HB2995 104TH GENERAL ASSEMBLY

LRB104 11192 LNS 21274 b

104TH GENERAL ASSEMBLY
State of Illinois
2025 and 2026
HB2995

Introduced 2/6/2025, by Rep. Michelle Mussman

SYNOPSIS AS INTRODUCED:

105 ILCS 5/22-85.10
105 ILCS 5/22-85.15 new
105 ILCS 5/22-94

Amends the School Code. Provides that notification of the alleged misconduct and available resources shall also be provided to the employee, agent of the school, or contractor of the school who is alleged to have engaged in sexual misconduct. Requires the governing body of each school district, charter school, or nonpublic school to implement an investigation procedure under which an employee, agent of the school, or contractor of the school is alleged to have engaged in sexual misconduct. Provides that any adverse determination issued to an employee, agent of the school, or contractor of the school for events that occurred prior to the effective date of the amendatory Act shall be considered null and void only if any and all investigations conducted by a regulatory third party entity resulted in a finding that the allegation was false, unfounded, indeterminable, or unsubstantiated or a previous finding was otherwise overturned or expunged on appeal. Requires the adverse determination and related documents to be removed from the applicable personnel records within 14 business days after written notice. Makes other changes.

A BILL FOR

AN ACT concerning education.

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

Section 5. The School Code is amended by changing Sections 22-85.10 and 22-94 and by adding Section 22-85.15 as follows:

(105 ILCS 5/22-85.10)

Sec. 22-85.10. Notification Parental notification of alleged sexual misconduct.

(a) The governing body of each school district, charter school, or nonpublic school shall implement a procedure under which notice is provided to the parents or guardians of an enrolled student, unless the student is at least 18 years of age or emancipated, with whom an employee, agent of the school, or a contractor of the school is alleged to have engaged in sexual misconduct as defined in subsection (c) of Section 22-85.5 of this Code. Notice provided to the parent or guardian of a student with a disability must not conflict with the student's individualized education plan or a Section 504 plan under the federal Rehabilitation Act of 1973 and the requirements of applicable State or federal law. The procedure shall include:

(1) Consideration of the time frame for providing notice to the student and the student's parents or guardians if the alleged sexual misconduct is also being investigated by the Illinois Department of Children and Family Services or law enforcement as described in Section 22-85 of this Code.

(2) Prior to notification of the student's parents or guardians, notification must first be provided to the student in a developmentally appropriate manner and include:

(A) that notice will be given to the student's parents or guardians;

(B) what information will be included in the notice to the student's parents or guardians;

(C) available resources for the student within the school and community in accordance with Article 26A of this Code and available counseling services under Section 3-550 of the Mental Health and Developmental Disabilities Code; and

(D) beginning July 1, 2025, the name and contact information for the domestic and sexual violence and parenting resource coordinator under Section 26A-35 of this Code.

(3) After notification of the student as required under paragraph (2), the student's parents or guardians shall be notified in writing:

(A) of the alleged misconduct; and

(B) of available resources for the student within the school and the community in accordance with Article 26A of this Code and, beginning on July 1, 2025, the name and contact information for the domestic and sexual violence and parenting resource coordinator under Section 26A-35 of this Code.

(4) Notification must be provided as soon as feasible after the employing entity becomes aware that alleged misconduct may have occurred, subject to the requirements of subsection (f) of Section 22-85 of this Code.

(5) Notification of the same information provided in paragraph (3) shall be contemporaneously provided to the employee, agent of the school, or contractor of the school who is alleged to have engaged in sexual misconduct, as defined in Section 22-85.5 of this Code, and the employee's, agent's, or contractor's exclusive bargaining representative, if applicable.

(b) The governing body of each school district, charter school, or nonpublic school shall implement a procedure under which notice is provided to the parents or guardians of a student, subject to subsection (a), when any formal action has been taken by the governing body relating to the employment of the alleged perpetrator following the investigation of sexual misconduct, including whether employment was terminated or whether the governing body accepted the resignation of the employee. Notice provided to the parents or guardians of a student with a disability must not conflict with the student's individualized education plan or a Section 504 plan under the federal Rehabilitation Act of 1973 and the requirements of applicable State or federal law. The procedure shall include:

(1) Consideration of the time frame for providing notice to the student and the student's parents or guardians if the alleged sexual misconduct is also being investigated by the Illinois Department of Children and Family Services or law enforcement as described in Section 22-85 of this Code.

