Current through Register Vol. 48, No. 38, September 20, 2024
a) Complaints
Complaints shall be made to OCWEL for determination as to
whether the complaint meets the grounds for licensure action in Section
412.50.
The complaint shall be confidential within OCWEL, the Board, ELRT and the OIG,
unless otherwise ordered by a court or Administrative Law Judge of competent
jurisdiction. ELRT shall review the complaint to determine whether the
complaint meets the description of one or more of the grounds for licensure
action in Section 412.50. If a majority determines that the complaint meets the
description of one or more of the grounds for licensure action, the report
shall be forwarded to the OIG for investigation.
b) Office of the Inspector General
1) Investigation
The OIG shall investigate formal complaints made to the Board
regarding the actions of any person holding or applying for a license. The OIG
may impound (pursuant to 89 Ill. Adm. Code
431.130
) and subpoena (pursuant to 20 ILCS 505/35.5 and 89 Ill. Adm. Code 430)
documents relevant to an investigation authorized under this Part. The OIG will
review documents and interview relevant persons to determine whether a licensed
employee violated any of the provisions of this Part. If the OIG determines
that licensure action is warranted, the OIG shall provide a Notice of
Administrative Hearing pursuant to subsection (c), provided, however, that no
adverse licensure action (other than preliminary suspension in accordance with
Section
412.90
) can be made before the employee has been notified of the allegations in
accordance with this Section and given an opportunity to
respond.
2) Proposed Action
A) If, after an investigation, the OIG
determines that licensure action is inappropriate but that there is a basis for
disciplinary action, it shall proceed according to Section 35.5 of the Act. If
the investigation discloses possible criminal acts or violations of rules, the
OIG may also refer the investigative findings or the investigation to the
appropriate law enforcement or regulatory agency. If the OIG determines that
licensure action may be appropriate, the OIG will provide a Notice of
Administrative Hearing pursuant to subsection (c); provided, however, that no
adverse licensure action (other than preliminary suspension in accordance with
Section 412.90) can be made before the employee has been notified of the
allegations in accordance with this Section and given an opportunity to
respond.
B) If the investigation
does not provide a basis for adverse licensure action, disciplinary action or
referral to law enforcement or other regulatory enforcement, the OIG will
notify OCWEL, in writing, and the licensee if the licensee was informed of the
investigation. OCWEL will also inform any known child welfare employer of the
closure of the licensure investigation if the employer had been notified of the
investigation.
c) Notice of Administrative Hearing
1) When the OIG requests, the Administrative
Hearing Unit shall identify the date, time and place for an administrative
hearing, and shall assign an ALJ to the case. The OIG shall then notify the
licensee in writing, at least 30 calendar days before the scheduled hearing
date, of the Department's intent to revoke or suspend his or her license and of
the right of the licensee to an administrative hearing. The notice shall be
sent to the licensee, at the most recent address provided to OCWEL by the
licensee or the address provided to the OIG during the investigation. The
notice shall also be sent to the Administrative Hearing Unit. The notice to the
licensee shall be served by personal delivery by certified or registered mail.
Service in conformance with this subsection (c)(1) shall be sufficient to prove
notice.
2) The notice shall contain
the following:
A) the date, time, place and
nature of the hearing;
B) the name
of the licensee and the address of the licensee, if not represented by counsel,
or the address of the counsel, if represented by counsel;
C) the name and business address of the
Department's representative, if any, at the administrative hearing;
D) a citation to the provision in Section 5c
of the Act that grants the Department the legal authority and jurisdiction to
hold the hearing;
E) a reference to
the particular Sections of the statutes and administrative rules
involved;
F) a short and plain
statement of the matters that are the basis of the charges;
G) the reasons that may be deemed an
abandonment under subsection (n) and the cause for the entry of a final
administrative decision before hearing, including the failure to file an answer
to the notice of administrative hearing or the failure to appear at a
pre-hearing or hearing without having first obtained a continuance;
H) the docket number assigned to the
case;
I) the name and mailing
address of the ALJ and any other parties, unless the names or addresses are
confidential under the Abused and Neglected Child Reporting Act [325 ILCS 5 ]
or the Department of Children and Family Services Act [20 ILCS 505], pursuant
to provision found in 89 Ill. Adm. Code 431 (Confidentiality of Personal
Information of Persons Served by the Department of Children and Family
Services);
J) a statement of the
action sought, including but not limited to revocation, suspension or refusal
to renew a license; and
K) date the
notice was filed with the Administrative Hearing Unit.
