Section 337.30  The Service Appeal Process

When the issue is the removal or placement of a child, the service appeal process for the Department of Children and Family Services consists of a fair hearing after a clinical placement review of the placement decision pursuant to subsection (c) of this Section.  In all other cases, the service appeal process for the Department of Children and Family Services consists of a mediation, which is optional, and a fair hearing.  Initiation of a service appeal does not preclude ongoing discussion between the parties to resolve the appealed issues. If mediation resolves the issues, an agreement is drawn up with the assistance of the mediator and signed by the parties. In some instances the issue on appeal is too immediate to await the final administrative decision on the action.  An emergency review may be held in lieu of mediation on the specific issues, and an interim decision will be issued by the reviewer pending the fair hearing and final administrative decision. Mediation and emergency review is not available to any party when the issue is removal or change of placement of a child.

a)         Mediation

1)         The Department shall offer mediation to an appellant within 30 calendar days from the date of appeal in an attempt to resolve his or her issues.  The appellant may accept or reject an offer to participate in mediation.  No issues addressed and determined by an emergency review may be addressed in mediation. If mediation is successful, an agreement is drawn up, with assistance by the mediator, and signed by the parties.  This constitutes a resolution of the fair hearing, but the appellant may reinstate the request for hearing if the agreement is violated.

2)         If the dispute is not resolved in mediation, or if the appellant rejects the mediation agreement and the Department receives written notice of this rejection at least 15 calendar days after the mediation session, the appellant may then proceed to the fair hearing.

3)         The individual conducting the mediation shall be trained as a mediator and shall have no prior involvement in the case.

b)         Emergency Review

            An emergency review allows for an interim decision pending a fair hearing and can be requested by any party. The request for an emergency review must be in writing and shall be submitted to the Administrative Hearings Unit, Department of Children and Family Services, 406 E. Monroe, Springfield, Illinois 62701.  The emergency review must be requested within ten calendar days after the date of an appeal.  A determination will be made whether the issues are appropriate for emergency review.  If they are appropriate, the Department shall schedule an emergency review and the reviewer shall issue a decision, which shall include any corrective orders, within ten calendar days from the date of the request for emergency review.  The Department shall implement the order within five calendar days from the date the decision was issued by the reviewer.  An emergency review is held to consider only the following issues on appeal:

1)         Lack of Timely Notice Due to Imminent Risk of Harm

            A party may request an emergency review within ten calendar days after the date of appeal on any issue, except placement, where the Department or provider agency has taken action without timely notice because the child was determined to be at imminent risk of harm.  The reviewer shall consider only whether imminent risk of harm existed to justify the Department or provider agency action without timely notice.  If the reviewer determines imminent risk of harm did not exist, the reviewer shall order corrective action.

2)         Continuing Services Pertaining to Changes in Family Visitation During the Service Appeal

            Where services pertaining to the family visitation plan remain unchanged because an appeal has been requested within ten calendar days after the date of notice, a party may request an emergency review, if that party has reasonable cause to believe that imminent risk of harm to the child will result if services remain unchanged during the appeal process.  The only issue to be considered by the reviewer is whether imminent risk of harm to the child is likely to result from the stay of action.  If the reviewer determines imminent risk of harm to the child is likely to result, the reviewer may order corrective action.

c)         Clinical Placement Review

1)         When the issue is the removal of a child or change of placement, the party objecting to the removal or change of placement must request and complete a clinical placement review before filing a request for a service appeal.  The request for a clinical placement review must be made within 3 working days after receiving the notice of change of placement.

2)         During the clinical placement review there will be a review of the current placement, the reason for the disruption or change of placement, the child's needs, and appropriateness and stability of the proposed placement.

3)         If an appeal is taken from the final decision of a clinical placement review, the child shall be placed in accordance with that decision during the pendency of the appeal.

d)         Fair Hearing

            At a fair hearing, the administrative law judge conducts a hearing in which the Department and all parties may present evidence supporting their position. The administrative law judge then makes a recommendation to the Director of the Department based on the evidence presented at the hearing.

1)         At a fair hearing for service appeals of clinical placement review decisions, the burden of proof shall be on the appellant to show by a preponderance of the evidence that the decision made by the clinical placement reviewer was not consistent with the child's needs regarding safety, well being, and permanency.

2)         At all other fair hearings, the burden of proof shall be on the Department to show by a preponderance of the evidence that the decision made was consistent with the child's needs regarding safety, well being, and permanency.

(Source:  Amended at 26 Ill. Reg. 6246, effective June 1, 2002)