(2) Prior to notification of the student's parents or guardians, notification must first be provided to the student in a developmentally appropriate manner and include:

(A) that notice will be given to the student's parent or guardian of the governing body's action;

(B) what information will be included in the notice to the student's parents or guardians;

(C) available resources for the student within the school and community in accordance with Article 26A of this Code and available counseling services under Section 3-550 of the Mental Health and Developmental Disabilities Code; and

(D) beginning July 1, 2025, the name and contact information for the domestic and sexual violence and parenting resource coordinator under Section 26A-35 of this Code.

(3) After notification of the student as required in paragraph (2), the student's parents or guardians shall be notified in writing:

(A) of the governing body's action;

(B) whether a report concerning the alleged sexual misconduct was or will be submitted to the State Superintendent of Education and the applicable regional superintendent of schools pursuant to Section 10-21.9 of this Code; and

(C) of available resources for the student within the school and the community in accordance with Article 26A of this Code and, beginning on July 1, 2025, the name and contact information for the domestic and sexual violence and parenting resource coordinator under Section 26A-35 of this Code.

(4) Notification must be provided as soon as feasible after the board action is taken, subject to the requirements of subsection (f) of Section 22-85 of this Code.

(5) For the purposes of subsection (b), if the student is no longer enrolled at the time formal action is taken, sending written notice to the last known address in the student's file fulfills notification requirements.

(c) Notwithstanding any other provision of this Section, notification to the student prior to notification of the student's parents or guardians shall not be required to the extent an employee or agent of the school district, charter school, or nonpublic school deems it necessary to address an imminent risk of serious physical injury or death of a student or another person, including the victim. If prior notification to the student is not given, notification to the student shall be provided as soon as practicable and without delay following the notification to the student's parents or guardians.

(d) Subsections (a) and (b) shall not apply if the student's parent or guardian is the alleged perpetrator of the misconduct.

(Source: P.A. 102-702, eff. 7-1-23.)

(105 ILCS 5/22-85.15 new)

Sec. 22-85.15. Investigation of alleged sexual misconduct. The governing body of each school district, charter school, or nonpublic school shall implement an investigation procedure under which an employee, agent of the school, or contractor of the school is alleged to have engaged in sexual misconduct, as defined in subsection (c) of Section 22-85.5 of this Code.

(1) Consideration of the time frame for investigation may be given if the alleged sexual misconduct is also being investigated by the Department of Children and Family Services or law enforcement as described in Section 22-85 of this Code. An employer investigation shall be delayed if directed by the Department of Children and Family Services or law enforcement or a determination may be deferred as set out in paragraph (8).

(2) Unless the investigation is delayed or deferred as set forth in this Section, the school district, charter school, or nonpublic school shall begin its investigation, in good faith, as soon as practically possible following the notifications provided under Section 22-85.10 of this code, but no later than 14 days after such notification issue.

(3) The purpose of the investigation is to determine whether the allegation is substantiated as to the allegation of sexual misconduct, as defined by Section 22-85.5 of this Code, and, if so, whether any formal action will be taken.

(4) The investigator shall have:

(A) direct, in-person contact with the alleged victim;

(B) the employee, agent of the school, or contractor of the school who is alleged to have engaged in sexual misconduct, as defined by Section 22-85.5 of this Code; and

(C) in-person or telephone contact with the reporter who made the accusation, if the reporter's identity and whereabouts are available and in-person or telephone contact with any other necessary witnesses.

Contact shall only be waived if any of the individuals refuse to meet with the investigator or are determined to be inaccessible. The employee, agent of the school, or contractor of the school who is the subject of the investigation is entitled to representation through the exclusive bargaining representative, if applicable.

(5) The investigation, including the final investigative report with a determination and any recommended formal action, shall be completed within 60 days following the notifications provided under Section 22-85.10 of this Code. For good cause, the investigation timeline may be extended, one time, up to an additional 30 days.

(6) Upon completion of the formal investigation, the investigator shall make a determination regarding the allegation along with any recommended formal action. This determination shall be based upon the information gathered from other persons during the investigation and the direct observations made by the investigative staff during the investigation substantiate the allegation.

(7) The formal investigation must result in one of the following determinations:

(A) substantiated; if there is corroborated, consistent, and precise evidence substantiating the allegation of sexual misconduct, as defined by Section 22-85.5 of this Code;

(B) unsubstantiated; if there is a lack of evidence to substantiate the allegation as set out in subparagraph (A); or

(C) indeterminable; if the investigator is unable, for good cause, to gather sufficient facts to conduct a good faith formal investigation.