d) Answer to the Notice of
Administrative Hearing
The respondent shall serve an answer, within 15 calendar days
after the date on which the Notice of Administrative Hearing is sent, on the
Administrative Hearing Unit. The answer shall be in writing and signed by the
respondent or the respondent's authorized representative, and shall include the
respondent's telephone number. The answer shall admit or deny the charges or
shall state that the respondent lacks sufficient information to admit or deny
the charges. If the respondent fails to admit, deny or assert that respondent
lacks sufficient information to answer, the charge shall be deemed admitted as
true. The answer shall also provide any information that establishes a factual
basis for an affirmative defense to the charges. Failure to do so may result in
the ALJ barring the respondent from presenting the defense at any hearing on
the licensing matter.
e)
Rights and Responsibilities in Administrative Hearings
1) Appearance/Authorization to Represent
A) A respondent may bring an authorized
representative and witnesses to the hearing. The respondent shall pay expenses
of a representative or respondent's witnesses.
B) No person shall be allowed to act as an
authorized representative in any matter contested before the Administrative
Hearing Unit without first filing a written authorization with the
Administrative Hearing Unit. The authorization shall be effective only for the
particular matter in which it is filed, unless the matter has been consolidated
with other proceedings by order of the Chief ALJ or the assigned ALJ.
C) No particular form is required to file a
written authorization for representation. However, all authorizations filed
with the Administrative Hearing Unit shall be notarized, signed by the
respondent and authorized representative, and identify:
i) the name, address and phone number of the
party represented;
ii) the name,
address and phone number of the authorized representative; and
iii) the administrative hearing in which
representation is authorized.
D) An authorized representative may exercise
the rights of the respondent in the hearing process. These rights include the
right to:
i) review and copy material placed
in the record during the proceeding;
ii) receive Department, Board and
administrative hearing notices;
iii) request and receive discovery
materials;
iv) speak, or otherwise
be heard, on behalf of the respondent in the administrative hearing process;
and
v) take any other actions
permitted a respondent during the hearing process.
2) During the administrative
hearing, the respondent and the Department have the right to:
A) present and question witnesses;
B) present any information relevant to the
issues;
C) question or disprove any
information, including an opportunity to question opposing witnesses;
and
D) dispose of any disputed
issue by stipulation, agreed settlement, consent order or default.
3) Before and during the
administrative hearing:
A) the respondent may
withdraw from the hearing process and relinquish the license in accordance with
Section
412.40(g);
and
B) the Department may amend the
charges subject to due process.
4) The proceedings shall be recorded or
conducted before a certified court reporter.
f) Confidentiality during the Hearing Process
1) The ALJ has the right to exclude from an
administrative hearing any individual who, or agency that, does not have the
right of access to the information being presented in accordance with the
federal Adoption Assistance and Child Welfare Act (
42 USC
671) , the Children and Family Services Act,
ANCRA, and any other pertinent Act.
2) The ALJ has the authority to divide the
hearing into separate segments that deal with issues of other parties in order
to preserve confidentiality as mandated under applicable statutes and rules and
to prohibit discussion or introduction of evidence that is outside of the scope
of the issues being presented in that segment.
3) Confidentiality During the Hearing Process
The Department has an affirmative duty to protect the
confidentiality of personal information, in accordance with 89 Ill. Adm. Code
431 (Confidentiality of Personal Information of Persons Served by the
Department of Children and Family Services), the federal Adoption Assistance
and Child Welfare Act and Section 10-60 of the Illinois Administrative
Procedure Act [5 ILCS 100 ]. Confidentiality shall be preserved throughout the
administrative hearing, the transmittal of the ALJ's recommendation to the
Board and the release of the final administrative decision. None of the
documents, including the ALJ's recommendation to the Board, shall be subject to
the Freedom of Information Act [5 ILCS 140 ]. The final administrative action,
however, shall be public information.
g) The Administrative Hearing and Pre-hearing
Conference
1) Rules of Evidence
In an administrative hearing, the OIG carries the burden of
proving, by a preponderance of the evidence, grounds for suspension, revocation
or refusal to reinstate license (Section 412.50).
