HB6813 93RD GENERAL ASSEMBLY

LRB093 18073 NHT 43760 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
HB6813

Introduced 2/9/2004, by James D. Brosnahan

SYNOPSIS AS INTRODUCED:

105 ILCS 5/14-8.02a

Amends the Children with Disabilities Article of the School Code. Provides that a parent or guardian who is a prevailing party in an impartial due process hearing or a civil action may recover reasonable attorney's fees and costs from an opposing party (now, the school district is liable for attorney's fees only if the district willfully disregards applicable regulations or statutes and that disregard is detrimental to the child). Effective immediately.

FISCAL NOTE ACT MAY APPLY

HOUSING AFFORDABILITY IMPACT NOTE ACT MAY APPLY

STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

A BILL FOR

AN ACT concerning education.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The School Code is amended by changing Section 14-8.02a as follows:

(105 ILCS 5/14-8.02a)

Sec. 14-8.02a. Impartial due process hearing; civil action.

(a) This Section (rather than the impartial due process procedures of subsections (h) through (o) of Section 14-8.02, which shall continue to apply only to those impartial due process hearings that are requested under this Article before July 1, 1997) shall apply to all impartial due process hearings requested on or after July 1, 1997.

(b) The State Board of Education shall establish an impartial due process hearing system, including a corps of hearing officers, in accordance with this Section and shall, with the advice and approval of the Advisory Council on Education of Children with Disabilities, promulgate rules and regulations consistent with this Section to establish the qualifications of hearing officers and the rules and procedures for due process hearings. The State Board of Education shall recruit candidates for due process hearing officers who meet the criteria set forth in this Section. Candidates shall be screened by a 7-member Screening Committee consisting of the following: the Attorney General, or his or her designee; the State Superintendent of Education, or his or her designee; 3 members appointed by the State Superintendent of Education, one of whom shall be a parent of a student eligible for special education, another of whom shall be a director of special education for an Illinois school district or special education joint agreement, and the other of whom shall be an adult with a disability; and 2 members appointed by the Attorney General, one of whom shall be a parent of a student eligible for special education and the other of whom shall be an experienced special education hearing officer who is not a candidate for appointment under this Section. The members of the Screening Committee shall be appointed no later than 60 days following the effective date of this amendatory Act of 1996. The chairperson of the Advisory Council on Education of Children with Disabilities or his or her designee shall serve on the Screening Committee as an ex-officio non-voting member. Three members of the Screening Committee shall be appointed for initial terms of 2 years, and 4 members shall be appointed for initial terms of 3 years, by using a lottery system. Subsequent appointments and reappointments shall be for terms for 3 years. The Screening Committee shall elect a chairperson from among its voting members. Members of the Screening Committee shall serve without compensation but shall be reimbursed by the State Board of Education for their expenses. The Screening Committee shall review applications and supporting information, interview candidates, and recommend applicants to the Advisory Council on Education of Children with Disabilities based upon objective criteria it develops and makes available to the public. The number of candidates recommended shall equal 150% of the number deemed necessary by the State Board of Education.

(c) The application process shall require each applicant to provide a comprehensive disclosure of his or her professional background and work experience. Applicants must hold at least a masters level degree, a juris doctor degree, or a bachelors degree with relevant experience. Current employees of the State Board of Education, local school districts, special education cooperatives, regional service areas or centers, regional educational cooperatives, state-operated elementary and secondary schools, or private providers of special education facilities or programs shall be disqualified from serving as impartial due process hearing officers. Nothing in this Section shall be construed to prohibit retired school personnel and part-time contractual school personnel who serve in a consulting capacity from serving as hearing officers. Applications by individuals on the State Board of Education's list of eligible Level I due process hearing officers or Level II review officers when the initial recruitment of due process hearing officers is conducted under this Section shall be considered if they meet the qualifications under this subsection.

