6.1 Dispute Methods
There are three methods of dispute resolution available in Illinois. These are:
- State Complaints;
- Mediation; and
- Due Process Hearings.
6.2 State Complaints
- 6.2.1 Individuals or organizations (hereinafter referred to as Complainant) may file a written, signed State Complaint with DHS stating that DHS, CFC or Payee/Provider (hereinafter referred to as Responding Party) is violating a law or rule regarding the DHS EI program. The form Request for Investigation of State Complaint shall be used and shall include:
- A statement that the Responding Party has violated a requirement of Part C of the Act;
- The facts on which the statement is based;
- The signature and contact information of the Complainant;
- If violations pertain to a specific child the following shall be included: (a) the name and address of the residence of the child; (b) the name of the CFC serving the child; (c) the name of the provider, if relevant; (d) a description of the nature of the problem of the child, including facts relating to the problem; and (d) a proposed resolution of the problem to the extent known and available to the party at the time the Complaint is filed.
- 6.2.2 A request for investigation of a State Complaint shall not be denied if the above information is otherwise provided in writing.
- 6.2.3 State Complaints must be submitted in writing to:
- Part C Coordinator
DHS - Bureau of Early Intervention
823 East Monroe
Springfield, IL 62701
- 6.2.4 The Complainant must forward a copy of the State Complaint to the Responding Party at the same time the Complainant files the State Complaint with DHS.
- 6.2.5 The alleged violation must have occurred not more than one year before the date the State Complaint is received by DHS.
- 6.2.6 DHS shall have 60 calendar days from receipt of the State Complaint to investigate and issue a written decision to the Complainant and interested parties, addressing each allegation in the State Complaint. During this time, DHS may carry out an independent on-site investigation, if deemed necessary. DHS shall give the Complainant an opportunity to submit additional information, either orally or in writing, about the allegations made in the State Complaint. DHS shall give the Responding Party an opportunity to respond to the State Complaint. DHS shall give an opportunity for the Complainant and the Responding Party to voluntarily engage in mediation. See Mediation section below.
- 6.2.7 After reviewing all relevant information DHS must issue a written decision to the Complainant and the Responding Party as to whether the Responding Party is violating a requirement of Part C. DHS shall address each allegation in the State Complaint and include findings of fact as well as conclusions. If DHS determines the Responding Party failed to provide appropriate services, DHS shall address:
- corrective actions required to correct the cause(s) of the State Complaint; and
- whether changes to policy and procedures which impact the future provision of service for children with disabilities and their families, is required. DHS may award the Complainant compensatory services or monetary reimbursement from the Responding Party where appropriate.
- 6.2.8 Such final decisions are enforceable and binding. They may be amended only upon agreement in writing between DHS and the Responding Party.
- 6.2.9 The Responding Party may request reasonable technical assistance or alternative corrective actions. However, such requests do not change the final decision unless it is amended in writing between DHS and the Responding Party.
- 6.2.10 The 60-day time period may be extended if exceptional circumstances exist with respect to a particular State Complaint.
- 6.2.11 DHS shall monitor implementation of the final decision to determine that corrective actions and timelines therefore have been met.
- 6.2.12 The Responding Party may be terminated from participation in programs if corrective actions are not met.
- 6.2.13 If an issue raised in the State Complaint (or any Part thereof) is also the subject of a due process hearing, DHS must set aside any part that is being addressed in a due process hearing but resolve any other issues within the 60-day timeline.
- 6.2.14 If an issue is raised in the written State Complaint, which has already been decided in a due process hearing, the previous decision is binding and the complainant must be so informed.
- 6.2.15 A State Complaint alleging a failure of the Responding Party to implement a decision made pursuant to a Request for Due Process Hearing must be resolved by DHS.
- 6.3.1 Parties/Purpose
- Any party having a dispute involving any matter under Part C, including the identification, evaluation, or placement of a child for EI services, or the provision of the services may request mediation to resolve disputes. Mediation may be used at any time, regardless of whether a Request for Due Process Hearing or a State Complaint is filed.
- One purpose of a mediation process is to provide an alternative to the Due Process Hearing as a way to resolve disagreements. In virtually all cases, it is less costly and less adversarial than a Due Process Hearing. Neither party is asked to abandon its beliefs about the child's ability. Rather, the parties are asked to consider alternatives, which could be incorporated into the child's IFSP and to be aware of the concerns and problems expressed by the other party.