A) Irrelevant, immaterial or unduly
repetitious evidence shall be excluded. The rules of evidence and privilege as
applied in civil cases in the circuit courts of this State shall be followed.
Evidence not admissible under those rules of evidence may be admitted, unless
precluded by statute, if it is of a type commonly relied upon by reasonably
prudent persons in the conduct of their affairs. Objections to evidentiary
offers may be made and shall be noted in the record. Subject to these
requirements, when a hearing will be expedited and the interests of the parties
will not be prejudiced, any part of the evidence may be received in written
form.
B) Previous statements made
by a child relating to abuse or neglect shall be admitted as hearsay
exceptions.
C) In addition to any
other hearsay exception that exists in Illinois, a statement may be admitted if
it has circumstantial guarantees of trustworthiness, and if the probative value
of the statement outweighs any prejudice resulting from an inability to
cross-examine the declarant.
2) Motions
A) Copies of the motion shall be served upon
the ALJ, the Administrative Hearing Unit, and the opposing party at least 10
days before the date set for hearing.
B) The ALJ may hear any motion that is
consistent with administrative practice and procedure.
3) The Chief ALJ or the ALJ may schedule a
pre-hearing conference.
A) The ALJ shall
address the following issues during the pre-hearing conference:
i) whether parties have exchanged lists of
the persons who will provide testimony during the administrative
hearing;
ii) whether witnesses
should be scheduled to testify at specific times;
iii) whether the parties have or will have
exchanged records or documents prior to the administrative hearing;
iv) whether the parties can agree upon any
facts as true;
v) motions filed by
any party; and
vi) the need for an
interpreter for a party whose primary language is not English or who requires
communication assistance.
B) The pre-hearing conference shall be
convened by telephone unless the ALJ and the parties agree to an in-person
pre-hearing conference. The ALJ shall place all telephone calls. The cost of
telephone calls shall be borne by the Department. The Administrative Hearing
Unit shall arrange for the respondent to use a telephone at a Department Field
Office if the respondent has previously notified the Department that he/she
does not have access to a telephone.
C) The ALJ may order the parties to attend
the pre-hearing conference in person without the consent of all parties. If the
ALJ orders personal attendance, the ALJ shall:
i) give written notice to the parties of the
date, time and place of the pre-hearing conference; and
ii) hold the pre-hearing conference at a
place and time convenient for the parties.
h) The Administrative Law Judge
1) Appointment or disqualification of the
Administrative Law Judge is subject to the provisions of Sections 10-20 and
10-30 of the Illinios Administrative Procedure Act.
2) The Chief ALJ shall select a trained,
impartial ALJ from the available pool to conduct the administrative hearing.
The ALJ shall:
A) be an attorney licensed to
practice law in the State of Illinois;
B) possess knowledge and information acquired
through training and/or experience relevant to the fields of child and family
welfare law and administrative law, including familiarity with Department
rules, procedures and functions;
C)
not have been involved in the decision to take the action being contested or
have rendered legal advice to the decisionmaker on the issue; and
D) not have a personal or professional
interest that interferes with exercising objectivity or have any bias against
the parties or issues contested. An adverse ruling, in and of itself, shall not
constitute bias or conflict of interest.