(8) A formal investigation result shall be considered unsubstantiated where the Department of Children and Family Services has investigated the same allegation under its jurisdiction under the Abused and Neglected Child Reporting Act and determined the allegation is unfounded, an indicated finding is expunged on appeal, or the matter was referred to law enforcement and any charges brought were not pursued, dropped, or the matter was otherwise adjudicated in favor of the employee, agent of the school, or contractor of the school.

(9) An employee, agent of the school, or contractor of the school who receives a determination of substantiated may appeal the determination and any recommended formal action by requesting a due process hearing before an independent hearing officer or the State Board of Education's list of due process hearing officers. The appeal must be made to the governing body of the school district, charter school, or nonpublic school, in writing, within 45 days of being served with a substantiated determination.

(A) The State Board of Education shall, from the master list provide, on a rotating basis, a list of 5 prospective hearing officers within 5 business days after receiving a request for a list.

(B) Within 3 days, the parties will engage in an alternating striking process until one name remains. Unless waived, the employee has the right to strike first.

(C) The scope of the hearing shall be whether the investigation supports a substantiated determination of sexual misconduct, as defined by Section 22-85.5 of this Code, along with the recommended formal action by a preponderance of the evidence. The burden at the hearing shall be on the employer.

(D) The proper parties to the hearing are the employee and the governing body of the school district, charter school, or nonpublic school. Each party has the right to retain representation, present evidence and testimony, cross-examine witnesses, and make arguments.

(E) The hearing officer may uphold the substantiated determination and any recommended formal action, uphold the substantiated determination but modify or vacate any recommended formal action, or find that the determination is unsubstantiated and vacate the recommended formal action. The hearing officer's decision shall be considered a final decision, subject to administrative review under Article 3 of the Code of Civil Procedure.

(105 ILCS 5/22-94)

Sec. 22-94. Employment history review.

(a) This Section applies to all permanent and temporary positions for employment with a school or a contractor of a school involving direct contact with children or students.

(b) In this Section:

"Contractor" means firms holding contracts with any school including, but not limited to, food service workers, school bus drivers and other transportation employees, who have direct contact with children or students.

"Direct contact with children or students" means the possibility of care, supervision, guidance, or control of children or students or routine interaction with children or students.

"School" means a public or nonpublic elementary or secondary school.

"Sexual misconduct" has the meaning ascribed to it in subsection (c) of Section 22-85.5 of this Code and applies to information or knowledge of events investigated or deferred from investigation arising after December 3, 2021 (the effective date of Public Act 102-676).

(b-5) Any adverse determination issued to an employee, agent of the school, or contractor of the school for events that occurred prior to the effective date of this amendatory Act of the 104the General Assembly shall be considered null and void only if any and all investigations conducted by a regulatory third party entity resulted in:

(1) a finding that the allegation was false, unfounded, indeterminable, or unsubstantiated; or

(2) a previous finding was otherwise overturned or expunged on appeal.

The adverse determination and related documents must then be removed from the applicable personnel records within 14 business days after written notice.

(c) Prior to hiring an applicant to work directly with children or students, a school or contractor must ensure that the following criteria are met:

(1) the school or contractor has no knowledge or information pertaining to the applicant that would disqualify the applicant from employment;

(2) the applicant swears or affirms that the applicant is not disqualified from employment;

(3) using the template developed by the State Board of Education, the applicant provides all of the following:

(A) a list, including the name, address, telephone number, and other relevant contact information of the following:

(i) the applicant's current employer;

(ii) all former employers of the applicant that were schools or school contractors, as well as all former employers at which the applicant had direct contact with children or students;

(B) A written authorization that consents to and authorizes disclosure by the applicant's current and former employers under subparagraph (A) of this paragraph (3) of the information requested under paragraph (4) of this subsection (c) and the release of related records and that releases those employers from any liability that may arise from such disclosure or release of records pursuant to subsection (e).

(C) A written statement of whether the applicant:

(i) has been the subject of a sexual misconduct allegation, unless a subsequent investigation resulted in a finding that the allegation was false, unfounded, indeterminable, or unsubstantiated or a finding was otherwise overturned or expunged on appeal;

(ii) has ever been discharged from, been asked to resign from, resigned from, or otherwise been separated from any employment, has ever been disciplined by an employer, or has ever had an employment contract not renewed due to an adjudication or finding of sexual misconduct or while an allegation of sexual misconduct was pending or under investigation, unless the investigation resulted in a finding that the allegation was false, unfounded, indeterminable, or unsubstantiated or a finding was otherwise overturned or expunged on appeal; or

(iii) has ever had a license or certificate suspended, surrendered, or revoked or had an application for licensure, approval, or endorsement denied due to an adjudication or finding of sexual misconduct or while an allegation of sexual misconduct was pending or under investigation, unless the investigation resulted in a finding that the allegation was false, unfounded, indeterminable, or unsubstantiated or a finding was otherwise overturned or expunged on appeal.

