to receive special
education. The placement of low |
20 |
| English proficiency students in special
education programs and |
21 |
| facilities shall be made in accordance with the test
results |
22 |
| reflecting the student's linguistic, cultural and special |
23 |
| education
needs. For purposes of determining the eligibility of |
24 |
| children the State
Board of Education shall include in the |
|
|
|
09400SB2796sam001 |
- 2 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| rules definitions of "case study",
"staff conference", |
2 |
| "individualized educational program", and "qualified
|
3 |
| specialist" appropriate to each category of children with
|
4 |
| disabilities as defined in
this Article. For purposes of |
5 |
| determining the eligibility of children from
homes in which a |
6 |
| language other than English is used, the State Board of
|
7 |
| Education, no later than September 1, 1993, shall include in |
8 |
| the rules
definitions for "qualified bilingual specialists" |
9 |
| and "linguistically and
culturally appropriate individualized |
10 |
| educational programs". For purposes of
In this
Section, as well |
11 |
| as Sections 14-8.02a, 14-8.02b, and 14-8.02c of this Code,
|
12 |
| "parent" means a parent as defined in the federal Individuals |
13 |
| with Disabilities Education Act (20 U.S.C. 1401(19))
includes a |
14 |
| foster parent .
|
15 |
| (b) No child shall be eligible for special education |
16 |
| facilities except
with a carefully completed case study fully |
17 |
| reviewed by professional
personnel in a multidisciplinary |
18 |
| staff conference and only upon the
recommendation of qualified |
19 |
| specialists or a qualified bilingual specialist, if
available. |
20 |
| At the conclusion of the multidisciplinary staff conference, |
21 |
| the
parent or guardian of the child shall be given a copy of |
22 |
| the multidisciplinary
conference summary report and |
23 |
| recommendations, which includes options
considered, and be |
24 |
| informed of their right to obtain an independent educational
|
25 |
| evaluation if they disagree with the evaluation findings |
26 |
| conducted or obtained
by the school district. If the school |
27 |
| district's evaluation is shown to be
inappropriate, the school |
28 |
| district shall reimburse the parent for the cost of
the |
29 |
| independent evaluation. The State Board of Education shall, |
30 |
| with advice
from the State Advisory Council on Education of |
31 |
| Children with
Disabilities on the
inclusi |
32 |
| on of specific independent educational evaluators, prepare a |
33 |
| list of
suggested independent educational evaluators. The |
34 |
| State Board of Education
shall include on the list clinical |
|
|
|
09400SB2796sam001 |
- 3 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| psychologists licensed pursuant to the
Clinical Psychologist |
2 |
| Licensing Act. Such psychologists shall not be paid fees
in |
3 |
| excess of the amount that would be received by a school |
4 |
| psychologist for
performing the same services. The State Board |
5 |
| of Education shall supply school
districts with such list and |
6 |
| make the list available to parents at their
request. School |
7 |
| districts shall make the list available to parents at the time
|
8 |
| they are informed of their right to obtain an independent |
9 |
| educational
evaluation. However, the school district may |
10 |
| initiate an impartial
due process hearing under this Section |
11 |
| within 5 days of any written parent
or guardian request for an |
12 |
| independent educational evaluation to show that
its evaluation |
13 |
| is appropriate. If the final decision is that the evaluation
is |
14 |
| appropriate, the parent still has a right to an independent |
15 |
| educational
evaluation, but not at public expense. An |
16 |
| independent educational
evaluation at public expense must be |
17 |
| completed within 30 days of a parent
or guardian written |
18 |
| request unless the school district initiates an
impartial due |
19 |
| process hearing or the parent or guardian or school district
|
20 |
| offers reasonable grounds to show that such 30 day time period |
21 |
| should be
extended. If the due process hearing decision |
22 |
| indicates that the parent or
guardian is entitled to an |
23 |
| independent educational evaluation, it must be
completed |
24 |
| within 30 days of the decision unless the parent or guardian or
|
25 |
| the school district offers reasonable grounds to show that such |
26 |
| 30 day
period should be extended. If a parent disagrees with |
27 |
| the summary report or
recommendations of the multidisciplinary |
28 |
| conference or the findings of any
educational evaluation which |
29 |
| results therefrom, the school
district shall not proceed with a |
30 |
| placement based upon such evaluation and
the child shall remain |
31 |
| in his or her regular classroom setting.
No child shall be |
32 |
| eligible for admission to a
special class for the educable |
33 |
| mentally disabled or for the
trainable
mentally disabled except |
34 |
| with a psychological evaluation
and
recommendation by a school |
|
|
|
09400SB2796sam001 |
- 4 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| psychologist. Consent shall be obtained from
the parent or |
2 |
| guardian of a child before any evaluation is conducted.
If |
3 |
| consent is not given by the parent or guardian or if the parent |
4 |
| or
guardian disagrees with the findings of the evaluation, then |
5 |
| the school
district may initiate an impartial due process |
6 |
| hearing under this Section.
The school district may evaluate |
7 |
| the child if that is the decision
resulting from the impartial |
8 |
| due process hearing and the decision is not
appealed or if the |
9 |
| decision is affirmed on appeal.
The determination of |
10 |
| eligibility shall be made within 60 school days
from the date |
11 |
| of written parental consent
referral by school authorities for |
12 |
| evaluation by the
district or date of application for |
13 |
| admittance by the parent or guardian
of the child . In those |
14 |
| instances when students are referred for
evaluation with fewer |
15 |
| than 60 pupil attendance days left in the school year,
the |
16 |
| eligibility determination shall be made prior to the first day |
17 |
| of the
following school year. After a child has been determined |
18 |
| to be eligible for a
special education class, such child must |
19 |
| be placed in the appropriate
program pursuant to the |
20 |
| individualized educational program by or no
later than the |
21 |
| beginning of the next school semester. The appropriate
program |
22 |
| pursuant to the individualized educational program of students
|
23 |
| whose native tongue is a language other than English shall |
24 |
| reflect the
special education, cultural and linguistic needs. |
25 |
| No later than September
1, 1993, the State Board of Education |
26 |
| shall establish standards for the
development, implementation |
27 |
| and monitoring of appropriate bilingual special
individualized |
28 |
| educational programs. The State Board of Education shall
|
29 |
| further incorporate appropriate monitoring procedures to |
30 |
| verify implementation
of these standards. The district shall |
31 |
| indicate to the parent or guardian and
the State Board of |
32 |
| Education the nature of the services the child will receive
for |
33 |
| the regular school term while waiting placement in the |
34 |
| appropriate special
education class.
|
|
|
|
09400SB2796sam001 |
- 5 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| If the child is deaf, hard of hearing, blind, or visually |
2 |
| impaired and
he or she might be eligible to receive services |
3 |
| from the Illinois School for
the Deaf or the Illinois School |
4 |
| for the Visually Impaired, the school
district shall notify the |
5 |
| parents or guardian , in writing, of the existence of
these |
6 |
| schools
and the services
they provide and shall make a |
7 |
| reasonable effort to inform the parents or guardian of the |
8 |
| existence of other, local schools that provide similar services |
9 |
| and the services that these other schools provide. This |
10 |
| notification
shall
include without limitation information on |
11 |
| school services, school
admissions criteria, and school |
12 |
| contact information.
|
13 |
| If the student may be eligible to participate in the |
14 |
| Home-Based Support
Services Program for Mentally Disabled |
15 |
| Adults authorized under the
Developmental Disability and |
16 |
| Mental Disability Services Act upon becoming an
adult, the |
17 |
| student's individualized education program shall include plans |
18 |
| for
(i) determining the student's eligibility for those |
19 |
| home-based services, (ii)
enrolling the student in the program |
20 |
| of home-based services, and (iii)
developing a plan for the |
21 |
| student's most effective use of the home-based
services after |
22 |
| the student becomes an adult and no longer receives special
|
23 |
| educational services under this Article. The plans developed |
24 |
| under this
paragraph shall include specific actions to be taken |
25 |
| by specified individuals,
agencies, or officials.
|
26 |
| (c) In the development of the individualized education |
27 |
| program for a
student who is functionally blind, it shall be |
28 |
| presumed that proficiency in
Braille reading and writing is |
29 |
| essential for the student's satisfactory
educational progress. |
30 |
| For purposes of this subsection, the State Board of
Education |
31 |
| shall determine the criteria for a student to be classified as
|
32 |
| functionally blind. Students who are not currently identified |
33 |
| as
functionally blind who are also entitled to Braille |
34 |
| instruction include:
(i) those whose vision loss is so severe |
|
|
|
09400SB2796sam001 |
- 6 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| that they are unable to read and
write at a level comparable to |
2 |
| their peers solely through the use of
vision, and (ii) those |
3 |
| who show evidence of progressive vision loss that
may result in |
4 |
| functional blindness. Each student who is functionally blind
|
5 |
| shall be entitled to Braille reading and writing instruction |
6 |
| that is
sufficient to enable the student to communicate with |
7 |
| the same level of
proficiency as other students of comparable |
8 |
| ability. Instruction should be
provided to the extent that the |
9 |
| student is physically and cognitively able
to use Braille. |
10 |
| Braille instruction may be used in combination with other
|
11 |
| special education services appropriate to the student's |
12 |
| educational needs.
The assessment of each student who is |
13 |
| functionally blind for the purpose of
developing the student's |
14 |
| individualized education program shall include
documentation |
15 |
| of the student's strengths and weaknesses in Braille skills.
|
16 |
| Each person assisting in the development of the individualized |
17 |
| education
program for a student who is functionally blind shall |
18 |
| receive information
describing the benefits of Braille |
19 |
| instruction. The individualized
education program for each |
20 |
| student who is functionally blind shall
specify the appropriate |
21 |
| learning medium or media based on the assessment
report.
|
22 |
| (d) To the maximum extent appropriate, the placement shall |
23 |
| provide the
child with the opportunity to be educated with |
24 |
| children who are not
disabled; provided that children with
|
25 |
| disabilities who are recommended to be
placed into regular |
26 |
| education classrooms are provided with supplementary
services |
27 |
| to assist the children with disabilities to benefit
from the |
28 |
| regular
classroom instruction and are included on the teacher's |
29 |
| regular education class
register. Subject to the limitation of |
30 |
| the preceding sentence, placement in
special classes, separate |
31 |
| schools or other removal of the disabled child
from the regular |
32 |
| educational environment shall occur only when the nature of
the |
33 |
| severity of the disability is such that education in the
|
34 |
| regular classes with
the use of supplementary aids and services |
|
|
|
09400SB2796sam001 |
- 7 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| cannot be achieved satisfactorily.