3) Functions and Authority of the
Administrative Law Judge
The ALJ shall have all authority allowed under Article 10 of
the Illinois Administrative Procedure Act, which includes, but is not limited
to, the authority to:
A) conduct a
fair, impartial and formal hearing;
B) inform participants of their individual
rights and their responsibilities;
C) conduct pre-hearing telephone conferences
between the parties or their authorized representatives to provide information
about the procedural aspects of the hearing, narrow the issues and discuss
possible stipulations and contested points of law, in order to expedite the
actual hearing;
D) take necessary
steps to develop a full and fair record that contains all relevant
facts;
E) administer an oath or an
affirmation to all witnesses;
F)
quash or modify subpoenas issued by the Administrative Hearing Unit for good
cause, which includes, but is not limited to, relevance, scope, materiality and
emotional harm or trauma to the subpoenaed witness;
G) preserve all documents and evidence for
the record, subject to provisions of Section 10-35 of the Illinois
Adminitrative Procedure Act;
H)
rule upon evidentiary issues and contested issues of law at the hearing or take
matters under advisement pending issuance of the written opinion and
recommendation;
I) order the
removal of any person from the hearing room who is creating a disturbance,
whether by physical actions, profanity or conduct, that disrupts the
hearing;
J) identify the issues,
consider all relevant facts and receive or request any additional information
necessary to decide the matter in dispute, including, but not limited to, the
submission of briefs, memoranda of law, affidavits or post-hearing briefs;
and
K) for good cause shown, on the
judge's own motion or the motion of any party, allow a witness to testify at
the administrative hearing by telephone.
i) Consolidating and Severing Issues and
Parties
1) When common issues of fact or law
are raised in more than one set of charges or involve more than one licensee,
the Chief ALJ or ALJ may consolidate the charges into a single group hearing.
Individuals shall be permitted to present their own cases separately. Nothing
in this Section shall override confidentiality considerations.
2) The Chief ALJ or ALJ may also combine into
one hearing all sets of charges, appeals and issues involving a single
respondent, whether arising under this Part or any other Part.
3) The Chief ALJ or ALJ, if required for the
fair and efficient administration of the hearing or to prevent possible
prejudice to the respondent, may sever any party or any issue from the
consolidated hearing. The party or issue severed from the consolidated hearing
shall be heard separately.
4) The
Chief ALJ or ALJ shall decide the order in which to hear any party, appeal or
issue that has been severed.
5) The
Chief ALJ may delegate the power to hear and decide any action to consolidate
or sever under this Section to any ALJ who has been assigned to hear one or
more of the appeals.
j)
Exchange of Information
1) All requests for
information must be in writing and sent to the party from whom the information
is sought at least 20 calendar days in advance of the hearing. The requestor
must send a copy of the request to the Administrative Hearing Unit. A party,
without leave of the ALJ, may request from any other party:
A) a list of witnesses to be called at the
hearing; and
B) copies of all
documents that a party intends to present to the ALJ at the hearing.
2) Copies of all requests for
information shall be filed with the Administrative Hearing Unit. All requests
for information shall be answered within 10 calendar days after receipt unless,
upon good cause shown, leave is sought for additional time to answer.
3) If a party fails to answer a request for
information, the ALJ may enter any just and appropriate order to advance the
disposition of the matter.
4)
Hearings shall not be delayed to permit the exchange of information unless
timeliness and due diligence is shown by the party seeking the
information.
k)
Continuances
1) The ALJ shall grant no
continuance of a scheduled hearing or pre-hearing conference to any party
except for good cause shown. Good cause includes, but is not limited to:
A) sickness or death in the immediate family
of the respondent, the Department representative or the authorized
representative of the respondent;
B) court or administrative hearing dates
scheduled prior to the issuance of the notice of hearing;
C) the need to secure counsel;
D) the unavailability of a witness;
and
E) adding or amending the
charges in the complaint.
2) No request for a continuance shall be
granted without notice to all parties and an opportunity to object on the
record. All motions for continuance shall be disposed of by written
order.
3) If a continuance is
requested due to the lack of a certified court reporter or interpreter, the
party seeking a continuance must demonstrate due diligence in seeking that
service for the hearing date.