(d) The State Board of Education shall, through a competitive application process, enter into a contract with an outside entity to establish and conduct mandatory training programs for impartial due process hearing officers and an annual evaluation of each impartial due process hearing officer that shall include a written evaluation report. The invitation for applications shall set forth minimum qualifications for eligible applicants. Each contract under this subsection may be renewed on an annual basis subject to appropriations. The State Board of Education shall conduct a new competitive application process at least once every 3 years after the initial contract is granted. The Screening Committee established pursuant to subsection (b) of this Section shall review the training proposals and forward them, with recommendations in rank order, to the State Board of Education. All impartial hearing officer candidates recommended to the Advisory Council on Education of Children with Disabilities shall successfully complete initial and all follow-up trainings, as established by the contract between the State Board of Education and the training entity, in order to be eligible to serve as an impartial due process hearing officer. The training curriculum shall include, at a minimum, instruction in federal and State law, rules, and regulations, federal regulatory interpretations and court decisions regarding special education and relevant general education issues, diagnostic procedures, information about disabilities, and techniques for conducting effective and impartial hearings, including order of presentation. The training shall be conducted in an unbiased manner by education and legal experts, including qualified individuals from outside the public education system. Upon the completion of initial impartial due process hearing officer training, the Advisory Council on Education of Children with Disabilities, applying objective selection criteria it has developed and made available to the public, shall go into executive session and select the number of active impartial due process hearing officers deemed necessary by the State Board of Education from those candidates who have successfully completed the initial training. Fifty percent of the impartial due process hearing officers appointed shall serve initial terms of 2 years, and the remaining 50% shall serve initial terms of one year, such terms to be determined by using a lottery system. After the initial term all reappointments shall be for a term of 2 years. The Screening Committee, based on its objective selection criteria and the annual evaluation reports prepared by the training entity, shall recommend whether the hearing officers whose terms are expiring should be reappointed and shall transmit its recommendations to the State Board of Education. If, at any time, the State Board of Education, with the advice of the Advisory Council on Education of Children with Disabilities, determines that additional hearing officers are needed, the hearing officer selection process described in this Section shall be reopened to select the number of additional hearing officers deemed necessary by the State Board of Education.

Impartial due process hearing officers shall receive a base annual stipend and per diem allowance for each hearing at a rate established by the State Board of Education.

The State Board of Education shall provide impartial due process hearing officers with access to relevant court decisions, impartial hearing officer decisions with child-specific identifying information deleted, statutory and regulatory changes, and federal regulatory interpretations. The State Board of Education shall index and maintain a reporting system of impartial due process hearing decisions and shall make such decisions available for review by the public after deleting child-specific identifying information.

(e) An impartial due process hearing officer shall be terminated by the State Board of Education for just cause if, after written notice is provided, appropriate timely corrective action is not taken. For purposes of this subsection just cause shall be (1) failure or refusal to accept assigned cases without good cause; (2) failure or refusal to fulfill duties as a hearing officer in a timely manner; (3) consistent disregard for applicable laws and regulations in the conduct of hearings; (4) consistent failure to conduct himself or herself in a patient, dignified, and courteous manner to parties, witnesses, counsel, and other participants in hearings; (5) failure to accord parties or their representatives a full and fair opportunity to be heard in matters coming before him or her; (6) violating applicable laws regarding privacy and confidentiality of records or information; (7) manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, disability, or national origin; (8) failure to recuse himself or herself from a hearing in which he or she has a personal, professional, or financial conflict of interest which he or she knew or should have known existed at any time prior to or during the hearing; (9) conviction in any jurisdiction of any felony or of a misdemeanor involving moral turpitude; and (10) falsification of a material fact on his or her application to serve as a due process hearing officer. In addition, an impartial hearing officer who, as a result of events occurring after appointment, no longer meets the minimum requirements set forth in this Section, shall be disqualified to complete the balance of his or her contract term.

The State Board of Education shall monitor, review, and evaluate the impartial due process hearing system on a regular basis by a process that includes a review of written decisions and evaluations by participants in impartial due process hearings and their representatives. The State Board of Education shall prepare an annual written report no later than July 1 of each year, beginning in 1998, evaluating the impartial due process hearing system. The reports shall be submitted to the members of the State Board of Education, the State Superintendent of Education, the Advisory Council on Education of Children with Disabilities, and the Screening Committee and shall be made available to the public.