(4) The school or contractor shall initiate a review of the employment history of the applicant by contacting those employers listed by the applicant under subparagraph (A) of paragraph (3) of this subsection (c) and, using the template developed by the State Board of Education, request all of the following information:

(A) the dates of employment of the applicant;

(B) a statement as to whether the applicant:

(i) has been the subject of a sexual misconduct allegation, unless a subsequent investigation resulted in a finding that the allegation was false, unfounded, indeterminable, or unsubstantiated or a finding was otherwise overturned or expunged on appeal;

(ii) was discharged from, was asked to resign from, resigned from, or was otherwise separated from any employment, was disciplined by the employer, or had an employment contract not renewed due to an adjudication or finding of sexual misconduct or while an allegation of sexual misconduct was pending or under investigation, unless the investigation resulted in a finding that the allegation was false, unfounded, indeterminable, or unsubstantiated or a finding was otherwise overturned or expunged on appeal; or

(iii) has ever had a license or certificate suspended, surrendered, or revoked due to an adjudication or finding of sexual misconduct or while an allegation of sexual misconduct was pending or under investigation, unless the investigation resulted in a finding that the allegation was false, unfounded, indeterminable, or unsubstantiated or a finding was otherwise overturned or expunged on appeal.

(C) The template shall include the following option: if the employer does not have records or evidence regarding the questions in items (i) through (iii) of subparagraph (B) of paragraph (4) of subsection (c), the employer may state that there is no knowledge of information pertaining to the applicant that would disqualify the applicant from employment.

(5) For applicants licensed by the State Board of Education, the school district, charter school, or nonpublic school shall verify the applicant's reported previous employers with previous employers in the State Board of Education's educator licensure database to ensure accuracy.

(d) An applicant who provides false information or willfully fails to disclose information required in subsection (c) shall be subject to discipline, up to and including termination or denial of employment.

(e) No later than 20 days after receiving a request for information required under paragraph (4) of subsection (c), an employer who has or had an employment relationship with the applicant shall disclose the information requested. If the employer has an office of human resources or a central office, information shall be provided by that office. The employer who has or had an employment relationship with the applicant shall disclose the information on the template developed by the State Board of Education. For any affirmative response to items (i) through (iii) of subparagraph (B) of paragraph (4) or subsection (c), the employer who has or had an employment relationship with the applicant shall provide additional information about the matters disclosed and all related records.

A school shall complete the template at time of separation from employment, or at the request of the employee, and maintain it as part of the employee's personnel file. If the school completes an investigation after an employee's separation from employment, the school shall update the information accordingly.

Information received under this Section shall not be deemed a public record.

A school or contractor who receives information under this subsection (e) may use the information for the purpose of evaluating an applicant's fitness to be hired or for continued employment and may report the information, as appropriate, to the State Board of Education, a State licensing agency, a law enforcement agency, a child protective services agency, another school or contractor, or a prospective employer.

An employer, school, school administrator, or contractor who provides information or records about a current or former employee or applicant under this Section is immune from criminal and civil liability for the disclosure of the information or records, unless the information or records provided were knowingly false. This immunity shall be in addition to and not a limitation on any other immunity provided by law or any absolute or conditional privileges applicable to the disclosure by virtue of the circumstances or the applicant's consent to the disclosure and shall extent to any circumstances when the employer, school, school administrator, or contractor in good faith shares findings of sexual misconduct with another employer.

Unless the laws of another state prevent the release of the information or records requested or disclosure is restricted by the terms of a contract entered into prior to July 1, 2023 (the effective date of Public Act 102-702) this amendatory Act of the 102nd General Assembly, and notwithstanding any other provisions of law to the contrary, an employer, school, school administrator, contractor, or applicant shall report and disclose, in accordance with this Section, all relevant information, records, and documentation that may otherwise be confidential.

(f) A school or contractor may not hire an applicant who does not provide the information required under subsection (c) for a position involving direct contact with children or students.

