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90_SB0726
(105 ILCS 5/14-8,02a)
Amends the School Code to make a grammatical correction.
SDS/bill0031/jwp
SDS/bill0031/jwp
1 AN ACT to amend the School Code by changing Section
2 14-8.02a.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The School Code is amended by changing
6 Section 14-8.02a as follows:
7 (105 ILCS 5/14-8.02a)
8 Sec. 14-8.02a. Impartial due process hearing; civil
9 action.
10 (a) This Section (rather than the impartial due process
11 procedures of subsections (h) through (o) of Section 14-8.02,
12 which shall continue to apply only to those impartial due
13 process hearings that are requested under this Article before
14 July 1, 1997) shall apply to all impartial due process
15 hearings requested on or after July 1, 1997.
16 (b) The State Board of Education shall establish an
17 impartial due process hearing system, including a corps of
18 hearing officers, in accordance with this Section and shall,
19 with the advice and approval of the Advisory Council on
20 Education of Children with Disabilities, promulgate rules and
21 regulations consistent with this Section to establish the
22 qualifications of hearing officers and the rules and
23 procedures for due process hearings. The State Board of
24 Education shall recruit candidates for due process hearing
25 officers who meet the criteria set forth in this Section.
26 Candidates shall be screened by a 7-member Screening
27 Committee consisting of the following: the Attorney General,
28 or his or her designee; the State Superintendent of
29 Education, or his or her designee; 3 members appointed by the
30 State Superintendent of Education, one of whom shall be a
31 parent of a student eligible for special education, another
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1 of whom shall be a director of special education for an
2 Illinois school district or special education joint
3 agreement, and the other of whom shall be an adult with a
4 disability; and 2 members appointed by the Attorney General,
5 one of whom shall be a parent of a student eligible for
6 special education and the other of whom shall be an
7 experienced special education hearing officer who is not a
8 candidate for appointment under this Section. The members of
9 the Screening Committee shall be appointed no later than 60
10 days following the effective date of this amendatory Act of
11 1996. The chairperson of the Advisory Council on Education
12 of Children with Disabilities or his or her designee shall
13 serve on the Screening Committee as an ex-officio non-voting
14 member. Three members of the Screening Committee shall be
15 appointed for initial terms of 2 years, and 4 members shall
16 be appointed for initial terms of 3 years, by using a lottery
17 system. Subsequent appointments and reappointments shall be
18 for terms of for 3 years. The Screening Committee shall
19 elect a chairperson from among its voting members. Members
20 of the Screening Committee shall serve without compensation
21 but shall be reimbursed by the State Board of Education for
22 their expenses. The Screening Committee shall review
23 applications and supporting information, interview
24 candidates, and recommend applicants to the Advisory Council
25 on Education of Children with Disabilities based upon
26 objective criteria it develops and makes available to the
27 public. The number of candidates recommended shall equal
28 150% of the number deemed necessary by the State Board of
29 Education.
30 (c) The application process shall require each applicant
31 to provide a comprehensive disclosure of his or her
32 professional background and work experience. Applicants must
33 hold at least a masters level degree, a juris doctor degree,
34 or a bachelors degree with relevant experience. Current
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1 employees of the State Board of Education, local school
2 districts, special education cooperatives, regional service
3 areas or centers, regional educational cooperatives,
4 state-operated elementary and secondary schools, or private
5 providers of special education facilities or programs shall
6 be disqualified from serving as impartial due process hearing
7 officers. Nothing in this Section shall be construed to
8 prohibit retired school personnel and part-time contractual
9 school personnel who serve in a consulting capacity from
10 serving as hearing officers. Applications by individuals on
11 the State Board of Education's list of eligible Level I due
12 process hearing officers or Level II review officers when the
13 initial recruitment of due process hearing officers is
14 conducted under this Section shall be considered if they meet
15 the qualifications under this subsection.