- 6.3.2 The form Request for Mediation shall be used, and shall be submitted in writing to:
DHS - Bureau of Administrative Hearings
401 South Clinton, 6th Floor
Chicago, IL 60607
- with copies sent to the CFC office serving the child/family and to:
- Part C Coordinator
DHS - Bureau of Early Intervention
823 East Monroe
Springfield, IL 62701
- 6.3.3 The written request shall include the name and address of the child and of the person requesting mediation, a description of the nature of the problem of the child, including the facts related to the problem, a proposed resolution to the problem, supporting relevant documentation of the facts, and the name and address of service providers.
- 6.3.4 If a Request for Due Process Hearing is made, mediation will be offered. Mediation may not be used to deny or delay a parent's right to a due process hearing or other rights under Part C.
- 6.3.5 The mediation will be conducted by a qualified and impartial mediator who is trained in effective mediation techniques and who is knowledgeable in laws and regulations relating to EI services under Part C. DHS must maintain a list of individuals who meet these criteria and DHS must select mediators on a random, rotational or other impartial basis. A mediator may not be an employee of an agency providing services to the child at issue, nor of DHS, nor have a personal or professional conflict of interest that conflicts with the person's objectivity.
- 6.3.6 DHS shall bear the cost of the mediation process. It must be voluntary by all parties.
- 6.3.7 The mediator shall assure that mediation conferences are convened and concluded in a timely fashion and in no event later than the due process hearing if one is requested.
- 6.3.8 The mediator will contact the parties to set a mutually convenient date, time and location for the mediation conference, to answer any questions the parties may have regarding the process and to request additional information from the parties.
- 6.3.9 The role of the mediator is that of a neutral facilitator assisting parents and EI personnel to resolve their disagreement. Although the mediator is in control of the session, the mediator is not the decision-maker and may not compel action by either party. The mediator allows the parties to present their positions, establishes an understanding of the disagreement, determines points of agreement, and offers suggestions/proposals for resolution, attempting to help the parties achieve a mutual solution that is in the best interests of the child. The mediator facilitates the process, summarizes positions and may help the parties consider possible alternatives.
- 6.3.10 If an agreement is reached by the parties, it shall be set forth in a written mediation agreement signed by representatives of all parties who have authority to bind the parties. The mediation agreement will record only the date of the mediation, the parties to the mediation, the terms agreed upon and the following statement: All discussions that occurred during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding.
- 6.3.11 Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent administrative hearing or civil proceeding. The parties will be asked to sign a confidentiality pledge prior to the commencement of the mediation. Only the fact that mediation occurred and the terms of any mediation agreement reached is admissible in subsequent proceedings.
- 6.3.12 Participants in the mediation conference should be limited to those necessary to resolution of the dispute and shall include persons authorized to act on behalf of the parties. In determining participants, the parties and mediator should be guided by desire to achieve mutual non-adversarial problem solving with the child's interests and the interests of the EI system as the goal.
- 6.3.13 The parties are expected to approach the mediation session in good faith and with the intention of attempting to reach an agreement. It is important that all parties approach the session with a willingness to listen and to consider all aspects of the issues in the interests of the child and of the EI system. They are active participants in the session and, if agreement is reached, develop the terms of the agreement with the assistance of the mediator.
- 6.3.14 The mediation allows an uninterrupted opportunity for both parties to present their views in a non-adversarial setting. It allows parents and EI personnel to focus on their common concerns, rather than their differences. Even if an agreement is not reached, there is the potential of both parties leaving the session with an enhanced perspective of the issues, and with a more positive working relationship.
- 6.3.15 Regional intake entities, Service Coordinators and other participants in the EI system shall encourage resolution of disputes by mediation.
- 6.3.16 A written signed mediation agreement under this paragraph is enforceable in any State Court of competent jurisdiction or in a District Court of the United States.
6.4 Request for Due Process Hearing
- 6.4.1 The parents of a child, a provider, a CFC or DHS may submit a Request for Due Process Hearing Officer form to resolve a dispute regarding the evaluation, identification, placement, delivery of services, or the provision of appropriate services for their child (or if a public agency, for a child for whom they have responsibility).
