Section 510.5  Scope and Purpose

 

a)         This Part governs the appeals process for customers of the Department of Human Services-Office of Rehabilitation Services (DHS-ORS).  Specifically this Part covers hearings of grievances under various DHS-ORS programs, including, Vocational Rehabilitation Services, Home Services, the Vending Facility Program for the Blind, Community and Residential Services for the Blind and Visually Impaired, and issues concerning school records and sex equity related to DHS-ORS State Schools.

 

b)         The grievant and DHS-ORS may informally agree to resolve disputed issues at any time during the appeal process prior to the issuance of a hearing decision.

 

(Source:  Amended at 23 Ill. Reg. 13195, effective November 15, 1999)

 

Section 510.10  General Information

 

           

General Provisions

 

a)         A grievant who is not satisfied with an action taken by DHS-DRS, or with the failure of DHS-DRS to take action, is entitled to a hearing.  A customer of the Vocational Rehabilitation program may also request mediation.

 

b)        Any and all notices and communications to DHS-DRS made pursuant to this Part should be in writing.  Nonwritten communications will be accepted if the information required in subsection (b)(6) of this Section is provided.  All nonwritten communications shall be documented by DHS-DRS.

 

c)         A grievant may appoint a representative in accordance with Section 510.40(e)(2), who may exercise any right of the grievant on the grievant's behalf.  A grievant may only designate one representative at a time.  The designation must be in writing or on the record.

 

d)        All time periods related to communications arising under this Part commence on the date of receipt (receipt is presumed 5 days after the date of postmark or on the day of delivery for hand delivered items) or, if a nonwritten form of communication, on the date of receipt.

 

e)         A request for a hearing by any person not a "grievant" cannot be heard by DHS-DRS pursuant to this Part.

 

f)         The request for a hearing should include the specific determination and the date of the determination or, if appealing inaction, the date the action was requested, and specific identification of any other matter that is being appealed, but if this information is not readily available to the grievant, the grievant must supply sufficient information for DHS-DRS to identify the specific action or inaction that is being appealed.

 

g)        Should a grievant improperly request an appeal and other procedures for appeal are available, DHS-DRS will advise the grievant of the proper appeal process.

 

h)        Failure of a grievant to follow procedures as set forth in this Part or failure to request an appeal within the specified time frames found in Section 510.80 shall result in dismissal of the appeal except if the failure to follow procedure was a result of DHS-DRS failure to provide required notice or information.

 

i)          After a request for a hearing is filed, the grievant or DHS-DRS may initiate attempts to resolve the grievance informally.  The grievant and the appropriate DHS-DRS employee may agree to resolve disputed issues, at any time during the appeals process, prior to the issuance of the hearing decision.  If prior to the hearing there is mutual agreement on an issue under dispute, this will remove the need for a hearing on that issue.

 

j)          DHS-DRS, and the Department of Healthcare and Family Services in the case of Home Services Program (HSP) hearings, will assume all administrative costs of the appeal (i.e., interpreters, pursuant to Section 510.40(b), and record, pursuant to Section 510.80(e)) but will not assume costs personally incurred by the grievant because of the proceeding (e.g., legal fees, travel, witness costs, and room and board).

 

(Source:  Amended at 32 Ill. Reg. 10047, effective June 26, 2008)

 

Section 510.20  What May Be Appealed

 

The following may be appealed under this Part:

 

a)         DHS-ORS' refusal to provide any service it is authorized to provide;

 

b)         modification of any service currently provided to the customer by DHS-ORS, termination of a service or case closure, unless agreed to by the customer and DHS-ORS;

 

c)         a determination that a customer is ineligible for services;

 

d)         issues related to sex equity at DHS-ORS schools, set forth in 89 Ill. Adm. Code 829;

 

e)         refusal of the schools to permit modifications to a student's records, set forth in 89 Ill. Adm. Code 765.60(a)(1);

 

f)         inaction of DHS-ORS employees as defined in Section 510.10;

 

g)         dissatisfaction of a licensed vendor in the Business Enterprise Program for the Blind with any action of DHS-ORS arising from the administration of the Business Enterprise Program for the Blind; and

 

h)         dissatisfaction of a customer of the Community Residential Services for the Blind and Visually Impaired (CRSBVI) program as set forth in 89 Ill. Adm. Code 730, Subpart D.