16 (d) The State Board of Education shall, through a
17 competitive application process, enter into a contract with
18 an outside entity to establish and conduct mandatory training
19 programs for impartial due process hearing officers and an
20 annual evaluation of each impartial due process hearing
21 officer that shall include a written evaluation report. The
22 invitation for applications shall set forth minimum
23 qualifications for eligible applicants. Each contract under
24 this subsection may be renewed on an annual basis subject to
25 appropriations. The State Board of Education shall conduct a
26 new competitive application process at least once every 3
27 years after the initial contract is granted. The Screening
28 Committee established pursuant to subsection (b) of this
29 Section shall review the training proposals and forward them,
30 with recommendations in rank order, to the State Board of
31 Education. All impartial hearing officer candidates
32 recommended to the Advisory Council on Education of Children
33 with Disabilities shall successfully complete initial and all
34 follow-up trainings, as established by the contract between
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1 the State Board of Education and the training entity, in
2 order to be eligible to serve as an impartial due process
3 hearing officer. The training curriculum shall include, at a
4 minimum, instruction in federal and State law, rules, and
5 regulations, federal regulatory interpretations and court
6 decisions regarding special education and relevant general
7 education issues, diagnostic procedures, information about
8 disabilities, and techniques for conducting effective and
9 impartial hearings, including order of presentation. The
10 training shall be conducted in an unbiased manner by
11 education and legal experts, including qualified individuals
12 from outside the public education system. Upon the
13 completion of initial impartial due process hearing officer
14 training, the Advisory Council on Education of Children with
15 Disabilities, applying objective selection criteria it has
16 developed and made available to the public, shall go into
17 executive session and select the number of active impartial
18 due process hearing officers deemed necessary by the State
19 Board of Education from those candidates who have
20 successfully completed the initial training. Fifty percent
21 of the impartial due process hearing officers appointed shall
22 serve initial terms of 2 years, and the remaining 50% shall
23 serve initial terms of one year, such terms to be determined
24 by using a lottery system. After the initial term all
25 reappointments shall be for a term of 2 years. The Screening
26 Committee, based on its objective selection criteria and the
27 annual evaluation reports prepared by the training entity,
28 shall recommend whether the hearing officers whose terms are
29 expiring should be reappointed and shall transmit its
30 recommendations to the State Board of Education. If, at any
31 time, the State Board of Education, with the advice of the
32 Advisory Council on Education of Children with Disabilities,
33 determines that additional hearing officers are needed, the
34 hearing officer selection process described in this Section
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1 shall be reopened to select the number of additional hearing
2 officers deemed necessary by the State Board of Education.
3 Impartial due process hearing officers shall receive a
4 base annual stipend and per diem allowance for each hearing
5 at a rate established by the State Board of Education.
6 The State Board of Education shall provide impartial due
7 process hearing officers with access to relevant court
8 decisions, impartial hearing officer decisions with
9 child-specific identifying information deleted, statutory and
10 regulatory changes, and federal regulatory interpretations.
11 The State Board of Education shall index and maintain a
12 reporting system of impartial due process hearing decisions
13 and shall make such decisions available for review by the
14 public after deleting child-specific identifying information.