- 6.4.2 A Request for Due Process Hearing Officer form shall be used and submitted in writing to:
DHS - Bureau of Administrative Hearings
401 South Clinton, 6th Floor
Chicago, IL 60607
with copies to the CFC office serving the family and to:
- Part C Coordinator
DHS - Bureau of Early Intervention
823 East Monroe
Springfield, IL 62701
- 6.4.3 The Request for Due Process Hearing Officer shall include:
- The name, address, and telephone number of the child's parent, or the person making the request if it is someone other than the child's parent, or available contact information if no address;
- The name of the child and the child's date of birth;
- The address of the residence of the child or if the child is homeless available contact information for the child;
- The name and address of the child's CFC;
- A description or the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem;
- Authorization for release of the child's EI service records to DHS and the hearing officer;
- The remedy being sought or proposed resolution of the controversy to the extent known and available to the parents at the time;
- The primary language spoken by the parents;
- The service delivery agency(s) and/or provider(s) involved in the dispute; and
- Evidence supporting the remedy or proposed resolution (i.e. IFSP, Family Fee Calculation Form, bill payment, etc.).
- 6.4.4 The Request for Due Process Hearing shall be confidential and only used for purposes of resolution of the dispute and as agreed to by the child's parents.
- 6.4.5 A party may not have a due process hearing until the party or the attorney representing the party files a request containing all of the above information. The Request for Due Process Hearing form shall be used, but the request will not be denied if the above information is otherwise provided in writing. If DHS or other party deems the request insufficient, they shall notify the hearing officer and the complaining party in writing within 15 calendar days of receipt of the request. The hearing officer shall make a determination on the face of the notice of whether or not it is sufficient within five (5) calendar days of receipt of the notification and shall notify the parties in writing of that determination. Within 10 days, the party that is the subject of the Request for Due Process Hearing shall send to the complaining party a response which specifically addresses the issues raised in the Request for Due Process Hearing.
- 6.4.6 The CFC shall disclose the complete record of the child to DHS within five (5) calendar days of receipt of the complaint requesting a proceeding hereunder.
- 6.4.7 Pursuant to 34 CFR 303.421, if "prior written notice" was not provided to the parent regarding the subject matter of the parent's request for impartial administrative hearing, the CFC shall send the parent a response within 10 calendar days of receiving the complaint. This response shall not preclude the assertion that the parent's request for due process hearing was insufficient, where appropriate. The response shall include:
- An explanation of why the CFC or payee/provider proposed or refused to take the action raised in the complaint;
- A description of other options the IFSP team considered and the reason why those options were rejected;
- A description of the evaluation procedure, assessment, record or report the agency used as the basis for the proposed or refused action; and
- A description of the factors relevant to the CFC or payee/provider's proposal or refusal.
- 6.4.8 A party may amend its' Request for Due Process Hearing Officer if the other parties consent in writing to the amendment and are given the opportunity to resolve the complaint through a resolution meeting as described in 6.4.9, or if the hearing officer grants permission no later than 5 business days before a due process hearing occurs. The timelines for the resolution meeting identified in 6.4.10 below, and for resolution of the hearing request, begin a new with the filing of the amended request.
- 6.4.9 Upon receipt of a sufficient Request for Due Process Hearing Officer form, DHS will convene a resolution meeting with the parent, the relevant member or members of the IFSP Team who have specific knowledge of the facts identified in the complaint and a DHS representative if necessary. The parent and DHS must determine the relevant members of the IFSP team to attend the meeting. The purpose of this meeting is to provide the parents with an opportunity to resolve the complaint.
- 6.4.10 The resolution meeting must be held within 15 calendar days of receipt of the request for hearing.
- 6.4.11 The resolution meeting must include a representative who is authorized to make decisions on behalf of each party.
- 6.4.12 A party may not be represented by an attorney at the resolution meeting unless the parent is accompanied by an attorney.
- 6.4.13 If the parties are able to resolve the dispute during the resolution meeting, the parties shall execute a legally binding agreement that is signed by both the parent and the other party representatives and that is enforceable in any State court of competent jurisdiction or in a district court of the United States.
- 6.4.14 A party may void this agreement within 3 business days of the agreement's
- 6.4.15 Though recommended, the resolution meeting is not mandatory if the parent and other parties agree to waive it, or agree to use mediation.