 

(Source:  Amended at 27 Ill. Reg. 9576, effective June 13, 2003)

 

Section 510.30  What May Not Be Appealed

 

The following may not be appealed under this Part:

 

a)         changes in services or procedures over which DHS-ORS exercises no discretion or control;

 

b)         changes in services or procedures which are mandated by federal or State law or regulation;

 

c)         failure to provide services which DHS-ORS, in accordance with federal or State law, regulations, and the State VR Plan or other plans submitted to the federal government by DHS-ORS as a condition of receiving federal funding cannot provide;

 

d)         the establishment of, and provisions contained in, an Individualized Educational Program (IEP) and other matters as governed by 89 Ill. Adm. Code 828 (Educational Facilities), except as set forth in Section 510.20(d) and (e);

 

e)         all recommendations for decisions and procedures for the adjudication of benefits under the federal Social Security Act which are made by DHS-ORS under its authority from the United States Department of Health and Human Services, Social Security Administration (42 USC 405);

 

f)         issues challenging the legality of DHS-ORS rules;

 

g)         discipline of a vendor under the Vending Facilities Program for the Blind, as set forth in 89 Ill. Adm. Code 650;

 

h)         student discipline, as set forth in 89 Ill. Adm. Code 827;

 

i)          DHS-ORS findings relating to the evaluation of rehabilitation facilities, as set forth in 89 Ill. Adm. Code 530;

 

j)          a grievance which has already been decided through the appeal process as set forth in this Part;

 

k)         an action taken by DHS-ORS which does not affect the grievant (e.g., a customer wishing to appeal DHS-ORS terminating sponsorship of another customer in training for failing to maintain the grade point average required in 89 Ill. Adm. Code 590.270);

 

1)         a grievance filed under the Americans with Disabilities  Act (42 USC 12101); and

 

m)        an appeal of a requirement to have a Teletypewriter/Telephone Device for the Deaf (TTY/TDD) as a condition of a contract.

 

(Source:  Amended at 23 Ill. Reg. 13195, effective November 15, 1999)

 

Section 510.40  Grievant Rights

 

a)         DHS-DRS shall make the grievant aware, in a language that is understandable to the grievant, of the right to appeal pursuant to this Part, at the following times or events:

 

1)         upon application for services;

 

2)         upon denial of application;

 

3)         after the initiation, or change, of services;

 

4)         upon termination of a service;

 

5)         upon closure;

 

6)         upon enrollment in a DHS-DRS school; and

 

7)         upon entrance into the Business Enterprise Program for the Blind.

 

b)         The grievant may request an interpreter or reader, either sign (if sign-language is the grievant's usual mode of communication) or language (if the grievant's normally spoken language is other than English), to attend the hearing.  The request should be made 10 days before the date of the hearing.  A visually impaired grievant may either request a reader to read materials provided by DHS-DRS in preparation for the hearing or request that the materials be provided in Braille, large print or audio tape.  The request must be made within 5 working days after being informed of the date of the hearing.

 

c)         All meetings with the grievant pursuant to this Part must occur at a time and location convenient to both parties.

 

d)         If the grievant is a Customer of the VR Program (89 Ill. Adm. Code:  Chapter IV, Subchapter b) or Community Residential Services for the Blind and Visually Impaired (CRSBVI) program (89 Ill. Adm. Code:  Chapter IV, Subchapter e), the grievant may have the right to the assistance of the Client Assistance Program (CAP) in the preparation, presentation and representation of the matters to be heard. For Customers of the Home Services Program (89 Ill. Adm. Code: Chapter IV, Subchapter d), the grievant may have the right to the assistance of the Illinois Department on Aging's Home Care Ombudsman Program in the preparation, presentation and representation of the matters to be heard.  DHS-DRS must inform the Customer of this right at the time of request for services, application and referral for services; at service initiation or modification; and at closure, as well as when the grievant requests a hearing.