15 (e) An impartial due process hearing officer shall be
16 terminated by the State Board of Education for just cause if,
17 after written notice is provided, appropriate timely
18 corrective action is not taken. For purposes of this
19 subsection just cause shall be (1) failure or refusal to
20 accept assigned cases without good cause; (2) failure or
21 refusal to fulfill duties as a hearing officer in a timely
22 manner; (3) consistent disregard for applicable laws and
23 regulations in the conduct of hearings; (4) consistent
24 failure to conduct himself or herself in a patient,
25 dignified, and courteous manner to parties, witnesses,
26 counsel, and other participants in hearings; (5) failure to
27 accord parties or their representatives a full and fair
28 opportunity to be heard in matters coming before him or her;
29 (6) violating applicable laws regarding privacy and
30 confidentiality of records or information; (7) manifesting,
31 by words or conduct, bias or prejudice based upon race, sex,
32 religion, disability, or national origin; (8) failure to
33 recuse himself or herself from a hearing in which he or she
34 has a personal, professional, or financial conflict of
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1 interest which he or she knew or should have known existed at
2 any time prior to or during the hearing; (9) conviction in
3 any jurisdiction of any felony or of a misdemeanor involving
4 moral turpitude; and (10) falsification of a material fact on
5 his or her application to serve as a due process hearing
6 officer. In addition, an impartial hearing officer who, as a
7 result of events occurring after appointment, no longer meets
8 the minimum requirements set forth in this Section, shall be
9 disqualified to complete the balance of his or her contract
10 term.
11 The State Board of Education shall monitor, review, and
12 evaluate the impartial due process hearing system on a
13 regular basis by a process that includes a review of written
14 decisions and evaluations by participants in impartial due
15 process hearings and their representatives. The State Board
16 of Education shall prepare an annual written report no later
17 than July 1 of each year, beginning in 1998, evaluating the
18 impartial due process hearing system. The reports shall be
19 submitted to the members of the State Board of Education, the
20 State Superintendent of Education, the Advisory Council on
21 Education of Children with Disabilities, and the Screening
22 Committee and shall be made available to the public.
23 The training entity under subsection (d) shall conduct
24 annual evaluations of each hearing officer and shall prepare
25 written evaluation reports to be provided to the Screening
26 Committee for its consideration in the reappointment process.
27 The evaluation process shall include a review of written
28 decisions and evaluations by participants in impartial due
29 process hearings and their representatives. Each hearing
30 officer shall be provided with a copy of his or her
31 evaluation report and shall have an opportunity to review the
32 report with the training entity and submit written comments.
33 (f) An impartial due process hearing shall be convened
34 upon the request of a parent or guardian, student if at least
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1 18 years of age or emancipated, or a school district. A
2 school district shall make a request in writing to the State
3 Board of Education and promptly mail a copy of the request to
4 the parents or guardian of the student at their last known
5 address. A request made by the parent, guardian, or student
6 shall be made in writing to the superintendent of the school
7 district in which the student resides, who shall forward the
8 request to the State Board of Education within 5 days of
9 receipt of the request. Within 5 days after receipt of the
10 request the State Board of Education shall appoint a due
11 process hearing officer using a rotating appointment system
12 and shall notify the hearing officer of his or her
13 appointment. No person who is an employee of a school
14 district that is involved in the education or care of the
15 student shall conduct the hearing. A hearing officer having
16 a personal or professional interest that would conflict with
17 his or her objectivity in the hearing shall so notify the
18 State Board of Education and shall be replaced by the next
19 scheduled impartial due process hearing officer under the
20 rotation system. For purposes of this subsection an assigned
21 hearing officer shall be considered to have a conflict of
22 interest if, at any time prior to the issuance of his or her
23 written decision, he or she knows or should know that he or
24 she may receive remuneration from a party to the hearing
25 within 3 years following the conclusion of the due process
26 hearing. A party to a due process hearing shall be permitted
27 one substitution of hearing officer as a matter of right, in
28 accordance with procedures established by the rules adopted
29 by the State Board of Education under this Section. The
30 State Board of Education shall randomly select and appoint
31 another hearing officer within 5 days after receiving notice
32 that the appointed hearing officer is ineligible to serve or
33 upon receiving a proper request for substitution of hearing
34 officer. If a party withdraws its request for a due process
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1 hearing after a hearing officer has been appointed, that
2 hearing officer shall retain jurisdiction over a subsequent
3 hearing that involves the same parties and is requested
4 within one year from the date of withdrawal of the previous
5 request, unless that hearing officer is unavailable.