- 6.4.16 Mediation option: Upon receipt of a request for a due process hearing, parties involved in the dispute shall be offered the option of mediation as set forth above.
- 6.4.17 During the pendency of a proceeding, unless the parent and DHS agree otherwise, the child must continue to receive the appropriate EI services identified in the most recent IFSP that the parents consented to. If the Request for Due Process Hearing involves application for initial services, the child must receive those services, which are not in dispute.
- 6.4.18 The parent shall be informed of free or low-cost legal and other related services available in the area if the parent requests such information or if the parent, provider, CFC or DHS initiates a due process hearing under these provisions. CFCs shall maintain such information and make it available upon request or if a proceeding is initiated hereunder.
- 6.4.19 Upon receipt of a Request for Due Process Hearing Officer form, DHS shall appoint an impartial hearing officer. DHS shall maintain a list of such hearing officers, which includes a statement of qualifications of each of hearing officer. An impartial hearing officer must:
- Be licensed to practice law in Illinois;
- Have knowledge about the provisions of IDEA Part C and the Illinois EI Services System Act, and the needs of eligible children and their families and services available to them;
- Not be an employee of DHS or a state educational agency, school district or private service provider involved in the provision of EI services or care of the child;
- Not have a personal or professional interest that would conflict with his/her objectivity in implementing the process.
- 6.4.20 A Request for Due Process Hearing Officer form must be submitted to DHS as soon as possible but at least within 3 months of the date the complainant knew or should have known about the alleged action that forms the basis of the complaint. This timeline shall not apply during any period of time that the parent was prevented from requesting the hearing due to:
- Specific misrepresentations by DHS, CFC or the Provider/Payee that the problem forming the basis of the complaint has been resolved; or
- DHS, CFC or the Provider/Payee withheld information from the parent that was required to be provided to the parent.
- 6.4.21 If DHS has not resolved the complaint to the satisfaction of the parent within 30 days of the receipt of the request for hearing, the hearing may occur and the 45-day time line for resolution of the complaint by the hearing officer begins. This 30-day time period will be delayed by any length of time the parent fails to participate in the resolution meeting, unless the parties have jointly agreed to waive the resolution meeting or to use mediation.
- 6.4.22 If DHS is unable to obtain participation of the parent in the resolution meeting after reasonable efforts have been made and documented, the hearing officer may dismiss the complaint. If DHS fails to hold the resolution meeting within 15 days of receiving notice of the complaint or fails to participate in the meeting, the parent may request the hearing officer to begin the 45-day time line for resolution of the complaint.
- 6.4.23 The hearing must be resolved within 45 days, with a final decision completed and mailed to the parties. The 45 days begin the day after one of the following:
- The parties agree in writing to waive the resolution meeting; or
- A mediation or resolution meeting starts but the parties agree in writing before the end of the 30-day period that no agreement is possible; or
- The parties agree in writing to continue the mediation at the end of the 30-day resolution period, but a party later withdraws from the mediation process.
- The parties shall immediately notify the appointed Hearing Officer and DHS in writing as soon as any of the above occurs.
- 6.4.24 Within five (5) days of receiving written notification that the 45-day time period for resolution has begun pursuant to 6.4.21 above, the appointed hearing officer shall contact the parties to determine a time and place reasonably convenient to the parents and child involved for a hearing and any pre-hearing conferences. The hearing officer shall provide the parties and the Part C Coordinator at least ten (10) days' written notice of the dates, times, and locations of any pre-hearing conferences and of the hearing.
- 6.4.25 The hearing officer may conduct a pre-hearing conference either in person or by telephone in order to narrow the issues, determine stipulations by the parties, exchange evidence and names of witnesses and consider other matters, which may aid in efficient disposition of the case. At the conclusion of the pre-hearing conference, the hearing officer will prepare a written report of the conference to be entered into the hearing record documenting the discussion, any stipulations and orders and scheduling accommodations made for parties or witnesses.
- 6.4.26 Any party to a hearing has a right to:
- Be accompanied (at the party's expense) and advised by counsel and by individuals with special knowledge or training with respect to children with disabilities;
- Present evidence, and confront, cross-examine, and compel the attendance of witnesses;
- Prohibit the introduction of any evidence at the proceeding that has not been disclosed to that party at least five days before the proceedings;
- Obtain a written or electronic verbatim record of the hearing; and
- Obtain written or at the option of the parent, electronic findings of fact and decision.