 

e)         After a request for a hearing is received by DHS-DRS, the grievant will be provided with written notification of the grievant's right to:

 

1)         review the case file and other related documents;

 

2)         be represented by a representative during any informal resolution conference in accordance with Section 510.100(d), during any mediation process pursuant to Section 510.103(h) or at a hearing by filing an appearance with the Hearings Coordinator, pursuant to Section 510.105(c);

 

3)         an explanation of the appeal process as set forth in this Part;

 

4)         withdraw the appeal at any time during the process, in which case the grievant cannot request a reopening of the appeal;

 

5)         a timely and impartial hearing;

 

6)         confidentiality of these proceedings, as set forth in 89 Ill. Adm. Code 505.10 and pursuant to either Section 510.100(a), 510.103(a) or 510.105(a);

 

7)         a continuation of services, as set forth in Section 510.60; and

 

8)         have DHS-DRS employees involved in the appealed action present at the hearing or any informal resolution conference, and to question them, with the exception listed in Section 510.105(g)(2).

 

(Source:  Amended at 46 Ill. Reg. 15312, effective August 29, 2022)

 

Section 510.50  DHS-ORS Rights

 

DHS has the right to:  

 

a)         refuse to hear appeals pursuant to Section 510.30;

 

b)         have a DHS-ORS attorney present at any proceeding under this Part;

 

c)         cooperation by the grievant; and

 

d)         consolidate into a single hearing all issues relating to a grievant or an issue raised by several grievants that arise out of the same set of facts and circumstances.

 

(Source:  Amended at 27 Ill. Reg. 9576, effective June 13, 2003)

 

Section 510.60  Service Notice

 

a)         This Section applies to VR and HSP customers only.

 

b)         When an individual applies for VR or HSP services from DHS-ORS, the individual must be informed that DHS-ORS notifies customers whenever it denies, modifies or terminates a service or services, if not mutually agreed upon, and of the right to action within 60 calendar days after a request for an application.  DHS-ORS must send the customer a service notice at least 15 working days before the effective date of the action.

 

c)         Any action mutually agreed upon must be so documented in the customer's case file.

 

d)         The service notice must:

 

1)         contain the name, address and telephone number of the person to whom the request for a hearing must be made;

 

2)         outline the action;

 

3)         state the basis for the action;

 

4)         give the effective date of the action; and

 

5)         inform the customer of the right to a hearing in the matter and of the specific means of initiating the hearing.

 

e)         For issues related to the disposition of services during the hearing process, the customer must be advised that DHS-ORS will continue to provide the disputed services until DHS-ORS final decision has been rendered unless:

 

1)         the services being provided were obtained through misrepresentation, fraud, collusion or criminal conduct on the part of the customer;

 

2)         the service has been planned but not commenced; or

 

3)         the customer, or as appropriate, the customer's parent, family member, guardian, advocate or duly authorized representative requests the service be terminated.  Continuances in the proceeding shall not be issued for the purpose of extending services.

 

f)         A service that is the subject of an appeal will not continue if the change is:

 

1)         initiated by the customer;

 

2)         unilaterally initiated by a service provider other than DHS-ORS;

 

3)         planned or authorized, but not commenced; or

 

4)         contraindicated on the basis of medical or psychological information contained in the customer's case record.

 

g)         In no event will a disputed service continue past the ending date on the Individualized Plan for Employment (IPE) for VR and Community Residential Services for the Blind and Visually Impaired (CRSBVI) customers unless the customer and counselor agree to an extension IPE to be in effect pending the outcome of the hearing.

 

(Source:  Amended at 27 Ill. Reg. 9576, effective June 13, 2003)

 

Section 510.70   Level I Hearings (Repealed)

 

(Source:  Repealed at 23 Ill. Reg. 13195, effective November 15, 1999)

 

Section 510.80  Request for a Hearing

 

a)         If dissatisfied with any determination made by DHS-ORS concerning the furnishing, timeliness or denial of services, the customer may request a timely review of these determinations.  This request for a hearing shall be made through the Hearings Coordinator or by completing a request for hearing (IL 488-1949) and presenting it to DHS-ORS.  The person receiving the request shall immediately forward it to the Hearings Coordinator.

