SSA. Sect 471. [42 U.S.C. 671] 471(a) (12) provides for granting an opportunity for a fair hearing before the State agency to any individual whose claim for benefits available pursuant to this part is denied or is not acted upon with reasonable promptness;
Federal Regulations Programs funded under Title IV-E of the Social Security Act are subject to regulations at 45 C.F.R § 205.10 governing hearings. (See 45 C.F.R § 1355.30(p)(2).) 45 C.F.R §205.10 requires that the State agency responsible for the Title IV-E program – in this case DCFS – must have a State agency hearing system with the following components:
Federal Regulation Overview 45 CFR 205.10 Opportunity for hearing (consistent with Goldberg standards) for any recipient aggrieved by agency action which results in suspension, reduction, termination, discontinuance of assistance. 45 C.F.R §205.10(a)(5). Written notice of a right to a hearing agency’s intended action at least 10 days before the action, and explanation of the client’s right to request an evidentiary hearing. 45 C.F.R §205.10 (a)(4). Continuation of assistance if appeal is requested in a timely manner. 45 C.F.R §205.10(a)(6). Conducted by impartial person not involved in the decision to reduce or eliminate services, at which client has the right to examine the case file & the documents used by the agency at the hearing, the right to be represented and to bring witnesses, the right to cross examine witnesses. 45 C.F.R §§205.10(a)(9), (13). A decision within 90 days which based on the evidence at hearing, record of the hearing including transcript 45 C.F.R §205.10(a)(14)(15).
DCFS Act 20 ILCS 505/5(o) (Assumes inclusion of Placement Appeals) DCFS shall establish administrative review and appeal process for children & families who request/ receive child welfare services from Department. Equal rights whether placed by private agency or DCFS. DCFS shall insure any private child welfare agency, which accepts wards of the Department for placement, affords those rights to children and foster families. DCFS shall accept for administrative review and an appeal hearing a complaint made by (i) a child or foster family concerning a decision following an initial review by a private child welfare agency or (ii) a prospective adoptive parent who alleges a violation of subsection (j-5) of this Section. An appeal of a decision concerning a change in the placement of a child shall be conducted in an expedited manner. Comment: placement decisions included under (i) – does not (for some reason) include parents stat. language tho rule does.
Juvenile Court Act (705 ILCS 405/1-5 ) DCFS Act 5/5(o) This Section (which concerns rights of parties including Intervention and right to be heard) is not intended to encompass any matters that are within the scope or determinable under the administrative and appeal process established by rules of the Department of Children and Family Services under Section 5(o) of the Children and Family Services Act. 705 ILCS 405/1-5 (2)(b). “Section” appears to refer to all of 705 ILCS 405/1-5 since it differentiates between sections and paragraphs. It refers to this section & paragraph (2) of other “sections” of the Juvenile Court Act (e.g. 2-22, 3-23, 4-20, 5-610) as sections. 3-23, 4-20, 5-610
Administrative Review Act & DCFS Appeals 20 ILCS 505/9.9 “Responsible parent or guardian” affected by a final administrative decision of the DCFS in hearing conducted pursuant to Act, may have decision reviewed only under Administrative Review Law. ARA shall apply and govern all proceedings for the judicial review of such final administrative decisions. The term "administrative decision", is defined as in Section 3-101 of the Code of Civil Procedure. ARA Review not applicable to a decision to conduct a family assessment under ANCRA 7.4 (a-5) b/c no determination concerning child abuse or neglect is made and nothing is reported to the central register. (expungement issue) Appeals from all final orders and judgments entered by a court upon review of Department's orders may be taken by either party to the proceeding and shall be governed by the rules applicable to appeals in civil cases. The remedy herein provided for appeal shall be exclusive, and no court shall have jurisdiction to review the subject matter of any order made by the Department except as herein provided. (emphasis added)
History Version One – Mid 90’s Like Special Ed Due Process: Emergency Review (in placement) Mediation Hearing Version Two 2000/2001 Placement goes to CPR not emergency review Best Interest changed to safety, permanency and well being CPR process in a Procedure & Policy Guide remain. Version Three 2011- defines CAYIT – incorporates CPR into rule instead of Procedure – tho Procedure remains.
