Individuals and families being served by DCFS may appeal service decisions made by DCFS or other agencies making service decisions on behalf of DCFS. These service decisions may include removal of a foster child from a foster home, change of visitation schedule between family members, requiring attendance at counseling, and other issues. Often Courts will not or may not hear complaints regarding change, termination, or denial of services, reserving such right to DCFS and requiring recipients of such services to proceed through DCFS’s internal appeal process. This article will summarize the process and the requirements of parties while proceeding through this service appeal process.
DCFS Administrative Rule 337, 89 Ill. Adm. Code 337, Service Appeal Process,(1995) outlines the procedure and requirements DCFS and recipients of services must follow for a review of a decision made by DCFS or one of its private provider agencies. DCFS Administrative Procedure 337, proc. 337, Service Appeal Process, PT 95.15 (June 1, 1995) further details the appeal process.
Persons who may appeal decisions made by or on behalf of DCFS are: families and children who receive child welfare services, either directly from DCFS or from its provider agency; families and children who request child welfare services from DCFS or its provider agency; and foster parents or relative care givers who have care and custody of a child for whom DCFS is legally responsible. Rule 337, 89 Ill. Adm. Code 337, sec. 337.60, Who May Appeal, a)1) 2) and 3). Others who can appeal on behalf of a recipient of services are an authorized representative or person having authority to appeal, or an individual who has been appointed by a Court to legally act on behalf of those individuals having authority to appeal a DCFS decision. Id. at 337.60 b) and c). The person who may appeal is called the "appellant". Id. at 337.20, Definitions.
If the appellant is a family or child receiving services by DCFS, the appellant may appeal: the denial, in whole or in part, of child welfare or day care services requested; a decision by DCFS or its provider agency to reduce, suspend or terminate services; a choice of a permanency goal or the denial of a request for a change in a permanency goal; the failure to complete a service plan within 30 calendar days of opening a case or to review the service plan within the required time frames; a failure to provide services as specified in the service plan within time frames required; the frequency or length of family visitation, or failure to arrange parent-child visits when the child is placed out of the home and parental rights have not been terminated, and the frequency or length of sibling visits when children are placed apart; a change in the placement of a child; and the "imposition of unnecessary services" or conditions as part of a service plan. Id. at Rule 337, sec. 337.70, a), What May Be Appealed.
If the appellant is a foster parent or relative care giver, he or she has the ability to appeal decisions made by DCFS or its provider agency that directly affect the foster parent, such as: payment issues or placement or removal of a child; decisions made by DCFS or its provider agency regarding services provided for the benefit of foster children in their care, such as day care, medical, educational, and psychological services; failure to provide services as specified in the service plan for the benefit of the foster child in their care, which do not include services provided to the biological family; and a change in a child’s substitute care placement, which may not include placement with biological or adoptive parent, sibling, or placements for the purpose of adoption as ordered by the court, or return to an individual with whom the child was residing prior to entering substitute care. Id. at 337.70 b).
Certain issues are never appealable. These are: when the sole issue is one of state or federal law regulating the automatic adjustment of services for classes of children and families; when the issue pertains only to the Medical Assistance Program under Title XIX of the Social Security Act; when the Department has already made a final administrative decision on the issue as a result of a previous appeal; when the issue is not a service issue as defined under law or rule; or when a court has made a judicial determination or issued an order on the issue being appealed. Id. at 337.80 a) - e).
The Department or its provider agency is required to give the appellant "timely and adequate written notice" of a decision or an action it is intending to take that is appealable by the appellant. Id. at 337.90 a). See also, 337.90 b)and c). This notice must be either hand delivered with a certificate of delivery signed by the appellant or sent to appellant via certified or registered mail. Id. at 337.90 d). The appellant must request an appeal of this action or decision in writing within 45 calendar days from the date of notice by DCFS or its agency, sent to the DCFS office designated in the rule or notice. Id. at 337.100 a) and c). If the appellant wishes for services to remain unchanged during the appeal process, he or she must request an appeal in writing within 10 days from the date of the notice of the decision. Id. at 337.10 b). Services will remain unchanged unless the decision is one that would result in "imminent risk of harm" to the child or another if services remained unchanged. Id. at 337.130.
The Appeal Process under Rule 337, section 337.30, offers three separate processes for review by or discussion with DCFS on the issues being appealed. A person filing an appeal may access mediation, an emergency review, or a fair hearing as part of the internal appeal process. Id. at 337.30 a), b), and c).
Mediation is a process offered early in the appeal process, withing 30 calendar days after a person files an appeal with DCFS. An appellant may accept or reject the offer to mediate their issues. Id. at sec. 337.30 a)1). See also, sec.337.120, Time Frames for the Service Appeal Process. If the appellant chooses to mediate and the process is successful for resolving all issues, the agreed resolution becomes the Final Administrative Decision of DCFS. The resolution is then implemented by DCFS and/or the appellant and the appeal is dismissed. Id. If mediation resolves some but not all of the issues, those issues resolved are implemented by DCFS and the remaining issues are scheduled for a fair hearing. Id. If no issues are resolved in mediation, if the appellant rejects the agreement within 15 days after the mediation session, or if the appellant chooses not to mediate, the appealable issues are scheduled for a fair hearing. Id.