 

b)         A grievant must request a hearing within the following time limits:

 

1)         if the request is for review of an action by DHS-ORS VR program or HSP, it must be received within 30 calendar days after the date the grievant receives notice, or knew or should have known of the issue being grieved, or 35 calendar days after the date of the post mark on the notice, if the customer was informed by mail, whichever is later;

 

2)         if the request relates to an available vending facility location, it must be made within 5 working days after receipt by the grievant of the notice of selection; or

 

3)         if the grievance pertains to the conduct of a customer in the adult residential training program for persons with visual disabilities, the request must be received within 2 working days after the date of the action or inaction being grieved.

 

c)         The request for a hearing must state whether the grievant is unable to attend a hearing in the local DHS-ORS facility due to the grievant's disability. The Hearings Coordinator or Impartial Hearing Officer will contact the grievant or, as appropriate, the grievant's representative to determine a mutually acceptable date for the hearing.  Except as set forth in Section 510.80(j)(3) and as specified by the Department of Public Aid for HSP hearings, in no case shall the hearing be held later than 60  calendar days after receipt of the grievant's request, unless the parties agree to a specific extension of time.

 

d)         At least 10  days prior to the scheduled date of the hearing, the DHS Hearings Coordinator or Impartial Hearing officer shall send the grievant a letter, certified mail, return receipt requested:

 

1)         acknowledging the request for the hearing;

 

2)         stating the date, time and location for the hearing;

 

3)         stating the name and address of the individual who shall act as the Impartial Hearing Officer;

 

4)         containing a statement of the issues being grieved;

 

5)         informing the grievant of the rights accorded under this Part;

 

6)         informing the grievant of the options of the informal resolution conference and, for vocational rehabilitation customers, of the Mediation Process; and

 

7)         directing the grievant to the proper individual to whom to direct the request for these options in accordance with Sections 510.100 and 510.103 of this Part.

 

e)         DHS-ORS shall make an audio tape recording of the hearing proceedings and will, upon request, provide one copy to the grievant at no cost.  If an audio tape is not an accessible format for the grievant, upon request of the grievant, DHS-ORS shall prepare a transcript in an accessible format, and provide one copy of the transcript to the grievant at no cost.

 

f)         The official record of the hearing shall consist of:

 

1)         all pleadings, motions, and rulings;

 

2)         evidence, including testimony and exhibits;

 

3)         a statement of matters officially noticed;

 

4)         offers of proof;

 

5)         objection and rulings thereon;

 

6)         the Impartial Hearing Officer's decision or findings of fact and recommended decision, as applicable; and

 

7)         if applicable, documents and decisions from an Associate Director's Review (Section 510.110).

 

g)         For grievances arising from the VR Program, findings of fact and the decision, prepared by the Impartial Hearing Officer, will be mailed within 30 calendar days after the adjournment of the Hearing.  The decision of the Impartial Hearing Officer shall be binding on DHS-ORS.  DHS-ORS shall initiate implementation of the decision on the date specified in the decision, but no later than 20 calendar days after its receipt.  No employee of DHS-ORS shall interfere with the implementation of the decision.

 

h)         For grievances pertaining to the conduct of a customer in the adult residential training program for persons with visual disabilities, the findings of fact shall be provided within 2 working days after the adjournment of the hearing.

 

i)          For a grievance arising from the selection of a vendor for a vending location in the Business Enterprise Program for the Blind, the Impartial Hearing Officer shall submit his/her recommended decision to the Associate Director within 15 days after the date of adjournment of the hearing.  The recommendation shall be based upon the record of the hearing, citing applicable provisions of law and policy.  The Associate Director shall mail the final decision on the appeal to the grievant, and as appropriate, the grievant's representative, within 5 working days after receiving the Impartial Hearing Officer's recommendation.  The Associate Director's decision shall state the principal issues and relevant facts brought out at the hearing, pertinent provisions in law and DHS-ORS policy, the reasoning that led to the decision, the right to appeal pursuant to Section 510.120(c), and the effective date of the decision and shall have attached a copy of the Impartial Hearing Officer's recommendation.