4)
Notices of a continued hearing date need not include any restatement of the
rights of the parties.
l) Attendance of Witnesses
A party or ALJ may subpoena a witness by requesting that the
Chief ALJ issue a subpoena to compel the attendance of the witness. The request
shall be made at least 14 calendar days before the hearing. Requests for
subpoenas made less than 14 calendar days before the hearing require the leave
of the Chief ALJ or the ALJ. Witness fees and travel expenses for persons other
than Department, private agency or temporary services agency employees are the
responsibility of the party requesting the subpoena.
m) Grounds for Entry of a Final
Administrative Decision before Hearing
The Chief ALJ or the ALJ shall recommend licensure action to
the Board, without further hearing, when:
1) the Department, the Board or a court of
competent jurisdiction has already made a final decision on the issue as a
result of a previous administrative hearing or court decision;
2) the respondent does not file an answer
within 15 calendar days after the day the Notice of Administrative Hearing was
filed with the Administrative Hearing Unit;
3) the respondent has stated that the
respondent does not contest the entry of adverse licensure action;
4) the right to an administrative hearing has
been abandoned pursuant to subsection (n); or
5) the issue is otherwise not within the
jurisdiction of the Administrative Hearing Unit.
n) Abandonment of Right to Administrative
Hearing/Default
1) The Administrative Hearing
Unit shall find that the respondent has abandoned the right to an
administrative hearing when:
A) the respondent
has not filed an answer to the Notice of Administrative Hearing within 15
calendar days after the Notice was filed with the Administrative Hearing
Unit;
B) the respondent or the
respondent's authorized representative has failed to appear at the scheduled
pre-hearing or hearing and failed to respond to the written notification of the
finding of abandonment within 30 days, showing good cause why the finding
should be vacated;
C) the
respondent failed to notify OCWEL or the Chief ALJ or ALJ of a change of
address and a Notice of Administrative Hearing, sent to the respondent's last
known address, was returned as undeliverable, unclaimed, refused, moved or no
forwarding address; or
D) the
respondent has filed a relinquishment of license on the form prescribed by the
Department.
2) The
Administrative Hearing Unit shall find that the Department or the respondent
has abandoned the right to an administrative hearing when the Department or the
respondent or the respondent's authorized representative, without good cause,
fails to appear at a hearing or pre-hearing conference without having received
a continuance.
3) Any party seeking
to vacate a finding of abandonment under subsections (n)(1)(A) and (B) shall
file a motion within 30 days after notice of the entry of a finding of
abandonment or default showing good cause why the party failed to appear. A
recommendation to the Board regarding licensure action will be entered:
A) at the end of 30 days, if the respondent
does not file a motion to vacate; or
B) when the Administrative Hearing Unit
determines that good cause for the failure to appear does not exist.
o) Record of an
Administrative Hearing
The Chief ALJ or ALJ shall maintain the record of the
administrative hearing and the final administrative decision. All final
administrative decisions shall be available to any party for public inspection
during regular business hours. However, confidential information shall be
deleted in accordance with 89 Ill. Adm. Code 431 (Confidentiality of Personal
Information of Persons Served by the Department of Children and Family
Services).
p) Recommendation
of Administrative Law Judge
1) The ALJ shall
prepare a recommendation, along with findings of fact and conclusions of law,
as to whether to suspend the respondent's license, revoke the respondent's
license, allow the respondent's license to continue in good standing, or take
any other action regarding the license. The ALJ shall submit the hearing record
and recommendation to the Board and all parties. The parties shall have 20
calendar days to file exceptions and a brief to the recommendation of the ALJ.
The exceptions shall be filed with OCWEL for consideration by the Board. The
parties shall have 20 additional calendar days to respond to the exceptions and
brief filed by any other party.
2)
The Board shall accept the ALJ's findings of fact as true unless it finds that
the findings of fact are contrary to the manifest weight of the evidence. The
Board may:
A) issue a final administrative
decision by accepting the recommendation of the ALJ;
B) issue a final administrative decision by
making its own findings of fact or conclusions of law that shall be based
solely on the record; or
C) remand
the case to the Administrative Hearing Unit for further proceedings. When the
Board remands a case, it shall issue a written order specifying the nature and
scope of the additional proceedings. The Administrative Hearing Unit shall
schedule a new hearing date that shall be between 15 and 90 calendar days after
the date of the remand order. The Administrative Hearing Unit shall notify all
parties of the new date. The ALJ shall issue a supplemental recommendation and
shall serve a copy on all parties. The Board shall review the supplemental
recommendation in the same manner as the initial recommendation.