Who can Appeal Depending on case, appeal can be generated by family of origin, foster parents, relative caretakers, child. 89 Ill Admin Code 337.60
Issues for Service Appeal Service Decision: Child Welfare Services 20 ILCS 505/5(a)(3); Rule 337.20 Rule 337.70 Denial, reduction, termination of services. Permanency goal decision. Service plan issues(completion in 45 days, failure to review in timelines, failure to provide services in plan); frequency length of visits (family and sibling). (Parents/not foster relative) Change in placement (parents); removal of child (foster and relative) Imposition of unnecessary services. (parent only) Issues re: Services, foster children & that directly affect foster families such as payment. CAYIT –disagreement with a service decision in the CAYIT Action Plan ; but not CAYIT placement decisions (into Spec FH, Independent Living, Transitional Living, Residential) 337.30(d) Not return home (stays in juvenile court). 337.70, 80.
Issues for Service Appeal Placement Decision: Removal from foster parent – appeal from Clinical Placement Review but: No CPR of child in home < 60 days (90 Unlicensed Relative) R. 337.30(c) No CPR if move is to consolidate siblings in one home. R. 337.30(c) No CPR of spec care, ILR, group home placment 337.30(c)(4)(C-E) -
Notice of Decisions that Lead to Service Appeals Rule 337 & Procedure 301 & CFS 151 ) For Non-Placement Appeals – Notice is the denial of services or the completed service plan. R.337.70. Reduction/Elimination of services 10 days. For placement removals: foster parents supposed to get written notice 14 days prior to removal. Proc. 301.60(b)(3)(A). 89 Ill Admin Code 340 (App B)(11). If imminent risk remove first then give notice R337.30(c)(5); 337.90(a)(2). or if “safety cannot be assured.” Pro. 301.60(b)(3)(B). Notice in appellant’s primary language.
Service Appeal Issues Filing of Service Appeal Non placement appeals (w/in 45 days of notice - w/in 10 days if services to be continued) To: Administrative Hearings Unit DCFS -Springfield Placement appeals Request Clinical Placement Review w/3 days of notice of intent to remove child. 337.30(c)(1). Request Service Appeal Within 10 days of Clinical Placement Review Decision. R. 337.90(c)(6)
Effect of filing Filing triggers agency responsibility to administratively review and provide in writing with statement, specific law or policy utilized, & summary of facts supporting decision. Rule 337.40 Stay of certain decisions if filed within 10 days. 337.130 (not CPR decisions)
Service Appeal Hearings: Non Placement Appeals - Emergency Review R337.30 (b) ▪ Rare issue in non-placement appeals. ▪ Only issues: ▸ (1) whether imminent risk of harm existed to justify action w/o timely notice. ▸ (2) Continuing services during pendency of service appeal. ▪ Request w/in 10 calendar days of date of notice ▪ Review scheduled w/in 10 days of request ▪ Implement order w/in 5 days of decision.
Service Appeal For Non- Placement Services Mediation R 337.30. Mediation: Offered w/in 30 days of appeal. Appellant can reject offer to participate.(If rejected go to fair hearing). If successful, agreement drawn up. If successful but later violated, reinstate request for hearing. If not resolved at mediation request, go to fair hearing. Example payment issues (retro spec foster care).
Service Appeal THE DECISION ▪ After hearing ALJ makes recommendation to DCFS Director, whom makes final decision. ▪ Appeal under Administrative Review Act: In Chicago file in Chancery:
Clinical Placement Review- Placement Removals Rule 337.30 (c) -Procedure 301.65 This is often where the critical decision will be made. It is the presumptive decision re: the child. During any appeal from the CPR the child stays where the CPR says. Be aware looking forward - Service appeals of CPR-burden is on appellant to show that CPR not consistent with child’s well being, safety & permanence.
