Service Appeal Presentation

Service Appeals
Statutory & Regulatory Sources
 Federal Requirements: Social Security Act 42
USC 671(a)(12) & Regulations 34 CFR
 DCFS Act 20 ILCS 505/5(o)
 89 Ill Admin Code 337
 Procedure
 Policy Guide
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
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
“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)
 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
• 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
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
 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
▪ After hearing ALJ makes recommendation to
DCFS Director, whom makes final decision.
▪ Appeal under Administrative Review Act: In
Chicago file in Chancery:
Clinical Placement ReviewPlacement 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 &
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 1st 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
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 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
• 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:
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 (1st 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).
Service Appeal Caselaw
 MV (I) 681 N.E.2d 532 (1st 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
 MV (II) 707 N.E.2d 649(1st 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.

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