The placement of limited |
2 |
| English proficiency students with disabilities shall
be in |
3 |
| non-restrictive environments which provide for integration |
4 |
| with
non-disabled peers in bilingual classrooms. Annually, |
5 |
| each January
By January 1993 and annually
thereafter , school |
6 |
| districts shall report data on students from non-English
|
7 |
| speaking backgrounds receiving special education and related |
8 |
| services in
public and private facilities as prescribed in |
9 |
| Section 2-3.30. If there
is a disagreement between parties |
10 |
| involved regarding the special education
placement of any |
11 |
| child, either in-state or out-of-state, the placement is
|
12 |
| subject to impartial due process procedures described in |
13 |
| Article 10 of the
Rules and Regulations to Govern the |
14 |
| Administration and Operation of Special
Education.
|
15 |
| (e) No child who comes from a home in which a language |
16 |
| other than English
is the principal language used may be |
17 |
| assigned to any class or program
under this Article until he |
18 |
| has been given, in the principal language
used by the child and |
19 |
| used in his home, tests reasonably related to his
cultural |
20 |
| environment. All testing and evaluation materials and |
21 |
| procedures
utilized for evaluation and placement shall not be |
22 |
| linguistically, racially or
culturally discriminatory.
|
23 |
| (f) Nothing in this Article shall be construed to require |
24 |
| any child to
undergo any physical examination or medical |
25 |
| treatment whose parents or
guardian object thereto on the |
26 |
| grounds that such examination or
treatment conflicts with his |
27 |
| religious beliefs.
|
28 |
| (g) School boards or their designee shall provide to the |
29 |
| parents or
guardian of a child prior written notice of any |
30 |
| decision (a) proposing
to initiate or change, or (b) refusing |
31 |
| to initiate or change, the
identification, evaluation, or |
32 |
| educational placement of the child or the
provision of a free |
33 |
| appropriate public education to their child, and the
reasons |
34 |
| therefor. Such written notification shall also inform the
|
|
|
|
09400SB2796sam001 |
- 8 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| parent or guardian of the opportunity to present complaints |
2 |
| with respect
to any matter relating to the educational |
3 |
| placement of the student, or
the provision of a free |
4 |
| appropriate public education and to have an
impartial due |
5 |
| process hearing on the complaint. The notice shall inform
the |
6 |
| parents or guardian in the parents' or guardian's native |
7 |
| language,
unless it is clearly not feasible to do so, of their |
8 |
| rights and all
procedures available pursuant to this Act and |
9 |
| federal law 108-142
94-142 ; it
shall be the responsibility of |
10 |
| the State Superintendent to develop
uniform notices setting |
11 |
| forth the procedures available under this Act
and federal law |
12 |
| 108-142
94-142 to be used by all school boards. The notice
|
13 |
| shall also inform the parents or guardian of the availability |
14 |
| upon
request of a list of free or low-cost legal and other |
15 |
| relevant services
available locally to assist parents or |
16 |
| guardians in initiating an
impartial due process hearing. Any |
17 |
| parent or guardian who is deaf, or
does not normally |
18 |
| communicate using spoken English, who participates in
a meeting |
19 |
| with a representative of a local educational agency for the
|
20 |
| purposes of developing an individualized educational program |
21 |
| shall be
entitled to the services of an interpreter.
|
22 |
| (h) (Blank).
A Level I due process hearing, hereinafter
|
23 |
| referred as the hearing, shall be conducted upon the request
of |
24 |
| the parents or guardian or local school board by an impartial
|
25 |
| hearing officer appointed as follows: If the request is made |
26 |
| through
the local school district, within 5 school days of |
27 |
| receipt of the
request, the local school district shall forward |
28 |
| the request to the
State Superintendent. Within 5 days after |
29 |
| receiving this request of
hearing, the State Board of Education |
30 |
| shall provide a list of 5
prospective, impartial hearing |
31 |
| officers. The State Board of Education,
by rule or regulation, |
32 |
| shall establish criteria for determining which persons
can be |
33 |
| included on such a list of prospective hearing officers. No one
|
34 |
| on the list may be a resident of the school district. No more |
|
|
|
09400SB2796sam001 |
- 9 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| than 2 of the 5
prospective hearing officers shall be gainfully |
2 |
| employed by or administratively
connected with any school |
3 |
| district, or any joint agreement or cooperative
program in |
4 |
| which school districts participate. In addition, no more than 2 |
5 |
| of
the 5 prospective hearing officers shall be gainfully |
6 |
| employed by or
administratively connected with private |
7 |
| providers of special education
services. The State Board of |
8 |
| Education shall actively recruit applicants for
hearing |
9 |
| officer positions. The board and the parents or guardian or |
10 |
| their legal
representatives within 5 days shall alternately |
11 |
| strike one name from the list
until only one name remains. The |
12 |
| parents or guardian shall have the right to
proceed first with |
13 |
| the striking. The per diem allowance for the hearing officer
|
14 |
| shall be established and paid by the State Board of Education. |
15 |
| The hearing
shall be closed to the public except that the |
16 |
| parents or guardian may require
that the hearing be public. The |
17 |
| hearing officer shall not be an employee of the
school |
18 |
| district, an employee in any joint agreement or cooperative |
19 |
| program in
which the district participates, or any other agency |
20 |
| or organization that is
directly involved in the diagnosis, |
21 |
| education or care of the student or the
State Board of |
22 |
| Education. All impartial hearing officers shall be adequately
|
23 |
| trained in federal and state law, rules and regulations and |
24 |
| case law regarding
special education. The State Board of |
25 |
| Education shall use resources from within
and outside the |
26 |
| agency for the purposes of conducting this training. The
|
27 |
| impartial hearing officer shall have the authority to require |
28 |
| additional
information or evidence where he or she deems it |
29 |
| necessary to make a complete
record and may order an |
30 |
| independent evaluation of the child, the cost of said
|
31 |
| evaluation to be paid by the local school district. Such |
32 |
| hearing shall not be
considered adversary in nature, but shall |
33 |
| be directed toward bringing out all
facts necessary for the |
34 |
| impartial hearing officer to render an informed
decision. The |
|
|
|
09400SB2796sam001 |
- 10 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| State Board of Education shall, with the advice and approval of
|
2 |
| the Advisory Council on Education of Children with
|
3 |
| Disabilities, promulgate rules and
regulations to establish |
4 |
| the qualifications of the hearing officers and the
rules and |
5 |
| procedure for such hearings. The school district shall present
|
6 |
| evidence that the special education needs of the child have |
7 |
| been appropriately
identified and that the special education |
8 |
| program and related services proposed
to meet the needs of the |
9 |
| child are adequate, appropriate and available. Any
party to the |
10 |
| hearing shall have the right to: (a) be represented by counsel |
11 |
| and
be accompanied and advised by individuals with special |
12 |
| knowledge or training
with respect to the problems of
children |
13 |
| with disabilities at the party's own expense; (b) present |
14 |
| evidence
and confront
and cross-examine witnesses; (c) |
15 |
| prohibit the introduction of any
evidence at the hearing that |
16 |
| has not been disclosed to that party at
least 5 days before the |
17 |
| hearing; (d) obtain a written or electronic
verbatim record of |
18 |
| the hearing; (e) obtain written findings of fact and
a written |
19 |
| decision. The student shall be allowed to attend the hearing
|
20 |
| unless the hearing officer finds that attendance is not in the |
21 |
| child's
best interest or detrimental to the child. The hearing |
22 |
| officer shall
specify in the findings the reasons for denying |
23 |
| attendance by the student.
The hearing officer, or the State |
24 |
| Superintendent in connection with State
level hearings, may |
25 |
| subpoena and compel the attendance of witnesses and
the |
26 |
| production of evidence reasonably necessary to the resolution |
27 |
| of the
hearing. The subpoena may be issued upon request of any |
28 |
| party. The State
Board of Education and the school board shall |
29 |
| share equally the costs of
providing a written or electronic |
30 |
| record of the proceedings. Such record
shall be transcribed and |
31 |
| transmitted to the State Superintendent no later
than 10 days |
32 |
| after receipt of notice of appeal. The hearing
officer shall |
33 |
| render a decision and shall submit a copy of the findings
of |
34 |
| fact and decision to the parent or guardian and to the local |
|
|
|
09400SB2796sam001 |
- 11 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| school
board within 10 school days after the conclusion of the |
2 |
| hearing. The hearing
officer may continue the hearing in order |
3 |
| to obtain additional information,
and, at the conclusion of the |
4 |
| hearing, shall issue a decision based on the
record which |
5 |
| specifies the special education and related services which
|
6 |
| shall be provided to the child in accordance with the child's |
7 |
| needs.
The hearing officer's decision shall be binding upon the |
8 |
| local school board
and the parent unless such decision is |
9 |
| appealed pursuant to the
provisions of this Section.
|
10 |
| (i) (Blank).
Any party aggrieved by the decision may appeal |
11 |
| the hearing officer's
decision to the State Board of Education |
12 |
| and shall serve copies
of the notice of such appeal on the |
13 |
| State Superintendent and on all other
parties. The review |
14 |
| referred to in this Section shall be known as the
Level II |
15 |
| review. The State Board
of Education shall provide a list of 5 |
16 |
| prospective, impartial reviewing
officers. No reviewing |
17 |
| officer shall be an employee of the State Board of
Education or |
18 |
| gainfully employed by or administratively connected with the
|
19 |
| school district, joint agreement or cooperative program which |
20 |
| is a party
to this review. Each person on the list shall be |
21 |
| accredited by a national
arbitration organization. The per diem |
22 |
| allowance for the review officers
shall be paid by the State |
23 |
| Board of Education and may not exceed $250. All
reviewing |
24 |
| officers on the list provided by the State Board of Education
|
25 |
| shall be trained in federal and state law, rules and |
26 |
| regulations and case
law regarding special education. The State |
27 |
| Board of Education shall use
resources from within and outside |
28 |
| the agency for the purposes of conducting
this training. No one |
29 |
| on the list may be a resident of the
school district. The board |
30 |
| and the parents or guardian or other legal
representatives |
31 |
| within 5 days shall alternately strike one name from the
list |
32 |
| until only one name remains. The parents or guardian shall have |
33 |
| the
right to proceed first with the striking. The reviewing |
34 |
| officer so
selected shall conduct an impartial review of the |
|
|
|
09400SB2796sam001 |
- 12 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| Level I
hearing and may issue subpoenas requiring the |
2 |
| attendance of witnesses at
such review. The parties to the |
3 |
| appeal shall be afforded the opportunity to
present oral |
4 |
| argument and additional evidence at the review. Upon completion |
5 |
| of
the review the reviewing officer shall render a decision and |
6 |
| shall provide a
copy of the decision to all parties.
|
7 |
| (j) (Blank).
No later than 30 days after receipt of notice |
8 |
| of appeal,
a final decision shall be reached and a copy mailed |
9 |
| to each of the parties.
A reviewing officer may grant specific |
10 |
| extensions of time beyond the 30-day
deadline at the request of |
11 |
| either party. If a Level II hearing is
convened the final |
12 |
| decision of a Level II hearing officer shall occur no
more than |
13 |
| 30 days following receipt of a notice of appeal, unless an
|
14 |
| extension of time is granted by the hearing officer at the |
15 |
| request of
either party. The State Board of Education shall |
16 |
| establish rules and
regulations delineating the standards to be |
17 |
| used in determining whether the
reviewing officer shall grant |
18 |
| such extensions. Each hearing and each review
involving oral |
19 |
| argument must be conducted at a time and place which are
|
20 |
| reasonably convenient to the parents and the child involved.
|
21 |
| (k) (Blank).
Any party aggrieved by the decision of the |
22 |
| reviewing officer, including
the parent or guardian, shall have |
23 |
| the right to bring a civil action with
respect to the complaint |
24 |
| presented pursuant to this Section, which action may
be brought |
25 |
| in any circuit court of competent jurisdiction within 120 days |
26 |
| after
a copy of the decision is mailed to the party as provided |
27 |
| in subsection (j).