6 A former employee or current resident of the school
7 district, special education cooperative, or other public
8 entity involved in the due process hearing shall recuse
9 himself or herself. A hearing officer shall disclose any
10 actual or potential conflicts of interests to the parties
11 upon learning of those conflicts. Any party may raise facts
12 that constitute a conflict of interest for the hearing
13 officer at any time before or during the hearing and may move
14 for recusal.
15 For purposes of this Section, "days" shall be computed in
16 accordance with Section 1.11 of the Statute on Statutes.
17 (g) Impartial due process hearings shall be conducted
18 pursuant to this Section and rules and regulations
19 promulgated by the State Board of Education consistent with
20 this Section and other governing laws and regulations. The
21 hearing shall be closed to the public unless the parents or
22 guardian request that the hearing be open to the public. The
23 parents or guardian involved in the hearing shall have the
24 right to have the student who is the subject of the hearing
25 present. The hearing shall be held at a time and place which
26 are reasonably convenient to the parties involved. Upon the
27 request of a party, the hearing officer shall hold the
28 hearing at a location neutral to the parties if the hearing
29 officer determines that there is no cost for securing the use
30 of the neutral location. Once appointed, the impartial due
31 process hearing officer shall not communicate with the State
32 Board of Education or its employees concerning the hearing,
33 except that, where circumstances require, communications for
34 administrative purposes that do not deal with substantive or
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1 procedural matters or issues on the merits are authorized,
2 provided that the hearing officer promptly notifies all
3 parties of the substance of the communication as a matter of
4 record.
5 The hearing officer shall convene a prehearing conference
6 no later than 14 days before the scheduled date for the due
7 process hearing for the general purpose of aiding in the
8 fair, orderly, and expeditious conduct of the hearing. The
9 hearing officer shall provide the parties with written notice
10 of the prehearing conference at least 10 days in advance of
11 the conference. The written notice shall require the parties
12 to notify the hearing officer by a date certain whether they
13 intend to participate in the prehearing conference. The
14 hearing officer may conduct the prehearing conference in
15 person or by telephone. Each party shall disclose at the
16 prehearing conference (1) whether it is represented by legal
17 counsel or intends to retain legal counsel; (2) the matters
18 it believes to be in dispute in the case and the specific
19 relief being sought; (3) whether there are any additional
20 evaluations for the student that it intends to introduce into
21 the hearing record that have not been previously disclosed to
22 the other parties; (4) a list of all documents it intends to
23 introduce into the hearing record, including the date and a
24 brief description of each document; and (5) the names of all
25 witnesses it intends to call to testify at the hearing. The
26 hearing officer shall specify the order of presentation to be
27 used at the hearing. If the prehearing conference is held by
28 telephone, the parties shall transmit the information
29 required in this paragraph in such a manner that it is
30 available to all parties at the time of the prehearing
31 conference. The State Board of Education shall, by rule,
32 establish additional procedures for the conduct of prehearing
33 conferences. The impartial due process hearing officer shall
34 not initiate or participate in any ex parte communications
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1 with the parties, except to arrange the date, time, and
2 location of the prehearing conference and due process hearing
3 and to receive confirmation of whether a party intends to
4 participate in the prehearing conference. The parties shall
5 disclose and provide to each other any evidence which they
6 intend to submit into the hearing record no later than 5 days
7 before the hearing. Any party to a hearing has the right to
8 prohibit the introduction of any evidence at the hearing that
9 has not been disclosed to that party at least 5 days before
10 the hearing.
