Section 828.5  Definitions

 

Definitions for this Part can be found at 89 Ill. Adm. Code 751.

 

(Source:  Added at 37 Ill. Reg. 6358, effective April 25, 2013)

 

Section 828.10  Scope and Purpose

 

This Part sets forth the procedures for appealing decisions made by the Schools and the rights of the students and other involved parties.  The Schools shall follow the procedures set forth in the Illinois State Board of Education's (ISBE) Due Process System (23 Ill. Adm. Code,  Subpart J).  If there are any discrepancies between this Part and the rules of ISBE, the rules of ISBE shall be utilized.

 

(Source:  Amended at 37 Ill. Reg. 6358, effective April 25, 2013)

 

Section 828.20  General Information

 

Any and all notices and communications made pursuant to this Part shall be in writing, in a language that the student understands, unless the student is unable to communicate in writing.  All non-written communications must be documented.

 

Section 828.30  Disciplinary Appeals

 

Disciplinary actions taken as a result of simple infractions listed in the Schools' Rights, Responsibilities and Procedures Handbook are not appealable under this Part.  This handbook is provided to parents or guardians and students annually.  A student or parent or guardian has the right and is encouraged to speak with the principal, dean of students or his or her designee, or the superintendent concerning minor discipline taken as a result of simple infractions listed in the Schools' Rights, Responsibilities and Procedures Handbook.  Minor discipline is appealable in accordance with 89 Ill. Adm. Code 827.40.

 

(Source:  Amended at 37 Ill. Reg. 6358, effective April 25, 2013)

 

Section 828.40  What May Not be Appealed

 

a)         The following matters are not appealable under this Part, but are appealable under the Department of Human Services-Division of Rehabilitation Services

(DHS-DRS) rules found at 89 Ill. Adm. Code 510 (Appeals and Hearings).

 

1)         Matters concerning sex equity or discrimination on the basis of sex as prohibited by the Illinois School Code [105 ILCS 5/10-22.5 and 27-1] and the Education Amendments of 1972 (20 USC 1681).  Matters of sex equity may ultimately be appealed to the State Superintendent of Education.

 

2)         Matters concerning student records as set forth in the Illinois School Student Records Act [105 ILCS 10] and the Family Educational Rights and Privacy Act of 1974 (FERPA) (20 USC 1232g).

 

3)         Matters concerning Vocational Rehabilitation Services under the federal Rehabilitation Act of 1973, as amended (29 USC 701 et seq.).

 

b)         The following matters are not appealable under this Part:

 

1)         Changes in services or procedures over which DHS-DRS exercises no discretion or control.

 

2)         Issues related to the legality of DHS-DRS rules.

 

3)         Changes in services or procedures that are mandated by federal or State law or regulation.

 

(Source:  Amended at 37 Ill. Reg. 6358, effective April 25, 2013)

 

Section 828.50  Impartial Due Process Hearing

 

a)         A parent, guardian or student may request an impartial due process hearing.

 

b)         A hearing may be requested for, but not limited to, the following reasons:

 

1)         Objection to signing consent for a proposed case study evaluation or initial placement.

 

2)         Failure of the School, upon request of the parents, guardians, other persons having primary care and custody of the student, the student, or ISBE to provide a case study evaluation.

 

3)         Failure of a local school district to consider evaluations completed by qualified professional personnel outside the local school district.

 

4)         Objection to a proposed special education placement, i.e., an initial placement, a continuation of a previous placement, or a change in the placement.

 

5)         Termination of a special education placement.

 

6)         Failure of the School to provide a special education placement consistent with the finding of the case study evaluation and the recommendations of the Eligibility Review (see 89 Ill. Adm. Code 795).

 

7)         Failure of the School to provide the least restrictive special education placement appropriate to the student's needs.

 

8)         Provision of special education instructional or resource programs or related services in an amount insufficient to meet the student's needs.

 

9)         Recommendation for the graduation of a student.

 

10)         Failure of the School to comply with any provision of this Part.

 

c)         A hearing may be conducted via video conference or teleconference.

 

d)         Receipt of a request for an impartial due process hearing shall cause the student to remain in his or her current educational placement, unless a mutual agreement is reached between the parents or guardians and the School.

 

(Source:  Amended at 37 Ill. Reg. 6358, effective April 25, 2013)

 

Section 828.60  Procedures for Hearing Request

 

The School, the parent or guardian of any student, or the student may request an impartial due process hearing.  A request for a hearing by a parent, guardian or student shall be made in writing to the superintendent of the School.

 

a)         If the School makes the request, a written request shall be sent to ISBE, attention Division of Program Compliance, in Springfield, and at the same time a copy shall be sent to the other party.  This letter shall include the information set forth in subsections (b)(1)(A), (C) and (D) of this Section.

 

b)         Within 5 days after the School receives a request for a hearing from a parent, guardian or  student, the School shall:

 

1)         Send a certified letter to the Division of Program Compliance requesting the appointment of an impartial due process hearing officer.  This letter shall be delivered by a means that provides written evidence of the delivery and shall include:

 

A)        the name, address and telephone number of the student and the parent or guardian, and of the person making the request for the hearing, if it is someone other than the student, parent or guardian;

 

B)        the date on which the request for the hearing was received by the School;

 

C)        the nature of the controversy to be resolved;

 

D)        the primary language spoken by the parents or guardian and student; and

 

E)        a copy of the request from the parent, guardian or student.