Clinical Placement Review Timing Issues To request CPR--must phone or fax request for CPR within 3 working days of decision to remove. R. 337.30(c). Location in Procedure 301.65 (not rule) Phone 312.633.3754 - Fax 312.633.4091 Policy Guide 2003.01 (re Cook only): When a CFS 151B is issued a CPR is required. But not: HMR>HMR, Traditional to HMR in 1 st 90 days, movement to spec when gatekeeper approves, residential move, ILR move CPR must be convened within 5 days of request no later than date of planned removal.
The Clinical Placement Review DCFS clinical staff convene a CPR within 5 working days of the request Staff requests materials and Invites participation Child >12 Caseworker and Supervisor Foster/Relative Caregiver GAL Other Family
Clinical Placement Review Pr. 301.60/65 What Happens If everybody agrees on a placement decision that ensures safety, best interest and well being of child...it gets entered on form and signed by all. If everybody does not agree: provide decision within 5 days of CPR - Form CFC 151 C Parties have 2 days to return a copy of the CFC-151 outlining disagreement 10 days from issuance of CPR decision to request fair hearing. Proc. 301.65
Clinical Placement Review Practice Points Know your facts before hand. Discuss with client when you will speak and when s/he will speak. Remember that you have a right to appeal the decision, but that the burden will be on you.
Appeals of Placement Decisions Appeal is from CPR Decision Rule 337 Who can appeal? (89 Ill Admin Code 337.60) Foster parent/relative caretaker or authorized representative. Child or authorized representative Parent or authorized representative NOT THE AGENCY When? Within 10 days of clinical placement review decision. (89 Ill Admin Code 337.120)
Appeals of Placement Decisions Burden of proof on the appellant By a preponderance of the evidence That the decision made by the clinical placement reviewer was not consistent with the child's needs regarding safety, well being, and permanency.
Appeals of Placement Decisions: Advocacy Importance of getting agency position and all records. Subpoena necessary witnesses Theory of Case/Story of Case Independent Evaluation? 337.170(h)- if ALJ determines necessary Importance of making it a real hearing - evidentiary rules. 5 ILCS 100/10-40 (even tho R.337 says “strict rules” of evidence do not apply. R. 337.180(2) but also says that appellant has full opportunity to present his/her position in accordance with any rules of evidence that may apply. R. 337.180(14).
Service Appeal Caselaw: Placement Removals Are Different When There’s A Service Appeal Pending/Completed R.M. 288 Ill. App. 3d 811 (1 st Dist.1997) – while service appeal pending (in which GAL participated in the emergency review stage) – Juvenile Court had no authority to hold an emergency hearing to remove. Focus is on an attempt to circumvent the administrative appeal process. A.L. 195 Ill. 2d 408 (2001) No Service Appeal Involved. Holds under facts of case (with no service appeal pending) that Juv court has authority to remove while child in Temp Custody. M.P., 928 N.E.2d 1287 (3d Dist 2010); No service appeal involved. Trial court lacks the statutory authority to order specific placement of a minor with a specific foster family, but has authority to remove b/c not consistent with permanency goal. Court did not order a specific placement but ordered that M.P. be removed from respondents’ home and “placed elsewhere.” See A.L., 689 N.E.2d 1167 (1998) (distinguishing an order for removal for unspecified alternate placement from an order for specific placement).A.L., 689 N.E.2d 1167
Service Appeal Caselaw MV (I) 681 N.E.2d 532 (1 st Dist 1997) –court cannot hold placement (between two competing placement options Illinois (child’s initial placement) and Texas); trial court had ordered DCFS to make reasonable efforts to place in TX & to place child there. Appellate court not authorized to order child to TX - JCt specific placement of the minor only after intervention by the foster parent & when a valid application for restoration of custody by a parent is before the court. MV (II) 707 N.E.2d 649(1 st Dist 1999) TEXAS Placement(where child had been while I on appeal) and ILLINOIS placementagreed to allow Juv Court to decide issue placement at PPH. And TX w/drew service appeal. Appellate Court: Juv Court can enter permanency decision that current placement of child is necessary and appropriate in this case. Juv Court does not have authority to order a specific placment. Gets around the 5(o) exclusive remedy b/c all parties agreed to have Juv court decide issue so no service appeal was pending.