The training entity under subsection (d) shall conduct annual evaluations of each hearing officer and shall prepare written evaluation reports to be provided to the Screening Committee for its consideration in the reappointment process. The evaluation process shall include a review of written decisions and evaluations by participants in impartial due process hearings and their representatives. Each hearing officer shall be provided with a copy of his or her evaluation report and shall have an opportunity to review the report with the training entity and submit written comments.

(f) An impartial due process hearing shall be convened upon the request of a parent or guardian, student if at least 18 years of age or emancipated, or a school district. A school district shall make a request in writing to the State Board of Education and promptly mail a copy of the request to the parents or guardian of the student at their last known address. A request made by the parent, guardian, or student shall be made in writing to the superintendent of the school district in which the student resides, who shall forward the request to the State Board of Education within 5 days of receipt of the request. Within 5 days after receipt of the request the State Board of Education shall appoint a due process hearing officer using a rotating appointment system and shall notify the hearing officer of his or her appointment. No person who is an employee of a school district that is involved in the education or care of the student shall conduct the hearing. A hearing officer having a personal or professional interest that would conflict with his or her objectivity in the hearing shall so notify the State Board of Education and shall be replaced by the next scheduled impartial due process hearing officer under the rotation system. For purposes of this subsection an assigned hearing officer shall be considered to have a conflict of interest if, at any time prior to the issuance of his or her written decision, he or she knows or should know that he or she may receive remuneration from a party to the hearing within 3 years following the conclusion of the due process hearing. A party to a due process hearing shall be permitted one substitution of hearing officer as a matter of right, in accordance with procedures established by the rules adopted by the State Board of Education under this Section. The State Board of Education shall randomly select and appoint another hearing officer within 5 days after receiving notice that the appointed hearing officer is ineligible to serve or upon receiving a proper request for substitution of hearing officer. If a party withdraws its request for a due process hearing after a hearing officer has been appointed, that hearing officer shall retain jurisdiction over a subsequent hearing that involves the same parties and is requested within one year from the date of withdrawal of the previous request, unless that hearing officer is unavailable.

A former employee or current resident of the school district, special education cooperative, or other public entity involved in the due process hearing shall recuse himself or herself. A hearing officer shall disclose any actual or potential conflicts of interests to the parties upon learning of those conflicts. Any party may raise facts that constitute a conflict of interest for the hearing officer at any time before or during the hearing and may move for recusal.

For purposes of this Section, "days" shall be computed in accordance with Section 1.11 of the Statute on Statutes.

(g) Impartial due process hearings shall be conducted pursuant to this Section and rules and regulations promulgated by the State Board of Education consistent with this Section and other governing laws and regulations. The hearing shall be closed to the public unless the parents or guardian request that the hearing be open to the public. The parents or guardian involved in the hearing shall have the right to have the student who is the subject of the hearing present. The hearing shall be held at a time and place which are reasonably convenient to the parties involved. Upon the request of a party, the hearing officer shall hold the hearing at a location neutral to the parties if the hearing officer determines that there is no cost for securing the use of the neutral location. Once appointed, the impartial due process hearing officer shall not communicate with the State Board of Education or its employees concerning the hearing, except that, where circumstances require, communications for administrative purposes that do not deal with substantive or procedural matters or issues on the merits are authorized, provided that the hearing officer promptly notifies all parties of the substance of the communication as a matter of record.

The hearing officer shall convene a prehearing conference no later than 14 days before the scheduled date for the due process hearing for the general purpose of aiding in the fair, orderly, and expeditious conduct of the hearing. The hearing officer shall provide the parties with written notice of the prehearing conference at least 10 days in advance of the conference. The written notice shall require the parties to notify the hearing officer by a date certain whether they intend to participate in the prehearing conference. The hearing officer may conduct the prehearing conference in person or by telephone. Each party shall disclose at the prehearing conference (1) whether it is represented by legal counsel or intends to retain legal counsel; (2) the matters it believes to be in dispute in the case and the specific relief being sought; (3) whether there are any additional evaluations for the student that it intends to introduce into the hearing record that have not been previously disclosed to the other parties; (4) a list of all documents it intends to introduce into the hearing record, including the date and a brief description of each document; and (5) the names of all witnesses it intends to call to testify at the hearing. The hearing officer shall specify the order of presentation to be used at the hearing. If the prehearing conference is held by telephone, the parties shall transmit the information required in this paragraph in such a manner that it is available to all parties at the time of the prehearing conference. The State Board of Education shall, by rule, establish additional procedures for the conduct of prehearing conferences. The impartial due process hearing officer shall not initiate or participate in any ex parte communications with the parties, except to arrange the date, time, and location of the prehearing conference and due process hearing and to receive confirmation of whether a party intends to participate in the prehearing conference. The parties shall disclose and provide to each other any evidence which they intend to submit into the hearing record no later than 5 days before the hearing. Any party to a hearing has the right to prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least 5 days before the hearing.