The civil action provided above shall not be |
28 |
| exclusive of any rights or causes
of action otherwise |
29 |
| available. The commencement of a civil action under
subsection |
30 |
| (k) of this Section shall operate as a supersedeas. In any |
31 |
| action
brought under this Section the court shall receive the |
32 |
| records of the
administrative proceedings, shall hear |
33 |
| additional evidence at the request of a
party, and basing its |
34 |
| decision on the preponderance of the
evidence shall grant such |
|
|
|
09400SB2796sam001 |
- 13 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| relief as the court determines is appropriate.
In any instance |
2 |
| where a school district willfully disregards applicable
|
3 |
| regulations or statutes regarding a child covered by this |
4 |
| Article, and which
disregard has been detrimental to the child, |
5 |
| the school district shall be
liable for any reasonable |
6 |
| attorney's fees incurred by the parent or guardian
in |
7 |
| connection with proceedings under this Section.
|
8 |
| (l) (Blank).
During the pendency of any proceedings |
9 |
| conducted pursuant to this
Section, unless the State |
10 |
| Superintendent of Education, or the school
district and the |
11 |
| parents or guardian otherwise agree, the student shall
remain |
12 |
| in the then current educational placement of such student, or |
13 |
| if
applying for initial admission to the school district, |
14 |
| shall, with the
consent of the parents or guardian, be placed |
15 |
| in the school district
program until all such proceedings have |
16 |
| been completed. The costs for any
special education and related |
17 |
| services or placement incurred following 60
school days after |
18 |
| the initial request for evaluation shall be borne by
the school |
19 |
| district if such services or placement are in accordance with
|
20 |
| the final determination as to the special education and related |
21 |
| services
or placement which must be provided to the child, |
22 |
| provided however that
in said 60 day period there have been no |
23 |
| delays caused by the child's parent
or guardian.
|
24 |
| (m) (Blank).
Whenever (i) the parents or guardian of a |
25 |
| child of the type
described in
Section 14-1.02 are not known or |
26 |
| are unavailable
or (ii) the child is a ward of
the State
|
27 |
| residing in a residential facility, a person
shall be assigned |
28 |
| to serve as surrogate parent for the child in matters
relating |
29 |
| to the identification, evaluation, and educational placement |
30 |
| of
the child and the provision of a free appropriate public |
31 |
| education to
the child. Surrogate parents shall be assigned by |
32 |
| the State
Superintendent of Education. The State Board of |
33 |
| Education shall
promulgate rules and regulations establishing |
34 |
| qualifications of such
persons and their responsibilities and |
|
|
|
09400SB2796sam001 |
- 14 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| the procedures to be followed in
making such assignments. Such |
2 |
| surrogate parents shall not be employees of the
school |
3 |
| district, an agency created by joint agreement under Section
|
4 |
| 10-22.31, an agency involved in the education or care of the |
5 |
| student, or
the State Board of Education.
For a child who is a |
6 |
| ward of the State residing in a residential facility,
the
|
7 |
| surrogate
parent may be an employee of a nonpublic agency that |
8 |
| provides only
non-educational
care.
Services of any person |
9 |
| assigned as surrogate
parent shall terminate if the parent or |
10 |
| guardian becomes available
unless otherwise requested by the |
11 |
| parents or guardian. The assignment
of a person as surrogate |
12 |
| parent at no time supersedes, terminates, or
suspends the |
13 |
| parents' or guardian's legal authority relative to the
child. |
14 |
| Any person participating in good faith as surrogate parent on |
15 |
| behalf
of the child before school officials or a hearing |
16 |
| officer shall have
immunity from civil or criminal liability |
17 |
| that otherwise might result by
reason of such participation, |
18 |
| except in cases of willful and wanton
misconduct.
|
19 |
| (n) (Blank).
At all stages of the hearing the hearing |
20 |
| officer shall require that
interpreters be made available by |
21 |
| the local school district for persons who
are deaf or for |
22 |
| persons whose normally spoken language is other than English.
|
23 |
| (o) (Blank).
Whenever a person refuses to comply with any |
24 |
| subpoena issued under
this Section, the circuit court of the |
25 |
| county in which such hearing is
pending, on application of the |
26 |
| State Superintendent of Education or the
party who requested |
27 |
| issuance of the subpoena may compel obedience by
attachment |
28 |
| proceedings as for contempt, as in a case of disobedience of |
29 |
| the
requirements of a subpoena from such court for refusal to |
30 |
| testify therein.
|
31 |
| (Source: P.A. 93-282, eff. 7-22-03; 94-376, eff. 7-29-05.)
|
32 |
| (105 ILCS 5/14-8.02a)
|
33 |
| Sec. 14-8.02a. Impartial due process hearing; civil |
|
|
|
09400SB2796sam001 |
- 15 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| action.
|
2 |
| (a) This Section (rather than the impartial due process |
3 |
| procedures of
subsections (h) through (o) of
Section 14-8.02, |
4 |
| which shall continue to apply only to those impartial due
|
5 |
| process hearings that are requested under this Article before |
6 |
| July 1, 1997)
shall apply to all impartial due process hearings |
7 |
| requested on or after July
1, 2005
1997 . Impartial due process |
8 |
| hearings requested before July 1, 2005 shall be governed by the |
9 |
| rules described in Public Act 89-652. |
10 |
| (a-5) For purposes of this Section and Section 14-8.02b of |
11 |
| this Code, days shall be computed in accordance with Section |
12 |
| 1.11 of the Statute on Statutes.
|
13 |
| (b) The State Board of Education shall establish an |
14 |
| impartial due process
hearing system , including a corps of |
15 |
| hearing officers, in accordance with this
Section and may
|
16 |
| shall , with the advice and approval of the Advisory Council on
|
17 |
| Education of Children with Disabilities, promulgate rules and |
18 |
| regulations
consistent with this Section to establish the |
19 |
| qualifications of hearing
officers and the rules and procedures |
20 |
| for due process hearings. The State
Board of Education shall |
21 |
| recruit candidates for due process hearing officers
who meet |
22 |
| the criteria set forth in this Section. Candidates shall be |
23 |
| screened
by a 7-member Screening Committee consisting of the |
24 |
| following: the Attorney
General, or his or her designee; the |
25 |
| State Superintendent
of Education, or his or her designee; 3 |
26 |
| members appointed by the State
Superintendent of Education, one |
27 |
| of whom shall be a parent of a student
eligible for special |
28 |
| education, another of whom shall be a director of special
|
29 |
| education for an Illinois school district or special education |
30 |
| joint agreement,
and the other of whom shall be an adult with a |
31 |
| disability; and 2 members
appointed by the Attorney General, |
32 |
| one of whom shall be a parent of a student
eligible for special |
33 |
| education and the other of whom shall be an experienced
special |
34 |
| education hearing officer who is not a candidate for |
|
|
|
09400SB2796sam001 |
- 16 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| appointment under
this Section. The members of the Screening |
2 |
| Committee shall be appointed no
later than 60 days following |
3 |
| the effective date of this amendatory Act of 1996.
The |
4 |
| chairperson of the Advisory Council on Education of Children |
5 |
| with
Disabilities or his or her designee shall serve on the |
6 |
| Screening Committee as
an ex-officio non-voting member. Three |
7 |
| members of the Screening Committee
shall be appointed for |
8 |
| initial terms of 2 years, and 4 members shall be
appointed for |
9 |
| initial terms of 3 years, by using a lottery system. Subsequent
|
10 |
| appointments and reappointments shall be for terms for 3 years. |
11 |
| The Screening
Committee shall elect a chairperson from among |
12 |
| its voting members. Members of
the Screening Committee shall |
13 |
| serve without compensation but shall be
reimbursed by the State |
14 |
| Board of Education for their expenses. The
Screening Committee |
15 |
| shall review applications and supporting information,
|
16 |
| interview candidates, and recommend applicants to the Advisory |
17 |
| Council on
Education of Children with Disabilities based upon |
18 |
| objective criteria it
develops and makes available to the |
19 |
| public. The number of candidates
recommended shall equal 150% |
20 |
| of the number deemed necessary by the State Board
of Education.
|
21 |
| (c) (Blank).
The application process shall require each |
22 |
| applicant to provide a
comprehensive disclosure of his or her |
23 |
| professional background and work
experience. Applicants must |
24 |
| hold at least a masters level degree, a juris
doctor degree, or |
25 |
| a bachelors degree with relevant experience. Current
employees |
26 |
| of the State Board of Education, local school districts, |
27 |
| special
education cooperatives, regional service areas or |
28 |
| centers, regional educational
cooperatives, state-operated |
29 |
| elementary and secondary schools, or private
providers of |
30 |
| special education facilities or programs shall be disqualified
|
31 |
| from serving as impartial due process hearing officers. Nothing |
32 |
| in this
Section shall be construed to prohibit retired school |
33 |
| personnel and part-time
contractual school personnel who serve |
34 |
| in a consulting capacity from serving as
hearing officers. |
|
|
|
09400SB2796sam001 |
- 17 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| Applications by individuals on the State Board of
Education's |
2 |
| list of eligible Level I due process hearing officers or Level |
3 |
| II
review officers when the initial recruitment of due process |
4 |
| hearing officers is
conducted under this Section shall be |
5 |
| considered if they meet the
qualifications under this |
6 |
| subsection.
|
7 |
| (d) (Blank).
The State Board of Education shall, through a |
8 |
| competitive application
process, enter into a contract with an |
9 |
| outside entity to establish and conduct
mandatory training |
10 |
| programs for impartial due process hearing officers and an
|
11 |
| annual evaluation of each impartial due process hearing officer |
12 |
| that shall
include a written evaluation report. The invitation |
13 |
| for applications shall set
forth minimum qualifications for |
14 |
| eligible applicants. Each contract under this
subsection may be |
15 |
| renewed on an annual basis subject to appropriations. The
State |
16 |
| Board of Education shall conduct a
new competitive application |
17 |
| process at least once every 3 years after the
initial contract |
18 |
| is granted. The Screening Committee established pursuant to
|
19 |
| subsection (b) of this Section shall review the training |
20 |
| proposals and
forward them, with recommendations in rank order, |
21 |
| to the State Board of
Education. All impartial hearing
officer |
22 |
| candidates recommended to the Advisory Council on Education of |
23 |
| Children
with Disabilities shall successfully complete initial |
24 |
| and all follow-up
trainings, as established by the contract |
25 |
| between the State Board of Education
and the training entity, |
26 |
| in order to be eligible to serve as an impartial due
process |
27 |
| hearing officer. The training curriculum shall include, at a |
28 |
| minimum,
instruction in federal and State law, rules, and |
29 |
| regulations, federal
regulatory interpretations and court |
30 |
| decisions regarding special education and
relevant general |
31 |
| education issues, diagnostic procedures, information about
|
32 |
| disabilities, and techniques for conducting effective and |
33 |
| impartial hearings,
including order of presentation.
The |
34 |
| training shall be conducted in an unbiased manner by education |
|
|
|
09400SB2796sam001 |
- 18 - |
LRB094 16298 NHT 55535 a |
|
|
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. |
|
|
|
09400SB2796sam001 |
- 19 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| The State Board of Education shall index and maintain a
|
2 |
| reporting system of impartial due process hearing decisions and |
3 |
| shall make such
decisions available for review by the public |
4 |
| after deleting child-specific
identifying information.
|
5 |
| (e) (Blank).