 

2)         Send to the person requesting the hearing, by certified mail or other means providing written evidence of delivery, a copy of the letter sent to ISBE.

 

A)        If the hearing has been requested by someone other than the student's parents or guardians, the School shall inform the parents or guardians by certified mail of the request and invite them to participate in the proceedings.

 

B)        Copies of all correspondence pertaining to impartial due process hearings shall be forwarded to the DHS-DRS Director, who will notify and distribute correspondence to the appropriate administrators and units within DHS-DRS.

 

(Source:  Amended at 37 Ill. Reg. 6358, effective April 25, 2013)

 

Section 828.70  Denial of Hearing Request

 

A request for an impartial due process hearing may not be denied for any reason.

 

Section 828.80  Rights of the Parties Prior to the Hearing

 

a)         The parties have the right to be represented at their own expense by counsel, or to be represented and assisted by other persons having special knowledge of this Part.  The School shall inform the parents or guardians of any free or low cost legal services that may be available in their area and of the availability of publicly funded advocacy services.

 

b)         The parents or guardians may inspect and review all records pertaining to their child and, subject to the provisions of 23 Ill. Adm. Code 375.50 (Student Records), may obtain copies of any such records at their own expense.

 

c)         The parents or guardians shall have access to the School's list of independent evaluators and may obtain an independent evaluation of their child at their own expense.  If acquisition of a completed independent evaluation requires a delay in convening the hearing, the parents or guardians shall request the delay as provided in Section 828.100(c).  The hearing officer shall delay the hearing until the independent evaluation is completed, the report is available, and the opposing party has been afforded, in the judgment of the hearing officer, a reasonable opportunity to review it.  The parents or guardians may ask the hearing officer to determine whether an independent evaluation is needed.  If the hearing officer concludes, after reviewing the available information, that an independent evaluation is necessary to inform the hearing officer concerning the services to which the student may be entitled, it shall be so ordered and provided at the School's expense.  The hearing officer shall delay the hearing as provided for in this subsection.

 

d)         Either party to the hearing has the right to the disclosure at least 5 days prior to the hearing of any evidence to be introduced.

 

e)         Either party may compel the attendance of any School employee at the hearing, or any other person who may have information relevant to the needs, abilities, proposed program, or status of the student.  At the request of either party, the hearing officer shall issue subpoenas to compel the testimony of witnesses or the production of documents relevant to the case at issue.  If any person refuses to comply with a subpoena issued under Section 828.90(e), court action may be sought as provided in Section 14-8.02a(g) of the School Code [105 ILCS 5].

 

f)         Either party, or any person participating in the hearing, may request that an interpreter be available during the hearing because one of the participants is deaf or hard of hearing and/or uses a primary language other than English.  Interpreters shall be provided at DHS-DRS expense.

 

g)         The student's educational placement shall not be changed pending completion of the hearing except as provided in Section 14-8.02a(j) of the School Code.

 

(Source:  Amended at 37 Ill. Reg. 6358, effective April 25, 2013)

 

Section 828.90  Powers and Duties of Hearing Officer

 

a)         Once appointed, the impartial due process hearing officer shall not communicate with ISBE, the School, or employees of ISBE or the School concerning the hearing and shall not initiate or participate in any ex parte communications with the parties, except as provided in Section 14-8.02a(g) of the School Code.

 

b)         The hearing officer shall disclose any actual or potential conflict of interest to the parties upon learning of the conflict of interest.

 

c)         The hearing officer shall conduct the hearing and shall have, but not be limited to, the following powers:

 

1)         to administer, or to authorize the court reporter to administer, oaths;

 

2)         to examine witnesses;

 

3)         to issue subpoenas;

 

4)         to rule upon the admissibility of evidence;

 

5)         to order independent evaluations;

 

6)         to grant specific extensions of time;

 

7)         to read into the hearing record any stipulations of fact and other matters agreed upon at the pre-hearing conference and to enter into the record any pre-hearing orders; and

 

8)         to render decisions and issue orders and clarifications.

 

d)         The hearing officer shall comply with applicable timelines established in Section 14-8.02a of the School Code.

 

(Source:  Amended at 37 Ill. Reg. 6358, effective April 25, 2013)

 

Section 828.100  Decision of the Hearing Officer

 

a)         Within 10 days after the conclusion of the hearing, the hearing officer shall issue a written decision that sets forth the issues in dispute, the findings of fact based upon the evidence and testimony presented, and the hearing officer's conclusions of law and orders.  The hearing officer shall determine whether the evidence establishes that the student has needs that require special education services and, if so, whether the services proposed or provided by the School are appropriate given the student's identified needs.

 

b)         The hearing officer's decision shall be sent by certified mail to the involved parties.  The decision shall be translated into the native language of the parents or guardians if their primary language is other than English.

 

c)         The written decision shall be binding upon the parties unless a party aggrieved by the decision commences a civil action as provided in Section 14-8.02a(i) of the School Code.  A filing of a civil action shall act as a supersedeas, and implementation of the hearing officer's decision shall be stayed pending judicial review.

 

d)         The hearing decision, if not appealed pursuant to subsection (c), shall be enforced by the School.

 

(Source:  Amended at 37 Ill. Reg. 6358, effective April 25, 2013)