The school district shall present evidence that the special education needs of the child have been appropriately identified and that the special education program and related services proposed to meet the needs of the child are adequate, appropriate, and available. Any party to the hearing shall have the right to (1) be represented by counsel and be accompanied and advised by individuals with special knowledge or training with respect to the problems of children with disabilities, at the party's own expense; (2) present evidence and confront and cross-examine witnesses; (3) move for the exclusion of witnesses from the hearing until they are called to testify, provided, however, that this provision may not be invoked to exclude the individual designated by a party to assist that party or its representative in the presentation of the case; (4) obtain a written or electronic verbatim record of the proceedings within 30 days of receipt of a written request from the parents by the school district; and (5) obtain a written decision, including findings of fact and conclusions of law, within 10 days after the conclusion of the hearing. If at issue, the school district shall present evidence that it has properly identified and evaluated the nature and severity of the student's suspected or identified disability and that, if the student has been or should have been determined eligible for special education and related services, that it is providing or has offered a free appropriate public education to the student in the least restrictive environment, consistent with procedural safeguards and in accordance with an individualized educational program. At any time prior to the conclusion of the hearing, the impartial due process hearing officer shall have the authority to require additional information and order independent evaluations for the student at the expense of the school district. The State Board of Education and the school district shall share equally the costs of providing a written or electronic verbatim record of the proceedings. Any party may request that the due process hearing officer issue a subpoena to compel the testimony of witnesses or the production of documents relevant to the resolution of the hearing. Whenever a person refuses to comply with any subpoena issued under this Section, the circuit court of the county in which that hearing is pending, on application of the impartial hearing officer or the party requesting the issuance of the subpoena, may compel compliance through the contempt powers of the court in the same manner as if the requirements of a subpoena issued by the court had been disobeyed.

(h) The impartial hearing officer shall issue a written decision, including findings of fact and conclusions of law, within 10 days after the conclusion of the hearing and mail a copy of the decision to the parents, guardian, or student (if the student requests the hearing), the school district, the director of special education, legal representatives of the parties, and the State Board of Education. Unless the hearing officer has granted specific extensions of time at the request of a party, a final decision, including the clarification of a decision requested under this subsection, shall be reached and mailed to the parties named above not later than 45 days after the request for hearing is received by the school district, public agency, or the State Board of Education, whichever is sooner. The decision shall specify the educational and related services that shall be provided to the student in accordance with the student's needs. The hearing officer shall retain jurisdiction for the sole purpose of considering a request for clarification of the final decision submitted in writing by a party to the impartial hearing officer within 5 days after receipt of the decision. A copy of the request for clarification shall specify the portions of the decision for which clarification is sought and shall be mailed to all parties of record and to the State Board of Education. The request shall operate to stay implementation of those portions of the decision for which clarification is sought, pending action on the request by the hearing officer, unless the parties otherwise agree. The hearing officer shall issue a clarification of the specified portion of the decision or issue a partial or full denial of the request in writing within 10 days of receipt of the request and mail copies to all parties to whom the decision was mailed. This subsection does not permit a party to request, or authorize a hearing officer to entertain, reconsideration of the decision itself. The statute of limitations for seeking review of the decision shall be tolled from the date the request is submitted until the date the hearing officer acts upon the request. Upon the filing of a civil action pursuant to subsection (i) of this Section, the hearing officer shall no longer exercise jurisdiction over the case. The hearing officer's decision shall be binding upon the school district and the parents or guardian unless a civil action is commenced.