An impartial due process hearing officer shall |
6 |
| be terminated by the
State Board of Education for just cause |
7 |
| if, after written notice is provided,
appropriate timely |
8 |
| corrective action is not taken. For purposes of this
subsection |
9 |
| just cause shall be (1) failure or refusal to accept assigned |
10 |
| cases
without good cause; (2) failure or refusal to fulfill |
11 |
| duties as a hearing
officer in a timely manner; (3) consistent |
12 |
| disregard for applicable laws and
regulations in the conduct of |
13 |
| hearings; (4) consistent failure to conduct
himself or herself |
14 |
| in a patient, dignified, and courteous manner to parties,
|
15 |
| witnesses, counsel, and other participants in hearings; (5) |
16 |
| failure to accord
parties or their representatives a full and |
17 |
| fair opportunity to be heard in
matters coming before him or |
18 |
| her; (6) violating applicable laws regarding
privacy and |
19 |
| confidentiality of records or information; (7) manifesting, by
|
20 |
| words or conduct, bias or prejudice based upon race, sex, |
21 |
| religion, disability,
or national origin; (8) failure to recuse |
22 |
| himself or
herself from a hearing in which he or she has a |
23 |
| personal, professional, or
financial conflict of interest |
24 |
| which he or she knew or should have known
existed at any time |
25 |
| prior to or during the hearing; (9) conviction in any
|
26 |
| jurisdiction of any felony or of a misdemeanor involving moral |
27 |
| turpitude; and
(10) falsification of a material fact on his or |
28 |
| her application to serve as a
due process hearing officer. In |
29 |
| addition, an impartial hearing officer who, as
a result of |
30 |
| events occurring after appointment, no longer meets the minimum
|
31 |
| requirements set forth in this Section, shall be disqualified |
32 |
| to complete the
balance of his or her contract term.
|
33 |
| The State Board of Education shall monitor, review, and |
34 |
| evaluate the
impartial due process hearing system on a regular |
|
|
|
09400SB2796sam001 |
- 20 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| basis by a process that
includes a review of written decisions |
2 |
| and evaluations by participants in
impartial due process |
3 |
| hearings and their representatives. The State Board of
|
4 |
| Education shall prepare an annual written report no later than |
5 |
| July 1 of each
year, beginning in 1998, evaluating the |
6 |
| impartial due process hearing system.
The reports shall be |
7 |
| submitted to the members of the State Board of Education,
the |
8 |
| State Superintendent of Education, the Advisory Council on |
9 |
| Education of
Children with Disabilities, and the Screening |
10 |
| Committee and shall be made
available to the public.
|
11 |
| The training entity under subsection (d) shall conduct |
12 |
| annual evaluations of
each hearing officer and shall prepare |
13 |
| written evaluation reports to be
provided to the Screening |
14 |
| Committee for its consideration in the reappointment
process. |
15 |
| The evaluation
process shall include a review of written |
16 |
| decisions and evaluations by
participants in impartial due |
17 |
| process hearings and their representatives. Each
hearing |
18 |
| officer shall be provided with a copy of his or her evaluation |
19 |
| report
and shall have an opportunity to review the report with |
20 |
| the training entity and
submit written comments.
|
21 |
| (f) An impartial due process hearing shall be convened upon |
22 |
| the request of a
parent or guardian , student if at least 18 |
23 |
| years of age or emancipated, or a
school district. A school |
24 |
| district shall
make a request in writing to the State Board of |
25 |
| Education and promptly mail a
copy of the request to the |
26 |
| parents or
or guardian of the student (if at least 18 years of |
27 |
| age or emancipated) at the parent's or student's
their last
|
28 |
| known address. A request made by the parent or student shall be |
29 |
| made in writing to the superintendent of the school district |
30 |
| where the student resides. The superintendent shall forward the |
31 |
| request to the State Board of Education within 5 days after |
32 |
| receipt of the request. The request shall be filed no more than |
33 |
| 2 years following the date the person or school district knew |
34 |
| or should have known of the event or events forming the basis |
|
|
|
09400SB2796sam001 |
- 21 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| for the request. The request shall, at a minimum, contain all |
2 |
| of the following: |
3 |
| (1) The name of the student, the address of the |
4 |
| student's residence, and the name of the school the student |
5 |
| is attending. |
6 |
| (2) In the case of homeless children (as defined under |
7 |
| the federal McKinney-Vento Homeless Assistance Act (42 |
8 |
| U.S.C. 11434a(2)), available contact information for the |
9 |
| student and the name of the school the student is |
10 |
| attending. |
11 |
| (3) A description of the nature of the problem relating |
12 |
| to the actual or proposed placement, identification, |
13 |
| services, or evaluation of the student, including facts |
14 |
| relating to the problem. |
15 |
| (4) A proposed resolution of the problem to the extent |
16 |
| known and available to the party at the time. |
17 |
| A request made by the parent , guardian, or student shall be
|
18 |
| made in writing to the superintendent of the school district in |
19 |
| which the
student resides, who shall forward the request
to the |
20 |
| State Board of Education within 5 days of receipt of the
|
21 |
| request. |
22 |
| (f-5) Within 3
5 days after receipt of the hearing request ,
|
23 |
| the State Board of
Education shall appoint a due process |
24 |
| hearing officer using a rotating
appointment system and shall |
25 |
| notify the hearing officer of his or her
appointment. |
26 |
| For a school district other than a school district located |
27 |
| in a municipality having a population exceeding 500,000, a |
28 |
| hearing officer who is a current resident of the school |
29 |
| district, special
education cooperative, or other public |
30 |
| entity involved in the hearing shall recuse himself or herself. |
31 |
| A hearing officer who is a former employee of the school |
32 |
| district, special education cooperative, or other public |
33 |
| entity involved in the hearing shall immediately disclose the |
34 |
| former employment to the parties and shall recuse himself or |
|
|
|
09400SB2796sam001 |
- 22 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| herself, unless the parties otherwise agree in writing.
No |
2 |
| person who is an employee of a school district that is
involved |
3 |
| in the education or care of the student shall conduct the |
4 |
| hearing. A
hearing officer having a personal or professional |
5 |
| interest that may
would conflict
with his or her objectivity in |
6 |
| the hearing shall disclose the conflict to the parties and |
7 |
| shall recuse himself or herself unless the parties otherwise |
8 |
| agree in writing
so notify the State Board of
Education and |
9 |
| shall be replaced by the next scheduled impartial due process
|
10 |
| hearing officer under the rotation system . For purposes of this |
11 |
| subsection
an assigned hearing officer shall be considered to |
12 |
| have a conflict of interest
if, at any time prior to the |
13 |
| issuance of his or her written decision, he or she
knows or |
14 |
| should know that he or she may receive remuneration from a |
15 |
| party
to the hearing within 3 years following the conclusion of |
16 |
| the due process
hearing. |
17 |
| A party to a due process hearing shall be permitted one |
18 |
| substitution
of hearing officer as a matter of right, in |
19 |
| accordance with procedures
established by the rules adopted by |
20 |
| the State Board of Education under this
Section. The State |
21 |
| Board of Education shall randomly select and appoint
another |
22 |
| hearing officer within 3
5 days after receiving notice that the |
23 |
| appointed
hearing officer is ineligible to serve or upon |
24 |
| receiving a proper request for
substitution of hearing officer. |
25 |
| If a party withdraws its request for a due
process hearing |
26 |
| after a hearing officer has been appointed, that hearing
|
27 |
| officer shall retain jurisdiction over a subsequent hearing |
28 |
| that involves the
same parties and is requested within one year |
29 |
| from the date of withdrawal of
the previous request, unless |
30 |
| that hearing
officer is unavailable.
|
31 |
| A former employee or current resident of the school |
32 |
| district, special
education cooperative, or other public |
33 |
| entity involved in the due process
hearing shall recuse himself |
34 |
| or herself. A hearing officer shall disclose any
actual or |
|
|
|
09400SB2796sam001 |
- 23 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| potential conflicts of
interests to the parties upon learning |
2 |
| of those conflicts. Any party may raise
facts that constitute a |
3 |
| conflict of interest for the hearing officer at any
time before |
4 |
| or during the hearing and may move for recusal.
|
5 |
| For purposes of this Section, "days" shall be computed in |
6 |
| accordance with
Section 1.11 of the Statute on Statutes.