 

j)          For hearings arising from HSP, in addition to the other provisions contained in this Part, the following procedures shall apply:

 

1)         after receipt of the request for the hearing, pursuant to Section 510.80(b)(1), the Hearings Coordinator shall forward the request to DPA which, pursuant to Medicaid Regulations, shall have administrative authority over all hearings arising from HSP;

 

2)         the hearing shall be conducted by an Impartial Hearing Officer approved by DPA;

 

3)         DPA's rules, as set forth at 89 Ill. Adm. Code 104, shall apply, except 89 Ill. Adm. Code 104.10, 104.11, and 104.80. All other rules contained in this Part shall apply to the extent they do not conflict with DPA's rules;

 

4)         DPA, DHS and the Impartial Hearing Officer shall make any reasonable accommodation necessary to ensure that the customer is able to file an appeal and participate in the hearing;

 

5)         the hearing shall be held in the local DHS-ORS office unless, because of the grievant's disability, the grievant is unable to attend the hearing in the local DHS-ORS office.  In such instances, the hearing shall be held in the grievant's home; and

 

6)         the decision shall be issued and implemented within 90 days after the date of the request for hearing; however, that time shall be extended by the length of any continuance or postponement requested or agreed to by the grievant.

 

(Source:  Amended at 27 Ill. Reg. 9576, effective June 13, 2003)

 

Section 510.90  Impartial Hearing Officers

 

a)         A hearing must be heard by an individual randomly selected from the list of DHS-ORS approved Impartial Hearing Officers and designated by the Associate Director except:

 

1)         for grievances arising from modification of school records or school sex equity, the Impartial Hearing Officer shall be the DHS-ORS Director of Education Services or his/her designee; and

 

2)         for grievances arising from HSP, the Impartial Hearing Officer shall be approved by DPA.

 

b)         If the grievant, or the parent, family member, guardian, advocate or duly authorized representative of the grievant, believes the Impartial Hearing Officer selected to conduct the hearing is biased against the grievant, or the parent, family member, guardian, advocate or duly authorized representative of the grievant, or has a conflict of interest, the grievant may make a written request to the Hearings Coordinator at least 5 working days prior to the hearing for removal of the individual thought to be biased or to have a conflict of interest and for assignment of another individual as the Impartial Hearing Officer.  The request must be accompanied by an affidavit signed and dated by the grievant, or as appropriate, a parent, family member, guardian, advocate or duly authorized representative of the grievant, setting out specific facts upon which the claim of prejudice or conflict of interest is based.

 

c)         When an affidavit, as described in subsection (b) above, is received, the DHS Hearings Coordinator shall assign another individual to serve as the Impartial Hearing Officer if it is determined by the DHS Hearings Coordinator and other appropriate staff that prejudice or conflict of interest exists.

 

d)         The Impartial Hearing Officer has the power to:

 

1)         control the conduct of the hearing to prevent irrelevant or immaterial discussion;

 

2)         rule upon all motions and other matters arising in the course of the hearing, including, but not limited to, a party's motion or objection concerning the admissibility of evidence;

 

3)         examine any of the witnesses at any time or request additional information from either party; and

 

4)         require the parties, at any stage of any hearing or after all parties have completed the presentation of their evidence, to present further evidence including, but not limited to, the production of any and all documents, books, paper and accounts the Impartial Hearing Officer deems material or relevant to any issue.

 

(Source:  Amended at 23 Ill. Reg. 13195, effective November 15, 1999)

 

Section 510.100  Informal Resolution Conference

 

a)         Every proceeding pursuant to this Section is to be confidential and not open to the general public unless the grievant so requests.

 

b)         The Informal Resolution Conference is an informal review of the decision with the goal of mutually resolving the issues being appealed.  Procedures set forth in the Code of Civil Procedures [735 ILCS 5] do not apply.

 

c)         A grievant may request an Informal Resolution Conference, in the period between the filing of the appeal and the hearing decision, by contacting the office out of which the grievant receives services.

 

d)         The grievant may choose to have a representative present at the conference.

 

e)         If the grievance pertains to the customer's VR program or HSP, the supervisor of the DHS-ORS employee whose action is being grieved must schedule and chair the Informal Resolution Conference at a time and date convenient to all parties.  For grievances by a blind vendor, the chair shall be the Administrator or that person's supervisor.  The grievant must be notified of the name, address and telephone number of the DHS-ORS employee chairing the meeting.  The informal resolution conference shall be held in the local DHS-ORS facility unless, in the request, the grievant indicates that due to the grievant's disability the grievant cannot attend at the local DHS-ORS facility. In this case the conference shall be held in the grievant's home.