(i) Any party to an impartial due process hearing aggrieved by the final written decision of the impartial due process hearing officer shall have the right to commence a civil action with respect to the issues presented in the impartial due process hearing. That civil action shall be brought in any court of competent jurisdiction within 120 days after a copy of the decision of the impartial due process hearing officer is mailed to the party as provided in subsection (h). The civil action authorized by this subsection shall not be exclusive of any rights or causes of action otherwise available. The commencement of a civil action under this subsection shall operate as a supersedeas. In any action brought under this subsection the Court shall receive the records of the impartial due process hearing, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. A parent or guardian who is a prevailing party in an impartial due process hearing, including an expedited due process hearing under Section 14-8.02b, or in a civil action under this subsection may recover from an opposing party reasonable attorney's fees and costs, including expert witness fees if the expert's opinion is a significant factor in the parent's or guardian's success. For purposes of this subsection the term "prevailing party" includes a parent or guardian who obtains significant relief in a private settlement of a pending impartial due process hearing or civil action if it is determined that the commencement of proceedings under this subsection was the catalyst for the settlement. An action to recover reasonable attorney's fees and costs may be brought in any court of competent jurisdiction within 30 days after a final impartial due process hearing decision, judgement of the court in a civil action, or the date a settlement agreement is executed. In any instance where a school district willfully disregards applicable regulations or statutes regarding a child covered by this Article, and which disregard has been detrimental to the child, the school district shall be liable for any reasonable attorney's fees incurred by the parent or guardian in connection with proceedings under this Section.

(j) During the pendency of any administrative or judicial proceeding conducted pursuant to this Section, unless the school district and the parents or guardian of the student otherwise agree, the student shall remain in his or her present educational placement and continue in his or her present eligibility status and special education and related services, if any. If the hearing officer orders a change in the eligibility status, educational placement, or special education and related services of the student, that change shall not be implemented until 30 days have elapsed following the date the hearing officer's decision is mailed to the parties in order to allow any party aggrieved by the decision to commence a civil action to stay implementation of the decision. If applying for initial admission to the school district, the student shall, with the consent of the parents or guardian, be placed in the school district program until all such proceedings have been completed. The costs for any special education and related services or placement incurred following 60 school days after the initial request for evaluation shall be borne by the school district if the services or placement is in accordance with the final determination as to the special education and related services or placement that must be provided to the child, provided that during that 60 day period there have been no delays caused by the child's parent or guardian.

(k) Whenever the parents or guardian of a child of the type described in Section 14-1.02 are not known, are unavailable, or the child is a ward of the State, a person shall be assigned to serve as surrogate parent for the child in matters relating to the identification, evaluation, and educational placement of the child and the provision of a free appropriate public education to the child. Persons shall be assigned as surrogate parents by the State Superintendent of Education. The State Board of Education shall promulgate rules and regulations establishing qualifications of those persons and their responsibilities and the procedures to be followed in making assignments of persons as surrogate parents. Surrogate parents shall not be employees of the school district, an agency created by joint agreement under Section 10-22.31, an agency involved in the education or care of the student, or the State Board of Education. Services of any person assigned as surrogate parent shall terminate if the parent or guardian becomes available unless otherwise requested by the parents or guardian. The assignment of a person as surrogate parent at no time supersedes, terminates, or suspends the parents' or guardians' legal authority relative to the child. Any person participating in good faith as surrogate parent on behalf of the child before school officials or a hearing officer shall have immunity from civil or criminal liability that otherwise might result by reason of that participation, except in cases of willful and wanton misconduct.

(l) At all stages of the hearing the hearing officer shall require that interpreters be made available by the school district for persons who are deaf or for persons whose normally spoken language is other than English.

(m) If any provision of this Section or its application to any person or circumstance is held invalid, the invalidity of that provision or application does not affect other provisions or applications of the Section that can be given effect without the invalid application or provision, and to this end the provisions of this Section are severable, unless otherwise provided by this Section.

(Source: P.A. 89-652, eff. 8-14-96.)

Section 99. Effective date. This Act takes effect upon becoming law.