|
7 |
| (g) Impartial due process hearings shall be conducted |
8 |
| pursuant to this
Section and any rules and regulations |
9 |
| promulgated by the State Board of Education
consistent with |
10 |
| this Section and other governing laws and regulations. The |
11 |
| hearing shall address only those issues properly raised in the |
12 |
| hearing request under subsection (f) of this Section. The
|
13 |
| hearing shall be closed to the public unless the parents or |
14 |
| guardian request
that the hearing be open to the public. The |
15 |
| parents or guardian involved in
the hearing shall have the |
16 |
| right to have the student who is the subject of the
hearing |
17 |
| present. The hearing shall be held at a time and place which |
18 |
| are
reasonably convenient to the parties involved. Upon the |
19 |
| request of
a party, the hearing officer shall hold the hearing |
20 |
| at a location neutral to
the parties if the hearing officer |
21 |
| determines that there is no cost for
securing the use of the |
22 |
| neutral location. Once appointed, the impartial due
process |
23 |
| hearing officer shall not communicate with the State Board of |
24 |
| Education
or its employees concerning the
hearing, except that, |
25 |
| where circumstances require, communications for
administrative |
26 |
| purposes that do not deal with substantive or procedural |
27 |
| matters
or issues on the merits are authorized, provided that |
28 |
| the hearing officer
promptly notifies all parties of the |
29 |
| substance of the communication as a matter
of record. |
30 |
| (g-5) Unless the school district has previously provided |
31 |
| prior written notice to the parent or student (if at least 18 |
32 |
| years of age or emancipated) regarding the subject matter of |
33 |
| the hearing request, the school district shall, within 10 days |
34 |
| after receiving a hearing request initiated by a parent or |
|
|
|
09400SB2796sam001 |
- 24 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| student (if at least 18 years of age or emancipated), provide a |
2 |
| written response to the request that shall include all of the |
3 |
| following: |
4 |
| (1) An explanation of why the school district proposed |
5 |
| or refused to take the action or actions described in the |
6 |
| hearing request. |
7 |
| (2) A description of other options the IEP team |
8 |
| considered and the reasons why those options were rejected. |
9 |
| (3) A description of each evaluation procedure, |
10 |
| assessment, record, report, or other evidence the school |
11 |
| district used as the basis for the proposed or refused |
12 |
| action or actions. |
13 |
| (4) A description of the factors that are or were |
14 |
| relevant to the school district's proposed or refused |
15 |
| action or actions. |
16 |
| (g-10) When the hearing request has been initiated by a |
17 |
| school district, within 10 days after receiving the request, |
18 |
| the parent or student (if at least 18 years of age or |
19 |
| emancipated) shall provide the school district with a response |
20 |
| that specifically addresses the issues raised in the school |
21 |
| district's hearing request. The parent's or student's response |
22 |
| shall be provided in writing, unless he or she is illiterate or |
23 |
| has a disability that prevents him or her from providing a |
24 |
| written response. The parent's or student's response may be |
25 |
| provided in his or her native language, if other than English. |
26 |
| In the event that illiteracy or another disabling condition |
27 |
| prevents the parent or student from providing a written |
28 |
| response, the school district shall assist the parent or |
29 |
| student in providing the written response. |
30 |
| (g-15) Within 15 days after receiving notice of the hearing |
31 |
| request, the non-requesting party may challenge the |
32 |
| sufficiency of the request by submitting its challenge in |
33 |
| writing to the hearing officer. Within 5 days after receiving |
34 |
| the challenge to the sufficiency of the request, the hearing |
|
|
|
09400SB2796sam001 |
- 25 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| officer shall issue a determination of the challenge in writing |
2 |
| to the parties. In the event that the hearing officer upholds |
3 |
| the challenge, the party who requested the hearing may, with |
4 |
| the consent of the non-requesting party or with leave of the |
5 |
| hearing officer, file an amended request. An amended request |
6 |
| shall be filed by the date determined by the hearing officer, |
7 |
| but in no event any later than 5 days prior to the date of the |
8 |
| hearing. If the amended request raises issues that were not |
9 |
| part of the initial request, the parties shall be permitted to |
10 |
| re-initiate the resolution meeting described in subsection |
11 |
| (g-20) of this Section or State-sponsored mediation in place of |
12 |
| the resolution meeting, as described in subsection (g-25) of |
13 |
| this Section. |
14 |
| (g-20) Within 15 days after receiving a request for a |
15 |
| hearing from a parent or student (if at least 18 years of age |
16 |
| or emancipated) or, in the event that the school district |
17 |
| requests a hearing, within 15 days after initiating the |
18 |
| request, the school district shall convene a resolution meeting |
19 |
| with the parent and relevant members of the IEP team who have |
20 |
| specific knowledge of the facts contained in the request for |
21 |
| the purpose of resolving the problem that resulted in the |
22 |
| request. The resolution meeting shall include a representative |
23 |
| of the school district who has decision-making authority on |
24 |
| behalf of the school district. Unless the parent is accompanied |
25 |
| by an attorney at the resolution meeting, the school district |
26 |
| may not include an attorney representing the school district. |
27 |
| The resolution meeting may not be waived unless agreed to |
28 |
| in writing by the school district and the parent or student (if |
29 |
| at least 18 years of age or emancipated) or the parent or |
30 |
| student (if at least 18 years of age or emancipated) and the |
31 |
| school district agree in writing to utilize mediation in place |
32 |
| of the resolution meeting. If either party fails to cooperate |
33 |
| in the scheduling or convening of the resolution meeting, the |
34 |
| hearing officer may order an extension of the timeline for |
|
|
|
09400SB2796sam001 |
- 26 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| completion of the resolution meeting or, upon the motion of a |
2 |
| party, order the dismissal of the hearing request or the |
3 |
| granting of all relief set forth in the request, as |
4 |
| appropriate. |
5 |
| In the event that the school district and the parent or |
6 |
| student (if at least 18 years of age or emancipated) agree to a |
7 |
| resolution of the problem that resulted in the hearing request, |
8 |
| the terms of the resolution shall be committed to writing and |
9 |
| signed by the parent or student (if at least 18 years of age or |
10 |
| emancipated) and the representative of the school district with |
11 |
| decision-making authority. The agreement shall be legally |
12 |
| binding and shall be enforceable in any State or federal court |
13 |
| of competent jurisdiction. In the event that the parties |
14 |
| utilize the resolution meeting process, the resolution meeting |
15 |
| shall continue until no later than the 30th day following the |
16 |
| receipt of the hearing request by the non-requesting party (or |
17 |
| as properly extended by order of the hearing officer) to |
18 |
| resolve the issues underlying the request, at which time the |
19 |
| timeline for completion of the impartial due process hearing |
20 |
| shall commence. The State Board of Education may, by rule, |
21 |
| establish additional procedures for the conduct of resolution |
22 |
| meetings. |
23 |
| (g-25) If mutually agreed to in writing, the parties to a |
24 |
| hearing request may request State-sponsored mediation as a |
25 |
| substitute for the resolution meeting described in subsection |
26 |
| (g-20) of this Section or may utilize mediation at the close of |
27 |
| the resolution meeting if all issues underlying the hearing |
28 |
| request have not been resolved through the resolution meeting. |
29 |
| (g-30) If mutually agreed to in writing, the parties to a |
30 |
| hearing request may waive the resolution meeting described in |
31 |
| subsection (g-20) of this Section. Upon signing a written |
32 |
| agreement to waive the resolution meeting, the parties shall be |
33 |
| required to forward the written waiver to the hearing officer |
34 |
| appointed to the case within 2 business days following the |
|
|
|
09400SB2796sam001 |
- 27 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| signing of the waiver by the parties. The timeline for the |
2 |
| impartial due process hearing shall commence on the date of the |
3 |
| signing of the waiver by the parties. |
4 |
| (g-35) The timeline for completing the impartial due |
5 |
| process hearing, as set forth in subsection (h) of this |
6 |
| Section, shall be initiated upon the occurrence of any one of |
7 |
| the following events: |
8 |
| (1) The unsuccessful completion of the resolution |
9 |
| meeting as described in subsection (g-20) of this Section. |
10 |
| (2) The mutual agreement of the parties to waive the |
11 |
| resolution meeting as described in subsection (g-25) or |
12 |
| (g-30) of this Section.
|
13 |
| (g-40) The hearing officer shall convene a prehearing |
14 |
| conference no later than 14
days before the scheduled date for |
15 |
| the due process hearing for the general
purpose of aiding in |
16 |
| the fair, orderly, and expeditious conduct of the hearing.
The |
17 |
| hearing officer shall provide the parties with written notice |
18 |
| of the
prehearing conference at least 7
10 days in advance of |
19 |
| the conference. The
written notice shall require the parties to |
20 |
| notify the hearing officer by a
date certain whether they |
21 |
| intend to participate in the prehearing conference.
The hearing |
22 |
| officer may conduct the prehearing conference in person or by
|
23 |
| telephone. Each party shall disclose at the prehearing |
24 |
| conference (1) disclose whether
it is represented by legal |
25 |
| counsel or intends to retain legal counsel; (2) clarify
the
|
26 |
| matters it believes to be in dispute in the case and the |
27 |
| specific relief
being sought; (3) disclose whether there are |
28 |
| any additional evaluations for the student
that it intends to
|
29 |
| introduce into the
hearing record that have not been previously |
30 |
| disclosed to the other parties;
(4) disclose a list of all |
31 |
| documents it intends to introduce into the hearing record,
|
32 |
| including the date and a brief description of each document; |
33 |
| and (5) disclose the names
of all witnesses it intends to call |
34 |
| to testify at the hearing. The hearing
officer shall specify |
|
|
|
09400SB2796sam001 |
- 28 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| the order of presentation to be used at the hearing. If
the
|
2 |
| prehearing conference is held by telephone, the parties shall |
3 |
| transmit the
information required in this paragraph in such a |
4 |
| manner that it is available to
all parties at the time of the |
5 |
| prehearing conference. The State Board of
Education may
shall , |
6 |
| by
rule, establish additional procedures for the conduct of |
7 |
| prehearing
conferences.
|
8 |
| (g-45) The
impartial due process hearing officer shall not |
9 |
| initiate or participate in any
ex parte communications with the |
10 |
| parties, except to arrange the date, time,
and location of the |
11 |
| prehearing conference ,
and due process hearing , or other status |
12 |
| conferences convened at the discretion of the hearing officer
|
13 |
| and to
receive confirmation of whether a party intends to |
14 |
| participate in the
prehearing conference. |
15 |
| (g-50) The parties shall disclose and provide to each other
|
16 |
| any evidence which they intend to submit into the hearing |
17 |
| record no later than
5 days before the hearing. Any party to a |
18 |
| hearing has the right to prohibit
the introduction of any |
19 |
| evidence at the hearing that has not been disclosed to
that |
20 |
| party at least 5 days before the hearing. The party requesting |
21 |
| a hearing shall not be permitted at the hearing to raise issues |
22 |
| that were not raised in the party's initial or amended request, |
23 |
| unless otherwise permitted in this Section.
|
24 |
| (g-55) The length of the hearing must not exceed 5 days |
25 |
| unless good cause is shown. When scheduling hearing dates, the |
26 |
| hearing officer shall schedule the final day of the hearing no |
27 |
| more than 30 calendar days after the first day of the hearing |
28 |
| unless good cause is shown. The school district shall present |
29 |
| evidence that the special education needs
of the child have |
30 |
| been appropriately identified and that the special education
|
31 |
| program and related services proposed to meet the needs of the |
32 |
| child are
adequate, appropriate, and available. Any party to |
33 |
| the hearing shall have the
right to (1) be represented
by |
34 |
| counsel and be accompanied and advised by individuals with |
|
|
|
09400SB2796sam001 |
- 29 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| special knowledge
or training with respect to the problems of |
2 |
| children with disabilities, at the
party's own expense; (2) |
3 |
| present evidence and confront and cross-examine
witnesses; (3) |
4 |
| move for the exclusion of witnesses from the hearing until they
|
5 |
| are called to testify, provided, however, that this provision |
6 |
| may not be
invoked to exclude the individual designated by a |
7 |
| party to assist that party or
its representative in the |
8 |
| presentation of the case; (4) obtain a written or
electronic |
9 |
| verbatim record of
the proceedings within 30 days of receipt of |
10 |
| a written request from the parents
by the school district; and |
11 |
| (5) obtain a written decision, including findings
of fact and |
12 |
| conclusions of law, within 10 days after the conclusion of the
|
13 |
| hearing.
If at issue, the school district shall present |
14 |
| evidence that it has
properly identified and evaluated the |
15 |
| nature and
severity of the student's suspected or identified |
16 |
| disability and that, if the
student has been or should have |
17 |
| been determined eligible for special education
and related |
18 |
| services, that it is providing or has offered a free |
19 |
| appropriate
public education to the student in the least |
20 |
| restrictive environment,
consistent with
procedural safeguards |
21 |
| and in accordance with an individualized educational
program.
|
22 |
| At any time prior to the conclusion of the hearing, the |
23 |
| impartial due
process hearing officer shall have the authority |
24 |
| to require additional
information and order independent |
25 |
| evaluations for the
student at the expense of the school |
26 |
| district. The State Board of Education
and the school district |
27 |
| shall share equally the costs of providing a written or
|
28 |
| electronic verbatim record of the proceedings. Any party may |
29 |
| request that the
due process hearing officer issue a subpoena |
30 |
| to compel the testimony of
witnesses or the production of |
31 |
| documents relevant to the
resolution of the hearing. Whenever a |
32 |
| person refuses to comply with any
subpoena issued under this |
33 |
| Section, the circuit court of the county in which
that hearing |
34 |
| is pending, on application of the impartial hearing officer or |
|
|
|
09400SB2796sam001 |
- 30 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| the
party requesting the issuance of the subpoena, may compel |
2 |
| compliance through
the contempt powers of
the court in the same |
3 |
| manner as if the requirements of a subpoena issued by the
court |
4 |
| had been disobeyed.
|
5 |
| (h) The impartial hearing officer shall issue a written |
6 |
| decision, including
findings of fact and conclusions of law, |
7 |
| within 10 days after the
conclusion of the hearing and mail a |
8 |
| copy of the decision to the parents ,
guardian, or student (if |
9 |
| the student requests the hearing), the school
district, the |
10 |
| director of special education, legal representatives of the
|
11 |
| parties, and the State Board of Education. Unless the hearing |
12 |
| officer has
granted specific extensions of time at the request |
13 |
| of a party, a final
decision, including the clarification of a |
14 |
| decision requested under this
subsection, shall be reached and |
15 |
| mailed to the parties named above not later
than 45 days after |
16 |
| the initiation of the timeline for conducting the hearing, as |
17 |
| described in subsection (g-35) of this Section
request for |
18 |
| hearing is received by the school district,
public agency, or |
19 |
| the State Board of Education, whichever is sooner . The
decision |
20 |
| shall specify the educational and related services that shall |
21 |
| be
provided to the student in accordance with the student's |
22 |
| needs and the timeline for which the school district shall |
23 |
| submit evidence to the State Board of Education to demonstrate |
24 |
| compliance with the hearing officer's decision in the event |
25 |
| that the decision orders the school district to undertake |
26 |
| corrective action .