 

f)         During the Informal Resolution Conference the chair should:

 

1)         initiate the conference with an opening statement explaining the purpose of the conference;

 

2)         assist the parties in determining and clarifying the issues;

 

3)         facilitate a fair and complete presentation and discussion of relevant information, both oral and written;

 

4)         as appropriate, summarize the positions of the grievant and DHS-ORS;

 

5)         provide an opportunity to discuss settlement or agree on a course of action; and

 

6)         if no resolution is reached, assure the grievant is made aware of the next step of the appeal process.

 

g)         The Informal Resolution Conference is concluded either with a mutually agreed upon resolution of the issue or some of the issues, or with the conclusion that the issues cannot be resolved and the grievance should proceed to hearing.  At the conclusion of the informal resolution process, the DHS-ORS staff person chairing the conference shall reduce any mutually agreed upon resolutions to writing.  The confirmation of the agreement must be signed by both the grievant and the chair.  The confirmation must also include the agreement of the customer to withdraw the grievance on the agreed issues.  The agreement should list all agreed issues and all outstanding issues.  Unless circumstances prohibit, the agreement should be reduced to writing while all parties are still there.  If all disputed issues are resolved, the parties should inform the Hearings Coordinator to withdraw the grievance.

 

h)         Sessions held as a part of the informal resolution conference shall be scheduled in a timely manner and shall not deny or delay the grievant's right to pursue resolution of the dispute through an impartial hearing held within the applicable time period set out in this Part or any other right under this Part.

 

(Source:  Amended at 27 Ill. Reg. 9576, effective June 13, 2003)

 

Section 510.103  Mediation Process for the Vocational Rehabilitation Program

 

a)         Every mediation pursuant to this Section is to be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding.  If deemed necessary by the assigned qualified and impartial mediator, parties to the Mediation Process may  be required to sign a confidentiality pledge prior to commencement of the process.

 

b)         The customer shall be informed of the availability of the Mediation Process each time the customer is advised of the right to appeal.  The Mediation Process is available whenever a hearing concerning vocational rehabilitation services is requested under this Part.

 

c)         The Mediation Process shall be voluntary on the part of the grievant and of DHS-ORS and shall be conducted by a qualified and impartial mediator who is trained in effective mediation techniques.  The mediation may be terminated at any time by either party or by the mediator.

 

d)         DHS-ORS shall maintain a list of qualified mediators who shall be knowledgeable in the laws and regulations relating to the provisions of vocational rehabilitation services.  Mediators shall be selected from this list and assigned on a random basis by the Hearings Coordinator from the list of qualified mediators maintained by DHS-ORS.

 

e)         To request the assignment of a mediator to resolve the issues in dispute, the customer shall contact the Hearings Coordinator. 

 

f)         Sessions held as a part of the Mediation Process shall be scheduled in a timely manner and shall not deny or delay the grievant's right to pursue resolution of the dispute through an impartial hearing held within the applicable time period set out in this Part or any other right under this Part.  Mediation sessions shall be scheduled by the mediator.

 

g)         The mediation sessions shall be held at a location that is mutually agreed upon.

 

h)         The customer or, as appropriate, the customer's representative may submit evidence and information to support the position of the customer.  The Department may also submit evidence and information that supports its position.

 

i)          Any agreement reached by the parties during the mediation process shall be set forth in a written mediation agreement signed by both parties.  The agreement must also include the agreement of the customer to withdraw the grievance on the agreed issues.

 

j)          Nothing in this Section shall be construed to preclude the parties from informally resolving the dispute prior to proceedings under this Section.

 

k)         The cost of the mediator shall be paid by DHS-ORS.

 

(Source:  Amended at 27 Ill. Reg. 9576, effective June 13, 2003)

 

Section 510.105  Conduct of Hearings

 

a)         Every proceeding pursuant to this Section is to be confidential and not open to the general public unless requested to be so by the grievant.