(g) Beginning on July 1, 2023 (the effective date of Public Act 102-702) this amendatory Act of the 102nd General Assembly, a school or contractor may not enter into a collective bargaining agreement, an employment contract, an agreement for resignation or termination, a severance agreement, or any other contract or agreement or take any action that:

(1) has the effect of suppressing information concerning a pending investigation or a completed investigation in which an allegation was substantiated related to a report of suspected sexual misconduct by a current or former employee;

(2) affects the ability of the school or contractor to report suspected sexual misconduct to the appropriate authorities; or

(3) requires the school or contractor to expunge information about allegations or findings of suspected sexual misconduct from any documents maintained by the school or contractor, unless, after an investigation, an allegation is found to be false, unfounded, indeterminable, or unsubstantiated or a finding was otherwise overturned or expunged on appeal.

(h) Any provision of an employment contract or agreement for resignation or termination or a severance agreement that is executed, amended, or entered into on or after July 1, 2023 (the effective date of Public Act 102-702) this amendatory Act of the 102nd General Assembly and that is contrary to this Section is void and unenforceable.

(i) For substitute employees, all of the following apply:

(1) The employment history review required by this Section is required only prior to the initial hiring of a substitute employee or placement on a school's approved substitute list and shall remain valid as long as the substitute employee continues to be employed by the same school or remains on the school's approved substitute list.

(2) A substitute employee seeking to be added to another school's substitute list shall undergo an additional employment history review under this Section. Except as otherwise provided in paragraph (3) of this subsection (i) or in subsection (k), the appearance of a substitute employee on one school's substitute list does not relieve another school from compliance with this Section.

(3) An employment history review conducted upon initial hiring of a substitute employee by a contractor or any other entity that furnishes substitute staffing services to schools shall satisfy the requirements of this Section for all schools using the services of that contractor or other entity.

(4) A contractor or any other entity furnishing substitute staffing services to schools shall comply with paragraphs (3) and (4) of subsection (j).

(j) For employees of contractors, all of the following apply:

(1) The employment history review required by this Section shall be performed, either at the time of the initial hiring of an employee or prior to the assignment of an existing employee to perform work for a school in a position involving direct contact with children or students. The review shall remain valid as long as the employee remains employed by the same contractor, even if assigned to perform work for other schools.

(2) A contractor shall maintain records documenting employment history reviews for all employees as required by this Section and, upon request, shall provide a school for whom an employee is assigned to perform work access to the records pertaining to that employee.

(3) Prior to assigning an employee to perform work for a school in a position involving direct contact with children or students, the contractor shall inform the school of any instance known to the contractor in which the employee:

(A) has been the subject of a sexual misconduct allegation unless a subsequent investigation resulted in a finding that the allegation was false, unfounded, indeterminable, or unsubstantiated or a finding was otherwise overturned or expunged on appeal;

(B) has ever been discharged, been asked to resign from, resigned from, or otherwise been separated from any employment, been removed from a substitute list, been disciplined by an employer, or had an employment contract not renewed due to an adjudication or finding of sexual misconduct or while an allegation of sexual misconduct was pending or under investigation, unless the investigation resulted in a finding that the allegation was false, unfounded, indeterminable, or unsubstantiated or a finding was otherwise overturned or expunged on appeal; or

(C) has ever had a license or certificate suspended, surrendered, or revoked due to an adjudication or finding of sexual misconduct or while an allegation of sexual misconduct was pending or under investigation, unless the investigation resulted in a finding that the allegation was false, unfounded, indeterminable, or unsubstantiated or a finding was otherwise overturned or expunged on appeal.

(4) The contractor may not assign an employee to perform work for a school in a position involving direct contact with children or students if the school objects to the assignment after being informed of an instance listed in paragraph (3).

(k) An applicant who has undergone an employment history review under this Section and seeks to transfer to or provide services to another school in the same school district, diocese, or religious jurisdiction, or to another school established and supervised by the same organization is not required to obtain additional reports under this Section before transferring.

(l) Nothing in this Section shall be construed:

(1) to prevent a prospective employer from conducting further investigations of prospective employees or from requiring applicants to provide additional background information or authorizations beyond what is required under this Section, nor to prevent a current or former employer from disclosing more information than what is required under this Section;

(2) to relieve a school, school employee, contractor of the school, or agent of the school from any legal responsibility to report sexual misconduct in accordance with State and federal reporting requirements;

(3) to relieve a school, school employee, contractor of the school, or agent of the school from any legal responsibility to implement the provisions of Section 7926 of Chapter 20 of the United States Code; or

(4) to prohibit the right of the exclusive bargaining representative under a collective bargaining agreement to grieve and arbitrate the validity of an employee's termination or discipline for just cause.

(m) The State Board of Education shall develop the templates required under paragraphs (3) and (4) of subsection (c).

(Source: P.A. 102-702, eff. 7-1-23; revised 7-17-24.)