11 The school district shall present evidence that the
12 special education needs of the child have been appropriately
13 identified and that the special education program and related
14 services proposed to meet the needs of the child are
15 adequate, appropriate, and available. Any party to the
16 hearing shall have the right to (1) be represented by counsel
17 and be accompanied and advised by individuals with special
18 knowledge or training with respect to the problems of
19 children with disabilities, at the party's own expense; (2)
20 present evidence and confront and cross-examine witnesses;
21 (3) move for the exclusion of witnesses from the hearing
22 until they are called to testify, provided, however, that
23 this provision may not be invoked to exclude the individual
24 designated by a party to assist that party or its
25 representative in the presentation of the case; (4) obtain a
26 written or electronic verbatim record of the proceedings
27 within 30 days of receipt of a written request from the
28 parents by the school district; and (5) obtain a written
29 decision, including findings of fact and conclusions of law,
30 within 10 days after the conclusion of the hearing. If at
31 issue, the school district shall present evidence that it has
32 properly identified and evaluated the nature and severity of
33 the student's suspected or identified disability and that, if
34 the student has been or should have been determined eligible
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1 for special education and related services, that it is
2 providing or has offered a free appropriate public education
3 to the student in the least restrictive environment,
4 consistent with procedural safeguards and in accordance with
5 an individualized educational program. At any time prior to
6 the conclusion of the hearing, the impartial due process
7 hearing officer shall have the authority to require
8 additional information and order independent evaluations for
9 the student at the expense of the school district. The State
10 Board of Education and the school district shall share
11 equally the costs of providing a written or electronic
12 verbatim record of the proceedings. Any party may request
13 that the due process hearing officer issue a subpoena to
14 compel the testimony of witnesses or the production of
15 documents relevant to the resolution of the hearing.
16 Whenever a person refuses to comply with any subpoena issued
17 under this Section, the circuit court of the county in which
18 that hearing is pending, on application of the impartial
19 hearing officer or the party requesting the issuance of the
20 subpoena, may compel compliance through the contempt powers
21 of the court in the same manner as if the requirements of a
22 subpoena issued by the court had been disobeyed.
23 (h) The impartial hearing officer shall issue a written
24 decision, including findings of fact and conclusions of law,
25 within 10 days after the conclusion of the hearing and mail a
26 copy of the decision to the parents, guardian, or student (if
27 the student requests the hearing), the school district, the
28 director of special education, legal representatives of the
29 parties, and the State Board of Education. Unless the hearing
30 officer has granted specific extensions of time at the
31 request of a party, a final decision, including the
32 clarification of a decision requested under this subsection,
33 shall be reached and mailed to the parties named above not
34 later than 45 days after the request for hearing is received
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1 by the school district, public agency, or the State Board of
2 Education, whichever is sooner. The decision shall specify
3 the educational and related services that shall be provided
4 to the student in accordance with the student's needs. The
5 hearing officer shall retain jurisdiction for the sole
6 purpose of considering a request for clarification of the
7 final decision submitted in writing by a party to the
8 impartial hearing officer within 5 days after receipt of the
9 decision. A copy of the request for clarification shall
10 specify the portions of the decision for which clarification
11 is sought and shall be mailed to all parties of record and to
12 the State Board of Education. The request shall operate to
13 stay implementation of those portions of the decision for
14 which clarification is sought, pending action on the request
15 by the hearing officer, unless the parties otherwise agree.
16 The hearing officer shall issue a clarification of the
17 specified portion of the decision or issue a partial or full
18 denial of the request in writing within 10 days of receipt of
19 the request and mail copies to all parties to whom the
20 decision was mailed. This subsection does not permit a party
21 to request, or authorize a hearing officer to entertain,
22 reconsideration of the decision itself. The statute of
23 limitations for seeking review of the decision shall be
24 tolled from the date the request is submitted until the date
25 the hearing officer acts upon the request. Upon the filing
26 of a civil action pursuant to subsection (i) of this Section,
27 the hearing officer shall no longer exercise jurisdiction
28 over the case. The hearing officer's decision shall be
29 binding upon the school district and the parents or guardian
30 unless a civil action is commenced.
