Current through Register Vol. 48, No. 38, September 20, 2024
When the issue is the removal of a child from the home of a
foster family or relative caregiver, the service appeal process for the
Department of Children and Family Services consists of a fair hearing after a
clinical placement review of the decision to remove the child pursuant to
subsection (c). When the issue is disagreement with a Clinical Intervention for
Placement Preservation action plan, the service appeal process consists of a
fair hearing to review the issue pursuant to subsection (d). 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 is successful, 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 or disagreement with a
service decision in a CIPP Action Plan.
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, clinical placement review, or CIPP 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, Station 15,
Springfield, Illinois 62701. The emergency review must be requested within 10
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 10 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 10 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
When services pertaining to the family visitation plan remain
unchanged because an appeal has been requested within 10 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
from the home of a foster family or relative caregiver, the party objecting to
the removal 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 intent to
remove the child.
2) The Department
shall conduct a clinical placement review within 5 working days after receipt
of the request. During the clinical placement review, the Department will
review the current placement, the reason for the removal of the child, and the
child's needs regarding safety, well being and permanency. The clinical
reviewer has the authority to create an action plan that may alleviate the
issues prompting removal of the child. The clinical reviewer may postpone the
removal date when he/she determines the need to obtain and review additional
information that currently exists in another file or the party requesting the
change in placement agrees to postpone the removal date.
3) The Department shall provide written
notice of the decision of the clinical placement review and the right to
request a fair hearing through the Department's Administrative Hearings
Unit.
4) The following placement
changes shall not be subject to clinical placement review:
A) change in the child's substitute care
placement when:
i) the child has been placed
in a licensed foster family or relative caregiver's home for fewer than 60
days, or
ii) the child has been
placed in an unlicensed relative caregiver's home for fewer than 90
days;
B) placement to
consolidate siblings in a single home;
C) placement of a child in a specialized
foster home, in accordance with a CIPP action plan;
D) placement in a group home or institution,
in accordance with a CIPP action plan; or
E) placement in a transitional or independent
living program, in accordance with a CIPP action plan.
5) The Department or provider agency may
immediately remove a child from a foster family or relative caregiver's home,
without timely notice to the family, when the child is determined to be at
imminent risk of harm in the current placement.
6) When the child, family or caregiver
disagrees with the final clinical placement review decision, the objecting
party may request a hearing through the Department's Administrative Hearings
Unit.
7) The request for a fair
hearing must be submitted in writing within 10 days after receiving written
notice of the clinical placement review decision. The request for a hearing and
a copy of the clinical placement review decision shall be sent to:
DCFS Administrative Hearings Unit
Change of Placement Appeals
406 East Monroe, Station 15
Springfield, Illinois 62701
Fax: (217) 557-4652
8) 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) Review of Service Decisions in
Clinical Intervention for Placement Preservation Action Plans
1) CIPP participants shall attempt to reach a
consensus in developing an action plan and resolve any objections to the action
plan that are raised. When a consensus cannot be reached, the objecting
participants shall record the nature and basis of their objection on the action
plan.
2) The Department shall
provide a copy of the action plan to the parents (if parental rights have not
been terminated), the child, the child's guardian ad litem, the child's current
caregiver, and may also provide a copy to other CIPP participants when
consistent with confidentiality requirements in 89 Ill. Adm. Code 431
(Confidentiality of Personal Information of Persons Served by the
Department).
3) The Department
shall give written notice to the parents, the child and the child's guardian ad
litem of their right to request a fair hearing through the Department's
Administrative Hearings Unit if they disagree with a service decision in the
action plan that denies, reduces, suspends or terminates child welfare
services.
4) The Department shall
give written notice to the current foster parent/relative caregiver of his or
her right to request a fair hearing through the Department's Administrative
Hearings Unit if he or she disagrees with a service decision in an action plan
that directly affects the foster parent/relative caregiver or affects services
provided for the benefit of a foster child in his/her care. (See Section
337.70(b).)
5) The request for a fair hearing must be
submitted in writing within 45 days after receiving written notice of the
decision of the CIPP. The request for a hearing and a copy of the action plan
shall be sent to:
DCFS Administrative Hearings Unit
CIPP Appeals
406 East Monroe, Station 15
Springfield, Illinois 62701
Fax: (217) 557-4652
6) In order to stop any recommended denial,
reduction, suspension or termination of services during the appeal, the request
for a fair hearing must be submitted within 10 calendar days after receiving
the action plan.
7) When an appeal
is not requested within 10 days, the child or youth shall be placed in
accordance with the action plan, and all other aspects of the action plan shall
be implemented during the pendency of the appeal.
8) When a request for a hearing is received,
the Administrative Hearings Unit shall conduct a review to determine whether
re-convening the CIPP team is appropriate based on one of the following
factors:
A) Material information that existed
at the time of the CIPP meeting was not presented at the meeting, and the
inclusion of that information would have affected the development of the action
plan; or
B) Critical CIPP
participants, such as the child or youth (if clinically appropriate), current
caregiver, guardian ad litem or another professional with relevant, current
information about the child or youth were not in attendance at the meeting and
their attendance would have affected the development of the action
plan.
9) If the
Administrative Hearings Unit review confirms that one of the factors in
subsection (d)(7), is the basis for the appeal, the Administrative Hearings
Unit shall refer the case back to the CIPP to review the action plan in light
of the additional material and/or include critical CIPP participants.
A) If a referral back to the CIPP is
requested or agreed to by an appellant, the appeal shall be dismissed as
premature.
B) If the appellant does
not agree to a review by the CIPP, the administrative law judge shall refer the
case for review. However, the Department shall be required to make and
implement a final administrative decision within the service appeal time frame
as set out in Section
337.120.
e) 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 reviewer was not consistent with the child's
needs regarding safety, well being, and permanency.
2) At a fair hearing for appeals of a CIPP
action plan, the burden of proof shall be on the appellant to show by a
preponderance of the evidence that the decision made by the CIPP was not
consistent with the child's needs regarding safety, well being and
permanency.
3) 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.