The hearing officer shall retain |
27 |
| jurisdiction for the sole purpose of
considering a request for |
28 |
| clarification of the final decision submitted in
writing by a |
29 |
| party to the impartial hearing officer within 5 days after |
30 |
| receipt
of the decision.
A copy of the request for |
31 |
| clarification shall specify the portions of the
decision for |
32 |
| which clarification is sought and shall be mailed to all |
33 |
| parties
of record and to the State Board of Education. The |
34 |
| request shall
operate to stay implementation of those portions |
|
|
|
09400SB2796sam001 |
- 31 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| of the decision for which
clarification is sought, pending |
2 |
| action on the request by the hearing officer,
unless the |
3 |
| parties otherwise agree. The hearing officer shall issue a
|
4 |
| clarification of the specified portion of the decision or issue |
5 |
| a partial or
full denial of the request in writing within 10 |
6 |
| days of receipt of the request
and mail copies to all parties |
7 |
| to whom the decision was mailed. This
subsection does not |
8 |
| permit a party to request, or authorize a hearing officer
to |
9 |
| entertain, reconsideration of the decision itself. The statute |
10 |
| of
limitations for seeking review of the decision shall be |
11 |
| tolled from the date
the request is submitted until the date |
12 |
| the hearing officer acts upon the
request. Upon the filing of a |
13 |
| civil action pursuant to subsection (i) of this
Section, the |
14 |
| hearing officer shall no longer exercise jurisdiction over the
|
15 |
| case. The hearing officer's decision shall be binding upon the |
16 |
| school district
and the parents or guardian unless a civil |
17 |
| action is commenced.
|
18 |
| (i) Any party to an impartial due process hearing aggrieved |
19 |
| by the final
written decision of the impartial due process |
20 |
| hearing officer shall have the
right to commence a civil action |
21 |
| with respect to the issues presented in the
impartial due |
22 |
| process hearing. That civil action shall be brought in any
|
23 |
| court of competent jurisdiction within 90
120 days after a copy |
24 |
| of the
decision of the impartial due process hearing officer is |
25 |
| mailed to the party as
provided in
subsection (h). The civil |
26 |
| action authorized by this subsection shall not be
exclusive of |
27 |
| any rights or causes of action otherwise
available. The |
28 |
| commencement of a civil action under this subsection shall
|
29 |
| operate as a supersedeas. In any action brought under this |
30 |
| subsection the
Court shall receive the records of the impartial |
31 |
| due process hearing, shall
hear additional evidence at the |
32 |
| request of a party, and, basing its decision on
the |
33 |
| preponderance of the evidence, shall grant such relief as the |
34 |
| court
determines is appropriate. In any instance where a school |
|
|
|
09400SB2796sam001 |
- 32 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| district willfully
disregards applicable regulations or |
2 |
| statutes regarding a child covered by this
Article, and which |
3 |
| disregard has been detrimental to the child, the school
|
4 |
| district shall be liable for any reasonable attorney's fees |
5 |
| incurred by the
parent or guardian in connection with |
6 |
| proceedings under this Section.
|
7 |
| (j) During the pendency of any administrative or judicial |
8 |
| proceeding
conducted
pursuant to this Section, unless the |
9 |
| school district and the
parents or
or guardian of the student |
10 |
| (if at least 18 years of age or emancipated) otherwise agree, |
11 |
| the student shall remain in
his or her present educational |
12 |
| placement and continue in his or her present
eligibility status |
13 |
| and special education and related services, if any. If the
|
14 |
| hearing officer orders a change in the eligibility status, |
15 |
| educational
placement, or special education and related |
16 |
| services of the student, that
change shall not be implemented |
17 |
| until 30 days have elapsed following the date
the hearing |
18 |
| officer's
decision is mailed to the parties in order to allow |
19 |
| any party aggrieved by the
decision to commence a civil action |
20 |
| to stay
implementation of the decision. If applying for initial |
21 |
| admission to the
school district, the student shall, with the |
22 |
| consent of the parents (if the student is not at least 18 years |
23 |
| of age or emancipated)
or
guardian , be placed in the school |
24 |
| district program until all such proceedings
have been |
25 |
| completed. The costs for any special education and related |
26 |
| services
or placement incurred following 60 school days after |
27 |
| the initial request for
evaluation shall be borne by the school |
28 |
| district if the services or placement
is in accordance with the |
29 |
| final determination as to the special education and
related |
30 |
| services or placement that must be provided to the child, |
31 |
| provided that
during that 60 day period there have been no |
32 |
| delays caused by the child's
parent or guardian .
|
33 |
| (k) Whenever the parents or guardian of a child of the type |
34 |
| described in
Section 14-1.02 are not known, are unavailable, or |
|
|
|
09400SB2796sam001 |
- 33 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| the child is a ward of the
State, a person shall be assigned to |
2 |
| serve as surrogate parent for the child in
matters relating to |
3 |
| the identification, evaluation, and educational placement
of |
4 |
| the child and the provision of a free appropriate public |
5 |
| education to the
child. Persons shall be assigned as surrogate |
6 |
| parents by the State
Superintendent of Education. The State |
7 |
| Board of Education shall promulgate
rules and regulations |
8 |
| establishing qualifications of those persons and their
|
9 |
| responsibilities and the procedures to be followed in making |
10 |
| assignments of
persons as surrogate parents.
Surrogate parents |
11 |
| shall not be employees of the school district, an agency
|
12 |
| created by joint agreement under Section 10-22.31, an agency |
13 |
| involved in the
education or care of the student, or the State |
14 |
| Board of Education.
Services of any person assigned as |
15 |
| surrogate parent shall terminate if the
parent or guardian
|
16 |
| becomes available unless otherwise requested by the parents
or |
17 |
| guardian . The assignment of a person as surrogate parent at no |
18 |
| time
supersedes, terminates, or suspends the parents' or |
19 |
| guardians' legal authority
relative to the child. Any person |
20 |
| participating in good faith as surrogate
parent on behalf of |
21 |
| the child before school officials or a hearing officer
shall |
22 |
| have immunity from civil or criminal liability that otherwise |
23 |
| might
result by reason of that participation, except in cases |
24 |
| of willful and
wanton misconduct.
|
25 |
| (l) At all stages of the hearing the hearing officer shall |
26 |
| require that
interpreters be made available by the school |
27 |
| district for persons who are deaf
or for persons whose normally |
28 |
| spoken language is other than English.
|
29 |
| (m) If any provision of this Section or its application to |
30 |
| any person or
circumstance is held invalid, the invalidity of |
31 |
| that provision or application
does not affect other provisions |
32 |
| or applications of the Section that can be
given effect without |
33 |
| the invalid application or provision, and to this end the
|
34 |
| provisions of this Section are severable, unless otherwise |
|
|
|
09400SB2796sam001 |
- 34 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| provided by this
Section.
|
2 |
| (Source: P.A. 89-652, eff. 8-14-96.)
|
3 |
| (105 ILCS 5/14-8.02b)
|
4 |
| Sec. 14-8.02b. Expedited Hearings. |
5 |
| (a) The changes made to this Section by this amendatory Act |
6 |
| of the 94th General Assembly shall apply to all expedited |
7 |
| hearings requested on or after the effective date of this |
8 |
| amendatory Act of the 94th General Assembly.
|
9 |
| (b) Unless otherwise provided by this
Section,
the
|
10 |
| provisions of Section 14-8.02a are applicable to this Section. |
11 |
| The
State Board of
Education shall provide for the conduct of |
12 |
| expedited hearings in accordance
with the
Individuals with |
13 |
| Disabilities Education Act, Public Law 108-446
105-17 , 20 USC
|
14 |
| Sections 1400 et seq.
(hereafter IDEA).
|
15 |
| (c) An expedited hearing may be requested by:
|
16 |
| (i) a parent or guardian or student if the student is |
17 |
| at least 18 years of
age
or emancipated, if
there is a
|
18 |
| disagreement with regard to a determination that the |
19 |
| student's behavior
was not a
manifestation of the student's |
20 |
| disability, or if there is a disagreement
regarding the
|
21 |
| district's decision to move the student to an interim |
22 |
| alternative
educational setting for behavior at school, on |
23 |
| school premises, or at a school function involving a
weapon |
24 |
| or
and drug or for behavior at school, on school premises, |
25 |
| or at a school function involving the infliction of serious |
26 |
| bodily injury by the student,
violation as defined by IDEA |
27 |
| pursuant to Section 615(k)(1)(G)
615
(k)(1)(A)(ii) ; and
|
28 |
| (ii) a school district, if school personnel believe
|
29 |
| maintain that maintaining the current placement of the |
30 |
| student is substantially likely to result in injury to the |
31 |
| student or others pursuant to Section 615(k)(3)(A) of IDEA
|
32 |
| it is dangerous
for the
student to be in the current |
33 |
| placement (i.e. placement prior to removal to the
interim
|
|
|
|
09400SB2796sam001 |
- 35 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| alternative education setting) during the pendency of a due |
2 |
| process hearing
pursuant to
Section 615(K)(F) of IDEA .
|
3 |
| (d) A school district shall make a request in writing to |
4 |
| the State Board of
Education
and promptly mail a copy of the |
5 |
| request to the parents or
or guardian of the
student (if at |
6 |
| least 18 years of age or emancipated) at the
parents' or |
7 |
| student's last known address of the parents or guardian . A |
8 |
| request made by the parent ,
guardian, or student (if at least |
9 |
| 18 years of age or emancipated) shall
be made in
writing to the |
10 |
| superintendent of the school district in which the student
|
11 |
| resides, who shall
forward the request to the State Board of |
12 |
| Education within one business day of receipt
of
the request.
|
13 |
| Upon receipt of the request, the State Board of Education shall |
14 |
| appoint a due
process
hearing officer using a rotating |
15 |
| appointment system and shall notify the
hearing officer of
his |
16 |
| or her appointment.