 

b)         Procedures set forth in the Code of Civil Procedure [735 ILCS 5], except as provided in subsection (g) of this Section, do not apply to the procedures contained in this Section.

 

c)         The grievant must notify DHS-ORS Hearings Coordinator of the appointment of a personal representative by filing, no later than 3 working days in advance of a hearing, a notice of appearance stating the personal representative's name, address and telephone number, identifying the grievant represented, and signed by the grievant.  If the grievance pertains to the conduct of a customer of the adult residential training program for persons with visual disabilities, the notice must be made no later than 1 working day in advance of the hearing. The notice must be accompanied by appropriate consent to the release of confidential information to the representative, if one is not already on file.

 

d)         At least 3 working days prior to the hearing, the grievant and the DHS-ORS staff person who has taken the action being grieved must provide each other and the Impartial Hearing Officer with a list of witnesses, copies of documents not in the possession of the other party, and a summary of the evidence that they plan to present at the hearing.  If the grievance pertains to the conduct of a customer of the adult residential training program for persons with visual disabilities, the information must be shared within 1 working day prior to the hearing.

 

e)         All parties involved in the hearing must avoid repetitive continuances so that the subject matter of the grievance may be resolved expeditiously.  A hearing may for good cause shown be continued by the Impartial Hearing Officer.  "Good cause" means death in the family, personal injury or illness that reasonably prohibits the grievant from attending the hearing, or sudden and unexpected emergency, or other circumstances beyond the grievant's control that reasonably prevents the grievant from attending the hearing.  In the absence of an emergency, notice of the request must be given in writing to the other party and the Impartial Hearing Officer no later than 3 working days prior to the original hearing date.  In the absence of an emergency, if the grievance pertains to the conduct of a customer of the adult residential training program for persons with visual disabilities, the notice must be provided to the other party and the Impartial Hearing Officer no less than 1 working day prior to the original hearing date.  The granting of continuances for hearings arising from HSP shall be governed by DPA.

 

f)         The grievant shall have the responsibility to prove by the preponderance of the evidence that the action or inaction by DHS-ORS was not in accordance with federal or State laws or regulations, against DHS-ORS policy, not in accordance with the grievant's IPE (89 Ill. Adm. Code 572) or HSP Service Plan (89 Ill. Adm. Code 684), or inappropriate for the customer.  The Impartial Hearing Officer shall inform the grievant of this requirement at the beginning of the hearing.

 

g)         Evidence

 

1)         The rules of evidence and privilege as applied in civil cases in the Circuit Courts of this State shall be followed except that any relevant evidence not admissible under those rules of evidence that is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs, has probative value, and is relevant and material to the facts and issues may be admissible.

 

2)         DHS-ORS employees directly involved in the contested action will be present to testify and can be questioned by the grievant.  However, if the person is no longer employed by DHS-ORS and declines to attend the hearing after DHS-ORS has made a reasonable attempt to secure his/her attendance, the person most knowledgeable about the case will attend.

 

3)         Only information bearing directly on the issue under review, pursuant to Section 510.20, may be introduced from the grievant's case file.  The Impartial Hearing Officer may not consider any information that has not been made available to the other party.

 

4)         Either party may present information and evidence in addition to the case file that must also be made available to the other party at least 3 working days prior to the hearing or by stipulation at the hearing.

 

5)         The grievant and DHS-ORS may call any person as a witness and conduct examination and cross-examination.

 

6)         The grievant and DHS-ORS may, by stipulation, agree upon any facts involved in the proceeding.  The facts stipulated must be considered as evidence in the proceedings.

 

h)         The following is the order of the proceedings:

 

1)         presentation, arguments, and disposition of all preliminary motions and matters;

 

2)         opening statements;

 

3)         evidence presented by the grievant;

 

4)         evidence presented by DHS-ORS;

 

5)         rebuttal by either or both sides;

 

6)         closing statements by the grievant;

 

7)         closing statements by DHS-ORS; and

 

8)         rebuttal by grievant.

 

i)          A hearing will not be adjourned until the Impartial Hearing Officer has received all information agreed upon within the time the parties have agreed to provide it.