31 (i) Any party to an impartial due process hearing
32 aggrieved by the final written decision of the impartial due
33 process hearing officer shall have the right to commence a
34 civil action with respect to the issues presented in the
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1 impartial due process hearing. That civil action shall be
2 brought in any court of competent jurisdiction within 120
3 days after a copy of the decision of the impartial due
4 process hearing officer is mailed to the party as provided in
5 subsection (h). The civil action authorized by this
6 subsection shall not be exclusive of any rights or causes of
7 action otherwise available. The commencement of a civil
8 action under this subsection shall operate as a supersedeas.
9 In any action brought under this subsection the Court shall
10 receive the records of the impartial due process hearing,
11 shall hear additional evidence at the request of a party,
12 and, basing its decision on the preponderance of the
13 evidence, shall grant such relief as the court determines is
14 appropriate. In any instance where a school district
15 willfully disregards applicable regulations or statutes
16 regarding a child covered by this Article, and which
17 disregard has been detrimental to the child, the school
18 district shall be liable for any reasonable attorney's fees
19 incurred by the parent or guardian in connection with
20 proceedings under this Section.
21 (j) During the pendency of any administrative or
22 judicial proceeding conducted pursuant to this Section,
23 unless the school district and the parents or guardian of the
24 student otherwise agree, the student shall remain in his or
25 her present educational placement and continue in his or her
26 present eligibility status and special education and related
27 services, if any. If the hearing officer orders a change in
28 the eligibility status, educational placement, or special
29 education and related services of the student, that change
30 shall not be implemented until 30 days have elapsed following
31 the date the hearing officer's decision is mailed to the
32 parties in order to allow any party aggrieved by the decision
33 to commence a civil action to stay implementation of the
34 decision. If applying for initial admission to the school
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1 district, the student shall, with the consent of the parents
2 or guardian, be placed in the school district program until
3 all such proceedings have been completed. The costs for any
4 special education and related services or placement incurred
5 following 60 school days after the initial request for
6 evaluation shall be borne by the school district if the
7 services or placement is in accordance with the final
8 determination as to the special education and related
9 services or placement that must be provided to the child,
10 provided that during that 60 day period there have been no
11 delays caused by the child's parent or guardian.
12 (k) Whenever the parents or guardian of a child of the
13 type described in Section 14-1.02 are not known, are
14 unavailable, or the child is a ward of the State, a person
15 shall be assigned to serve as surrogate parent for the child
16 in matters relating to the identification, evaluation, and
17 educational placement of the child and the provision of a
18 free appropriate public education to the child. Persons
19 shall be assigned as surrogate parents by the State
20 Superintendent of Education. The State Board of Education
21 shall promulgate rules and regulations establishing
22 qualifications of those persons and their responsibilities
23 and the procedures to be followed in making assignments of
24 persons as surrogate parents. Surrogate parents shall not be
25 employees of the school district, an agency created by joint
26 agreement under Section 10-22.31, an agency involved in the
27 education or care of the student, or the State Board of
28 Education. Services of any person assigned as surrogate
29 parent shall terminate if the parent or guardian becomes
30 available unless otherwise requested by the parents or
31 guardian. The assignment of a person as surrogate parent at
32 no time supersedes, terminates, or suspends the parents' or
33 guardians' legal authority relative to the child. Any person
34 participating in good faith as surrogate parent on behalf of
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1 the child before school officials or a hearing officer shall
2 have immunity from civil or criminal liability that otherwise
3 might result by reason of that participation, except in cases
4 of willful and wanton misconduct.
5 (l) At all stages of the hearing the hearing officer
6 shall require that interpreters be made available by the
7 school district for persons who are deaf or for persons whose
8 normally spoken language is other than English.
9 (m) If any provision of this Section or its application
10 to any person or circumstance is held invalid, the invalidity
11 of that provision or application does not affect other
12 provisions or applications of the Section that can be given
13 effect without the invalid application or provision, and to
14 this end the provisions of this Section are severable, unless
15 otherwise provided by this Section.
16 (Source: P.A. 89-652, eff. 8-14-96.)