|
17 |
| (e) A request for an expedited hearing initiated by a |
18 |
| district for the sole
purpose of
moving a student from his or |
19 |
| her current placement to an interim alternative
educational
|
20 |
| setting because of dangerous misconduct must be accompanied by |
21 |
| all
documentation that
substantiates the district's position |
22 |
| that maintaining the student in
his or her current
placement is |
23 |
| substantially likely to result in injury to the student or to
|
24 |
| others. Also, the
documentation shall include written |
25 |
| statements of (1) whether the district is represented by legal
|
26 |
| counsel or
intends to retain legal counsel; (2) the matters the |
27 |
| district believes to be
in dispute in the
case and the specific |
28 |
| relief being sought; and (3) the names of all witnesses
the |
29 |
| district
intends to call to testify at the hearing.
|
30 |
| (f) An expedited hearing requested by the student's parent |
31 |
| or student (if at least 18 years of age or emancipated)
or |
32 |
| guardian to
challenge
the removal of the student from his or |
33 |
| her current placement to an interim
alternative
educational |
34 |
| setting or a manifestation determination made by the district |
|
|
|
09400SB2796sam001 |
- 36 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| as
described
in IDEA shall include a written statement as to |
2 |
| the reason the parent or
guardian believes
that the action |
3 |
| taken by the district is not supported by substantial evidence
|
4 |
| and all
relevant documentation in the parent's or guardian's
|
5 |
| possession. Also, the
documentation
shall include written |
6 |
| statements of (1) whether the parent or guardian is represented |
7 |
| by legal
counsel or intends to retain legal
counsel; (2) the |
8 |
| matters the parent or guardian believes to be in dispute in
the |
9 |
| case and the specific relief
being sought; and (3) the names of |
10 |
| all witnesses the parent or guardian intends
to call to testify
|
11 |
| at the hearing.
|
12 |
| (g) Except as otherwise described in this subsection (g), |
13 |
| the school district shall be required to convene the resolution |
14 |
| meeting described in subsection (g-20) of Section 14-8.02a of |
15 |
| this Code unless the parties choose to utilize mediation in |
16 |
| place of the resolution meeting or waive the resolution meeting |
17 |
| in accordance with procedures described in subsection (g-30) of |
18 |
| Section 14-8.02a of this Code. The resolution meeting shall be |
19 |
| convened within 7 days after the date that the expedited |
20 |
| hearing request is received by the district.
|
21 |
| (h) The hearing officer shall not initiate or participate |
22 |
| in any ex parte
communications
with the parties, except to |
23 |
| arrange the date, time, and location of the
expedited hearing.
|
24 |
| The hearing officer shall contact the parties within 5 days
one |
25 |
| day after appointment and set
a hearing
date which shall be no |
26 |
| earlier than 15 calendar days following the school district's |
27 |
| receipt of the expedited hearing request or upon completion of |
28 |
| the resolution meeting, if earlier, and no later than 20 school
|
29 |
| 4 days after receipt of the expedited hearing request
|
30 |
| contacting parties . The hearing
officer shall
set a date no |
31 |
| less than 2 business days prior to the date of the expedited |
32 |
| hearing for the parties to exchange documentation and a list of |
33 |
| witnesses. The non-requesting party shall not be required to |
34 |
| submit a written response to the expedited hearing request. The |
|
|
|
09400SB2796sam001 |
- 37 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| parties may request mediation. The mediation shall not delay |
2 |
| the timeline set by the hearing officer for conducting the |
3 |
| expedited hearing. The length of the hearing shall not exceed 2 |
4 |
| days unless good cause is shown. Good cause shall be determined |
5 |
| by the hearing officer in his or her sole discretion and may |
6 |
| include the unavailability of a party or witness to attend the |
7 |
| scheduled hearing.
disclose and provide to each party any |
8 |
| evidence which is intended to be
submitted
into the
hearing |
9 |
| record no later than 2 days before the hearing. The length of |
10 |
| the
hearing shall not
exceed 2 days unless good cause is shown.
|
11 |
| (i) Any party to the hearing shall have the right to (1) be |
12 |
| represented by
counsel and
be accompanied and advised by |
13 |
| individuals with special knowledge or training
with
respect to |
14 |
| the problems of children with disabilities, at the party's own
|
15 |
| expense; (2)
present evidence and confront and cross-examine |
16 |
| witnesses; (3) move for the
exclusion
of witnesses from the |
17 |
| hearing until they are called to testify, provided,
however, |
18 |
| that this
provision may not be invoked to exclude the |
19 |
| individual designated by a party to
assist
that party or its |
20 |
| representative in the presentation of the case; (4) in
accord |
21 |
| with the
provisions of subsection (g-55)
(g) of Section |
22 |
| 14-8.02a, obtain a written or
electronic
verbatim
record of the |
23 |
| proceedings; and (5) obtain a written decision, including
|
24 |
| findings of fact and
conclusions of law, within 10 school
2
|
25 |
| days after the conclusion of the hearing.
|
26 |
| (j) The State Board of Education and the school district |
27 |
| shall share equally the
costs
of providing a written or |
28 |
| electronic verbatim record of the proceedings. Any
party may
|
29 |
| request that the hearing officer issue a subpoena to compel the |
30 |
| testimony of
witnesses or
the production of documents relevant |
31 |
| to the resolution of the hearing.
Whenever a person
refuses to |
32 |
| comply with any subpoena issued under this Section, the circuit
|
33 |
| court of the
county in which that hearing is pending, on |
34 |
| application of the impartial
hearing officer or
the party |
|
|
|
09400SB2796sam001 |
- 38 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| requesting the issuance of the subpoena, may compel compliance
|
2 |
| through the
contempt powers of the court in the same manner as |
3 |
| if the requirements of a
subpoena
issued by the court had been |
4 |
| disobeyed.
|
5 |
| (k) The impartial hearing officer shall issue a final |
6 |
| written decision, including
findings of fact and conclusions of |
7 |
| law, within 10 school
2 days after the conclusion of
the |
8 |
| hearing
and mail a copy of the decision to the parents , |
9 |
| guardian, or student (if the
student requests
the hearing), the |
10 |
| school district, the director of special education, legal
|
11 |
| representatives of
the parties, and the State Board of |
12 |
| Education.
|
13 |
| (l) The hearing officer presiding over the expedited |
14 |
| hearing shall hear only that
issue
or issues identified by IDEA |
15 |
| as proper for expedited hearings, leaving all
other issues to
|
16 |
| be heard under a separate request to be initiated and processed |
17 |
| in accordance
with the
hearing procedures provided for in this |
18 |
| Article and in accordance with the
implementing
regulations.
|
19 |
| (Source: P.A. 90-566, eff. 1-2-98.)
|
20 |
| (105 ILCS 5/14-8.02c new) |
21 |
| Sec. 14-8.02c. Due process hearing officers. |
22 |
| (a) The State Board of Education shall establish a corps of |
23 |
| hearing officers in accordance with this Section and may, with |
24 |
| the advice and approval of the Advisory Council on Education of |
25 |
| Children with Disabilities, adopt rules consistent with this |
26 |
| Section to establish the qualifications of and application |
27 |
| process for hearing officers. |
28 |
| (b) Hearing officers must, at a minimum, (i) possess a |
29 |
| master's or doctor's degree in education or another field |
30 |
| related to disability issues or a juris doctor degree; (ii) |
31 |
| have knowledge of and the ability to understand the |
32 |
| requirements of the federal Individuals with Disabilities |
33 |
| Education Act, Article 14 of this Code, the implementation of |
|
|
|
09400SB2796sam001 |
- 39 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| rules or regulations of these federal and State statutes, and |
2 |
| the legal interpretation of the statutes, rules, and |
3 |
| regulations by federal and State courts; (iii) have the |
4 |
| knowledge and ability to conduct hearings in accordance with |
5 |
| appropriate, standard, legal practice; and (iv) have the |
6 |
| knowledge and ability to render and write decisions in |
7 |
| accordance with appropriate, standard, legal practice. Current |
8 |
| employees of the State Board of Education, school districts, |
9 |
| special education cooperatives, regional service areas or |
10 |
| centers, regional educational cooperatives, State-operated |
11 |
| elementary and secondary schools, or private providers of |
12 |
| special education facilities or programs may not serve as |
13 |
| hearing officers. |
14 |
| (c) If, at any time, the State Board of Education |
15 |
| determines that additional hearing officers are needed, the |
16 |
| State Board of Education shall recruit hearing officer |
17 |
| candidates who meet the criteria set forth in subsection (b) of |
18 |
| this Section. |
19 |
| (d) Candidates shall be screened by a 7-member Screening |
20 |
| Committee consisting of the following: the Attorney General or |
21 |
| his or her designee; the State Superintendent of Education or |
22 |
| his or her designee; 3 members appointed by the State |
23 |
| Superintendent of Education, one of whom shall be a parent of |
24 |
| an individual who is or at one time was eligible to receive |
25 |
| special education and related services in an Illinois school |
26 |
| district, another of whom shall be a director of special |
27 |
| education for an Illinois school district or special education |
28 |
| joint agreement, and the other of whom shall be an adult with a |
29 |
| disability; and 2 members appointed by the Attorney General, |
30 |
| one of whom shall be a parent of an individual who is or at one |
31 |
| time was eligible to receive special education and related |
32 |
| services in an Illinois school district and the other of whom |
33 |
| shall be an experienced special education hearing officer who |
34 |
| is not a candidate for appointment under this Section. The |
|
|
|
09400SB2796sam001 |
- 40 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| chairperson of the Advisory Council on Education of Children |
2 |
| with Disabilities or his or her designee shall serve on the |
3 |
| Screening Committee as an ex-officio, non-voting member. |
4 |
| Appointments and reappointments to the Screening Committee |
5 |
| shall be for terms of 3 years. In the event that a member |
6 |
| vacates a seat on the Screening Committee prior to the |
7 |
| expiration of his or her term, a new member shall be appointed, |
8 |
| shall serve the balance of the vacating member's term, and |
9 |
| shall be eligible for subsequent reappointment. The Screening |
10 |
| Committee shall elect a chairperson from among its voting |
11 |
| members. Members of the Screening Committee shall serve without |
12 |
| compensation but shall be reimbursed by the State Board of |
13 |
| Education for their reasonable expenses. The Screening |
14 |
| Committee shall review hearing officer applications and |
15 |
| supporting information, interview candidates, and recommend |
16 |
| candidates to the Advisory Council on Education of Children |
17 |
| with Disabilities based upon objective criteria the Screening |
18 |
| Committee develops and makes available to the public. All |
19 |
| discussions and deliberations of the Screening Committee and |
20 |
| Advisory Council referenced anywhere in this Section |
21 |
| pertaining to the review of applications of hearing officer |
22 |
| candidates, the interviewing of hearing officer candidates, |
23 |
| the recommendation of hearing officer candidates for |
24 |
| appointment, and the recommendation of hearing officers for |
25 |
| reappointment are excepted from the requirements of the Open |
26 |
| Meetings Act, pursuant to item (15) of subsection (c) of |
27 |
| Section 2 of the Open Meetings Act. |
28 |
| (e) All hearing officer candidates recommended to the |
29 |
| Advisory Council on Education of Children with Disabilities |
30 |
| shall successfully complete initial training, as established |
31 |
| by the contract between the State Board of Education and the |
32 |
| training entity, as described in subsection (f), in order to be |
33 |
| eligible to serve as an impartial due process hearing officer. |
34 |
| The training shall include, at a minimum, instruction in |
|
|
|
09400SB2796sam001 |
- 41 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| federal and State law, rules, and regulations, federal |