 

j)          The Impartial Hearing Officer may take one of several courses of action in making a decision, which include, but are not limited to the following:

 

1)         find in favor of the grievant;

 

2)         uphold the determination or action of DHS-ORS;

 

3)         accept a withdrawal of the appeal confirmed in writing signed by the grievant, or as appropriate, a parent, family member, guardian, advocate or duly authorized representative of the grievant that must be filed with the Hearings Coordinator;

 

4)         accept a settlement of the issues agreed to by the grievant and DHS-ORS which must include a written withdrawal of the appeal that must be filed with the Hearings Coordinator.

 

(Source:  Amended at 27 Ill. Reg. 9576, effective June 13, 2003)

 

Section 510.110  Associate Director's Review for Residential/Training Programs for Persons with Visual Impairments

 

The Associate Director may review an Impartial Hearing Officer's decision that pertains to the conduct of a customer in the adult residential training program for persons with visual impairments.  The Notice of Intent to Review shall be issued within 7 working days of the receipt of the Impartial Hearing Officer's decision.  The scope of such review shall include, but not be limited to, the consistency of the Impartial Hearing Officer's finding with applicable law and regulation, that the decision is not reasonably supported by the evidence, or the decision is arbitrary, capricious, or characterized by abuse of or clearly unwarranted exercise of discretion.  The Notice of Intent to Review shall include a listing of the issues being reviewed.  The Associate Director's decision, citing the findings and grounds, must be mailed within 12 calendar days after the Notice of Intent to Review.  This decision must be sent by certified mail, return receipt requested, to the grievant.

 

(Source:  Amended at 23 Ill. Reg. 13195, effective November 15, 1999)

 

Section 510.115  Associate Director's Decision for Hearings Regarding a Blind Vendor

 

a)         For hearings related to the grievance of a blind vendor covered under Section 510.20(g), the Impartial Hearing Officer shall provide a recommended findings and decision to the Associate Director of DHS-ORS.  The recommended findings and decision of the Impartial Hearing Officer shall be based upon the record of the hearing and shall set forth the principal issues and relevant facts adduced at the hearing, the applicable provision of law and regulation, and a recommended action.  It shall also contain findings of fact and conclusions with respect to each of the issues and basis therefore.

 

b)         Within 15 days after receipt of the recommended findings and decision, the Associate Director shall make a decision.  The Associate Director's decision shall state the principal issues and relevant facts pertinent provisions of law, regulation and program procedures, the reasoning that led to the decision, and the vendor's right to appeal to the U.S. Department of Education pursuant to 34 CFR 395.13.  A copy of the Impartial Hearing Officer's recommended findings and decision shall be attached to the Associate Director's letter.  Copies of the final decision shall be sent to the vendor and his/her personal representative and to the Administrator, Business Enterprise Program for the Blind.

 

(Source:  Amended at 27 Ill. Reg. 9576, effective June 13, 2003)

 

Section 510.120  Exhaustion of Administrative Remedies

 

a)         If the grievance pertains to the VR program, DHS-ORS administrative action becomes final:

 

1)         at any time when a mutually agreed upon resolution is reached between DHS-ORS and the grievant; or

 

2)         upon issuance of the hearing decision.

 

b)         If the grievance pertains to the conduct of a customer at the adult residential training program for persons with visual disabilities, DHS-ORS administrative action becomes final:

 

1)         7 working days after the date of the hearing decision, if no Associate Director's Review is performed; or

 

2)         if an Associate Director's Review is performed, upon the decision of the Associate Director.

 

c)         Any further appeal (other than by a vendor in the Business Enterprise Program for the Blind or by a grievant appealing sex equity or school records in DHS-ORS schools) must be made to the courts by common law writ of certiorari.  A vendor in the Business Enterprise Program for the Blind must first file an appeal with the U.S. Department of Education in accordance with the Randolph-Sheppard Act (20 USC 107 et seq.).  A grievance based on sex equity or school records must be filed with the State Board of Education.

 

d)         Any decision under this Part shall be implemented when issued within the applicable time set out in Section 510.80.  An appeal to a court shall not delay implementation.

 

(Source:  Amended at 27 Ill. Reg. 9576, effective June 13, 2003)