- 6.4.27 Parents involved in hearings must be given the right to:
- Have the child who is the subject of the hearing present;
- Open the hearing to the public (hearings shall be closed to the public unless the parent requests it to be open); and
- Have the record of the hearing, the findings of fact and decision provided at cost to the parents.
- 6.4.28 As soon as possible, but at least five (5) business days prior to the hearing, each party shall disclose to all other parties all evaluations completed by that date and recommendations based thereon which the party intends to use at the hearing, as well as other evidence to be offered at hearing, names of all witnesses and the nature of their testimony and any other relevant documentation whether it will be offered at hearing or not.
- 6.4.29 The hearing officer may bar any party failing to comply with 6.4.28 above from introducing evidence or calling witnesses at the hearing that were not produced as required therein.
- 6.4.30 No party shall be allowed to raise issues at the hearing that were not raised in request for impartial administrative hearing, unless the other parties agree.
- 6.4.31 The hearing officer is authorized to conduct the hearing, administer oaths, issue subpoenas to compel testimony or production of documents, rule on motions, grant continuances, call or examine witnesses, and take such other action as may be necessary to provide the parties with an opportunity to be heard fairly and expeditiously.
- 6.4.32 At the hearing the party requesting the hearing has the burden of proceeding first and demonstrating by a preponderance of the evidence that the provision or proposed provision of EI services for the child violates the laws or rules governing EI services.
- 6.4.33 Upon completion of the submission of evidence and testimony, parties shall be given a reasonable period of time to present written or oral arguments.
- 6.4.34 The hearing officer determination as to whether the child received appropriate EI services shall be made on substantive grounds.
- In matters alleging a procedural violation, a hearing officer may find that a child did not receive appropriate EI services only if the procedural inadequacies:
- Impeded the child's right to appropriate EI services;
- Significantly impeded the parent's opportunity to participate in the decision making process regarding the provision of appropriate EI services to the parent's child; or
- Caused deprivation of developmental benefit.
- This does not preclude the hearing officer from ordering DHS, a CFC, or Payee/ Provider to comply with procedural requirements.
- 6.4.35 The hearing officer shall maintain and prepare a record of the proceeding and shall prepare written findings and a decision, which shall be served upon the parties. The record shall contain the request for the proceeding, evidence submitted at the hearing, a transcript or recording of the hearing, pre-hearing conference reports, motions, orders and all other material which is part of the record.
- 6.4.36 Any and all written findings and decisions shall be transmitted to the Illinois Interagency Council on EI and be made available to the public without personally identifying information.
- 6.4.37 Either party may request a delay in convening the hearing and/or the pre-hearing conference for cause. The party requesting the delay shall do so in writing to the hearing officer, with a copy served at the same time to all parties. The requesting party shall set forth the reasons for the request and the hearing officer shall, upon receiving the request either grant or deny the request, taking into account the right to resolution set forth in 6.4.23 above, which may be needed.
- 6.4.38 Any party aggrieved by the findings and decision made in the hearing has the right to bring civil action in a state court of competent jurisdiction or in a district court of the United States within 90 days from the date of the decision of the hearing officer, regardless of the amount in controversy.
- 6.4.39 Calculation of Time: Time periods set forth herein are calendar days unless otherwise specified.
6.5 Notice of Procedural Safeguards
- 6.5.1 The State of Illinois Infant/Toddler & Family Rights under IDEA for the Early Intervention System booklet contains an explanation of the three methods of dispute resolutions. Provide a copy of the booklet to parents at each of the following times: (1) upon initial referral; (2) upon annual redetermination of eligibility/annual IFSP review; (3) upon the first filing of a Request for Due Process Hearing; and (4) upon request by a parent.
- 6.5.2 If a parent, provider or any other stakeholder expresses a desire to file a State Complaint, request Mediation and/or request a due process hearing, the CFC shall provide the appropriate form. Complaint forms can be downloaded from the EI Monitoring Program's website at www.eitam.org. The parent shall also be given The State of Illinois Infant/Toddler & Family Rights under IDEA for the Early Intervention System booklet if the parent does not have a copy.