2 |
| regulatory interpretations and State and federal court |
3 |
| decisions regarding special education and relevant general |
4 |
| educational issues, diagnostic procedures, information about |
5 |
| disabilities, instruction on conducting effective and |
6 |
| impartial hearings in accordance with appropriate, standard, |
7 |
| legal practice, and instruction in rendering and writing |
8 |
| hearing decisions in accordance with appropriate, standard, |
9 |
| legal practice. The training must be conducted in an unbiased |
10 |
| manner by educational and legal experts, including qualified |
11 |
| individuals from outside the public educational system. Upon |
12 |
| the completion of the initial training, the Advisory Council on |
13 |
| Education of Children with Disabilities, applying objective |
14 |
| selection criteria it has developed and made available to the |
15 |
| public, shall go into executive session and select the number |
16 |
| of hearing officers deemed necessary by the State Board of |
17 |
| Education from those candidates who have successfully |
18 |
| completed the initial training. Upon selecting the candidates, |
19 |
| the Advisory Council shall forward its recommendations to the |
20 |
| State Superintendent of Education for final selection. The |
21 |
| hearing officers appointed by the State Superintendent of |
22 |
| Education shall serve an initial term of one year, subject to |
23 |
| any earlier permissible termination by the State Board of |
24 |
| Education. |
25 |
| (f) The State Board of Education shall, through a |
26 |
| competitive application process, enter into a contract with an |
27 |
| outside entity to establish and conduct mandatory training |
28 |
| programs for hearing officers. The State Board of Education |
29 |
| shall also, through a competitive application process, enter |
30 |
| into a contract with an outside entity, other than the entity |
31 |
| providing mandatory training, to conduct an annual evaluation |
32 |
| of each hearing officer and to investigate complaints against |
33 |
| hearing officers, in accordance with procedures established by |
34 |
| the State Board of Education in consultation with the Screening |
|
|
|
09400SB2796sam001 |
- 42 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| Committee. The invitation for applications shall set forth |
2 |
| minimum qualifications for eligible applicants. Each contract |
3 |
| under this subsection (f) may be renewed on an annual basis, |
4 |
| subject to appropriation. The State Board of Education shall |
5 |
| conduct a new competitive application process at least once |
6 |
| every 3 years after the initial contract is granted. The |
7 |
| Screening Committee shall review the training proposals and |
8 |
| evaluation and investigation proposals and forward them, with |
9 |
| recommendations in rank order, to the State Board of Education. |
10 |
| (g) The evaluation and investigation entity described in |
11 |
| subsection (f) of this Section shall conduct an annual written |
12 |
| evaluation of each hearing officer and provide the evaluation |
13 |
| to the Screening Committee for its consideration in the |
14 |
| reappointment process. The evaluation shall include a review of |
15 |
| written decisions and any communications regarding a hearing |
16 |
| officer's conduct and performance by participants in impartial |
17 |
| due process hearings and their representatives. Each hearing |
18 |
| officer shall be provided with a copy of his or her written |
19 |
| evaluation report and shall have an opportunity, within 30 days |
20 |
| after receipt, to review the evaluation with the evaluation and |
21 |
| investigation entity and submit written comments. The annual |
22 |
| evaluation of each hearing officer, along with the hearing |
23 |
| officer's written comments, if any, shall be submitted to the |
24 |
| Screening Committee for consideration no later than April 1 of |
25 |
| each calendar year. The Screening Committee, based on objective |
26 |
| criteria and any evaluation reports prepared by the training |
27 |
| entity, shall, on an annual basis, recommend whether the |
28 |
| hearing officer should be reappointed for a one-year term and |
29 |
| shall forward its recommendations to the Advisory Council on |
30 |
| Education of Children with Disabilities. The Advisory Council |
31 |
| shall go into executive session and shall review the |
32 |
| recommendations of the Screening Committee for the purpose of |
33 |
| either ratifying or rejecting the recommendations of the |
34 |
| Screening Committee. The Advisory Council shall then forward |
|
|
|
09400SB2796sam001 |
- 43 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| its list of ratified and rejected appointees to the State |
2 |
| Superintendent of Education, who shall determine the final |
3 |
| selection of hearing officers for reappointment. Each |
4 |
| reappointed hearing officer shall serve a term of one year, |
5 |
| subject to any earlier permissible termination by the State |
6 |
| Board of Education. |
7 |
| (h) Hearing officers shall receive a base annual stipend |
8 |
| and per diem allowance for each hearing at a rate established |
9 |
| by the State Board of Education.
The State Board of Education |
10 |
| shall provide hearing officers with access to relevant court |
11 |
| decisions, impartial hearing officer decisions with |
12 |
| child-specific identifying information deleted, statutory and |
13 |
| regulatory changes, and federal regulatory interpretations. |
14 |
| The State Board of Education shall index and maintain a |
15 |
| reporting system of impartial due process hearing decisions and |
16 |
| shall make these decisions available for review by the public |
17 |
| after deleting child-specific identifying information. |
18 |
| (i) A hearing officer may be terminated by the State Board |
19 |
| of Education for just cause if, after written notice is |
20 |
| provided to the hearing officer, appropriate timely corrective |
21 |
| action is not taken. For purposes of this subsection (i), just |
22 |
| cause shall be (1) the failure or refusal to accept assigned |
23 |
| cases without good cause; (2) the failure or refusal to fulfill |
24 |
| his or her duties as a hearing officer in a timely manner; (3) |
25 |
| consistent disregard for applicable laws and rules in the |
26 |
| conduct of hearings; (4) consistent failure to conduct himself |
27 |
| or herself in a patient, dignified, and courteous manner to |
28 |
| parties, witnesses, counsel, and other participants in |
29 |
| hearings; (5) the failure to accord parties or their |
30 |
| representatives a full and fair opportunity to be heard in |
31 |
| matters coming before him or her; (6) violating applicable laws |
32 |
| regarding privacy and confidentiality of records or |
33 |
| information; (7) manifesting, by words or conduct, bias or |
34 |
| prejudice based upon race, sex, religion, disability, or |
|
|
|
09400SB2796sam001 |
- 44 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| national origin; (8) failure to recuse himself or herself from |
2 |
| a hearing in which he or she has a personal, professional, or |
3 |
| financial conflict of interest that he or she knew or should |
4 |
| have known existed at any time prior to or during the hearing; |
5 |
| (9) conviction in any jurisdiction of any felony or of a |
6 |
| misdemeanor involving moral turpitude; or (10) falsification |
7 |
| of a material fact on his or her application to serve as a |
8 |
| hearing officer. In addition, a hearing officer who, as a |
9 |
| result of events occurring after appointment, no longer meets |
10 |
| the minimum requirements set forth in this Section, shall be |
11 |
| disqualified to complete the balance of his or her term. |
12 |
| (105 ILCS 5/14-8.02d new)
|
13 |
| Sec. 14-8.02d. Evaluation of due process hearing system. |
14 |
| The State Board of Education shall monitor, review, and |
15 |
| evaluate the impartial due process hearing system on a regular |
16 |
| basis by a process that includes a review of written decisions |
17 |
| and evaluations by participants in impartial due process |
18 |
| hearings and their representatives. In conjunction with the |
19 |
| Annual State Report on Special Education Performance, the State |
20 |
| Board of Education shall submit data on the performance of the |
21 |
| due process hearing system, including data on timeliness of |
22 |
| hearings and an analysis of the issues and disability |
23 |
| categories underlying hearing requests during the period |
24 |
| covered by the Annual State Report. The data provided for the |
25 |
| Annual State Report must be submitted to the members of the |
26 |
| State Board of Education, the State Superintendent of |
27 |
| Education, the Advisory Council on Education of Children with |
28 |
| Disabilities, and the Screening Committee established under |
29 |
| Section 14-8.02c of this Code and must be made available to the |
30 |
| public.
|
31 |
| (105 ILCS 5/14-12.01) (from Ch. 122, par. 14-12.01)
|
32 |
| Sec. 14-12.01. Account of expenditures - Cost report - |
|
|
|
09400SB2796sam001 |
- 45 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| Reimbursement. Each school board shall keep an accurate, |
2 |
| detailed and separate account
of all monies paid out by it for |
3 |
| the maintenance of each of the types of
facilities, classes and |
4 |
| schools authorized by this Article for the
instruction and care |
5 |
| of pupils attending them and for the cost of their
|
6 |
| transportation, and shall annually report thereon indicating |
7 |
| the cost of
each such elementary or high school pupil for the |
8 |
| school year ending
June 30.
|
9 |
| Applications for preapproval for reimbursement for costs |
10 |
| of special
education must be first submitted through the office |
11 |
| of the regional
superintendent of schools to the State |
12 |
| Superintendent of Education on or
before 30 days after a |
13 |
| special class or service is started.
Applications shall set |
14 |
| forth a plan for special education established
and maintained |
15 |
| in accordance with this Article. Such applications shall
be |
16 |
| limited to the cost of construction and maintenance of special
|
17 |
| education facilities designed and utilized to house |
18 |
| instructional
programs, diagnostic services, other special |
19 |
| education services for children with disabilities and |
20 |
| reimbursement as provided in
Section 14-13.01.
Such |
21 |
| application shall not include the cost of construction or
|
22 |
| maintenance of any administrative facility separated from |
23 |
| special
education facilities designed and utilized to house |
24 |
| instructional
programs, diagnostic services, and other special |
25 |
| education services for
children with disabilities. |
26 |
| Reimbursement claims for
special education shall
be made as |
27 |
| follows:
|
28 |
| Each district shall file its claim computed in accordance |
29 |
| with rules
prescribed by the State Board of Education
for
|
30 |
| approval on forms prescribed by the State Superintendent of |
31 |
| Education.
Data used as a basis of reimbursement claims shall |
32 |
| be for the school
year ended on June 30 preceding. Each school |
33 |
| district shall transmit to the State Superintendent of
|
34 |
| Education its claims on or before
August 15. The State |
|
|
|
09400SB2796sam001 |
- 46 - |
LRB094 16298 NHT 55535 a |
|
|
1 |
| Superintendent of Education before approving any
such claims |
2 |
| shall determine their accuracy and whether they are based
upon |
3 |
| services and facilities provided under approved programs. Upon
|
4 |
| approval, vouchers for the amounts due the respective districts |
5 |
| shall be prepared
and submitted during each fiscal year as |
6 |
| follows: the first 3 vouchers
shall be prepared by the State |
7 |
| Superintendent of Education and transmitted
to the Comptroller |
8 |
| on the 30th day of September, December and March,
respectively, |
9 |
| and the final voucher, no later than June 20. If, after
|
10 |
| preparation and transmittal of the September 30 vouchers, any |
11 |
| claim has
been redetermined by the State Superintendent of |
12 |
| Education, subsequent
vouchers shall be adjusted in amount to |
13 |
| compensate for any overpayment
or underpayment previously |
14 |
| made. If the money appropriated by the General
Assembly for |
15 |
| such purpose for any year is insufficient, it shall be
|
16 |
| apportioned on the basis of the claims approved.
|
17 |
| Claims received at the State Board of Education after |
18 |
| August 15 shall
not be honored. Claims received by August 15 |
19 |
| may be amended until November
30.
|
20 |
| (Source: P.A. 91-764, eff. 6-9-00.)
|
21 |
| Section 99. Effective date. This Act takes effect July 1, |
22 |
| 2006.".
|