Emergency Review is available to appellants under certain circumstances. This review is available to the appellant, if requested in writing, to get an interim decision by DCFS within ten calendar days from the date of the request for the emergency review. Id. at 337.30 b). See also, sec. 337.120, Time Frames for the Service appeal Process. Only issues pertaining to lack of timely notice due to a finding of imminent risk by DCFS or changes in family visitation and placement during the service appeal process may be heard at an emergency review. Id. at 335.30 b)1) and 2). The review is an expedited hearing, usually lasting a few hours, in front of an emergency reviewer. This reviewer often is a DCFS Administrative Law Judge employed to hear all types of administrative appeals within DCFS.
The hearing must be scheduled and the decision implemented within ten calendar days from the date of the request for the review. The decision by the emergency reviewer must be implemented by DCFS within five calendar days after the issuance of the decision. Id. The reviewer is authorized also to issue "corrective action" for implementation of his or her decision. Id. The decision is binding on the parties only until a Final Administrative Decision is issued by DCFS at the end of the full appeal process. Id. at sec. 337.20, Definitions.
A Fair Hearing is the administrative process required by federal regulations. Id. at 337.30 c). It is a trial-type of proceeding where the Department and the appellant may present all relevant information and evidence supporting their positions, call and question witnesses, introduce documentary evidence, and question opposing witnesses or disprove information. Id. at sec. 337.170 i), Fair Hearing Appeal Rights. The burden of proof is on the Department to show by a preponderance of the evidence that the decision or action being appealed is one that is in the best interests of the child or children being served by DCFS or its provider agency," in accordance with professional social work standards and DCFS administrative rules." Id. at 337.30 c). See also, sec. 337.170 a). The strict rules of evidence do not apply. Id. at 337.180 b)2).
The parties to the fair hearing may request and have issued by DCFS administrative subpoenas requiring the attendance of witnesses. Id. at 337.170 c). All those individuals who the appellant brings to or requests attendance at the hearing shall be at appellant’s expense. Id. at d). The Department must provide an interpreter free of charge to the appellant, if appellant requests or the need is demonstrated. Id. at e). The parties have the right to obtain examining physicians’ reports, a medical review team’s decision, or medical assessments at the expense of DCFS if the Administrative Law Judge deems this information to be relevant to the issues being appealed. Id. at h).
Pre-hearing motions must be filed with the Administrative Law Judge at least 10 calendar days prior to the hearing, with copies to all other parties and the Administrative Hearings Unit of DCFS. Id. at 337.170 f). At least five calendar days before the hearing each party must disclose to all other parties the documents, witnesses, and other evidence that party intends to introduce into evidence at the hearing. Id. at g). If any party fails to do this, the Administrative Law Judge has the authority to rule on the admissibility of any such evidence. Id.
A request for a continuance by appellant will be granted when the appellant or his or her representative or witnesses are not available for hearing, and appellant demonstrates adequate cause for the lack of availability. Id. at 337.170 b) 1). Other reasons for granting continuances to appellant include if the parties are in the process of negotiating an agreement to resolve the issues in dispute or additional time is needed to respond to expert evidence produced. Id. at b) 2)and 3). If a continuance is granted based on appellant’s request, this time period from the date of the request to the continued date for hearing is not considered part of the 90 day time frame the Department has to make and implement its Final Administrative Decision. Id. at b) 3).
Along with those listed above, DCFS bears the responsibility of providing for the appellant the documents considered or created in making the decision or to take the action that is being appealed. Id. at 337.40, Department and Provider Agency Responsibilities on Appealable Issues. These documents include any pertinent parts of records DCFS or its private agencies may have on file. The Department and its provider agencies must always preserve confidentiality required under law, rules, and regulations when disclosing or providing any information or records. Id. at 337.140. The Department bears the responsibility to keep record of the appeal. Id. at 337.190. Most often the hearings are recorded via audiotape recording, Id. At 337.180 b) 3), though a court reporter may be provided by DCFS for some cases. If a court reporter is arranged by the appellant, or if the appellant wishes transcription of the hearing audiotapes, the appellant bears the cost for such services, unless the transcription is for the purpose of judicial review, in which case the service is paid for by DCFS.
DCFS shall dismiss an appeal if: an appellant does not request an appeal within the time frames required; the appeal has been withdrawn in writing by the appellant; the issue is not considered appealable under DCFS rule; a Court has made a determination or issued an Order on the issue being appealed; or the appellant is considered to have abandoned the appeal. Id. at 337.110 a).
An appellant shall be considered to have abandoned a service appeal if the appellant, his or her authorized representative, or someone acting legally on the appellant’s behalf fails to appear at the hearing without adequate cause or was not granted a continuance of the hearing. Id. at 337.160 a), Abandonment of a Service Appeal. Adequate cause for failing to appear includes but is not limited to death in the family, serious illness, or failure to get notice of the hearing. Id. at 337.160 a) 1), 2), and 3). If an appellant fails to appear for mediation or an emergency review, this does not warrant a dismissal or constitute an abandonment of the appeal.
AVAILABILITY AND NOTICE OF JUDICIAL REVIEW
The appellant has the ability to access Judicial Review of the Department’s Final Administrative Decision issued from a fair hearing. The appellant must be advised of this right by DCFS, and of the time frame in which the appellant may seek the Judicial Review. Id. at 337.240.
A service appeal may make a great difference in a client’s response to DCFS and willingness to participate with DCFS’s service plan. It is a process that allows a client to have a voice in DCFS’s plan for them, their family, and their children or foster children. The service appeal process is not something that should be taken lightly or disregarded; it may be the only chance a client may have to change or do away with unwanted or unnecessary services.
Judy L. Hogan has been practicing law for 16 years, with an emphasis in the areas of family law, mediation, and child welfare. She has over 22 years of experience in child welfare, having served in a number of capacities, including as an Administrative Hearing Officer for DCFS.