New Law Changes Residency Hearing Procedures and Adds Right to Appeal to the ROE

By August 3, 2016 News No Comments

Under a new law, effective January 1, 2017, the process and procedures for challenging the residency of a student will change. On July 29, 2016, the Governor signed HB 4606 (P.A. 99-0670) amending Section 10-20.12b of the School Code. The amendments impact the notice of non-residency sent by a school district, the process and procedures for residency hearings, and a school board’s obligations in issuing a written decision. Additionally, and most notably, regional superintendents of schools will have the authority to review a school board’s determination of non-residency following a hearing before the school board.

The January effective date allows school districts time to review and revise their residency policies and procedures to prepare for implementation. In addition, for school districts that subscribe to the Illinois Association of School Boards PRESS service, an updated residency policy, administrative procedures, and exhibits will be available in the fall update published in September/October.

Here is a summary of the changes in HB 4606:

Notification of Non-Residency

Under the current version of the residency statute, when a school district determines that a student attending school in the district on a tuition-free basis is not a resident, the district  must give written notice to the person who enrolled the student of the non-residency determination, the amount of tuition due for the non-resident student’s attendance in the district, and the enrolling party’s right to request a hearing before the school board, or its hearing officer, to review the non-residency determination. HB 4606 maintained those notice requirements while adding that the written notice must detail the specific reasons why the district believes the student is not a resident of the district.

Residency Hearing

The statutory timelines for requesting and holding the residency hearing under HB 4606 remain the same as the current law: (i) the person who enrolled the student must request a hearing within 10 calendar days of receiving the written notice of non-residency; (ii) within 10 calendar days of receiving the hearing request, the district must notify the person of the hearing date, time, and location; and (iii) the hearing must be held not less than 10 but not more than 20 calendar days after the hearing notice was sent.

In addition to the current requirements, HB 4606 requires the district and the person requesting the hearing to exchange information prior to the hearing. Specifically, the district and the person requesting the hearing must disclose to each other all written evidence and testimony to be submitted during the hearing as well as a list of witnesses that it may call to testify during the hearing. This information must be exchanged at least three calendar days before the hearing. If it is not, the party who did not disclose the required information is to be prohibited from using it at the hearing without consent of the other party. The hearing notice must notify the person requesting the hearing of this prohibition if the information is not shared at least three calendar days prior to the hearing.

School Board Decision

If the hearing is conducted by a hearing officer, the timelines remain the same for the submission of the hearing officer’s report: the hearing officer must send a written report of findings within five calendar days to the school board and the person who enrolled the student. The person who enrolled the student may, within five calendar days after receiving the hearing officer’s report, file written objections to the findings.

Whether the hearing is conducted by the school board or a hearing officer, the school board now has more time to make its decision. As a result of HB 4606, the school board will have 30 calendar days after the conclusion of the hearing (currently 15 days) to issue its decision whether the student is a resident of the district and, if not, the amount of tuition due. The school board must issue its written decision to the person who enrolled the student within five calendar days of its decision.

Appeal to Regional Superintendent of Schools

Previously, a school board’s decision was final and could only be reviewed by the circuit court as a request for administrative review. Under HB 4606, after a school board makes its decision on the student’s residency status, the person who enrolled the student has appeal rights to the regional superintendent of schools. Within five calendar days of receipt of the school board’s written decision, the person who enrolled the student has the right to petition the regional superintendent to review the school board’s decision. Notice of this appeal right must be included in the school board’s written decision. The notice also must state that the student may continue attending school in the district pending the regional superintendent’s review and that tuition will continue to be assessed during this period and will become due upon a final determination of the regional superintendent that the student is a non-resident.

The petition by the person who enrolled the student must include the basis for the request and must be sent to the regional superintendent and school district superintendent. Within five calendar days after receipt of the petition, the school board must send to the regional superintendent its written decision, any written evidence and testimony that was submitted by the parties during the hearing, a list of all witnesses that testified during the hearing, and any existing written minutes, transcript, or audio or video recording of the hearing. The school board also may provide the regional superintendent and the petitioner with a written response to the petition. The regional superintendent’s review of the school board’s decision is limited to the documentation submitted to the regional superintendent.

The regional superintendent must issue a written decision to the school board and the petitioner within 10 calendar days of receipt of the documentation from the school board. The written decision must include the regional superintendent’s decision and rationale as to whether or not there is clear and convincing evidence that the student is a resident of the school district and eligible to attend the district’s schools on a tuition-free basis.

Tuition and Enrollment During Hearing and Appeal

The law remains unchanged for tuition accruing and the student’s continued attendance in the school district while a residency hearing is pending. Under HB 4606, this has been extended to a subsequent appeal, if any, to the regional superintendent of schools. If, after being notified of the non-residency determination, the person who enrolled the student requests a hearing, the student may continue to attend school in the district while the hearing is pending and during any subsequent appeal to the regional superintendent. Non-resident tuition may continue to be assessed during this time. If the student ultimately is determined to be a non-resident of the district, the person who enrolled the student is responsible for all tuition charged and the school board shall refuse to permit the student to continue attending school in the district unless the required tuition is paid for the pupil.

Finally, the new changes clarify that throughout Section 10-20.12b “days” mean calendar days.

As a result of HB 4606, school districts should be prepared to review and revise student residency policies, procedures, and forms. School districts preparing to challenge the residency of a student enrolled in their district after January 1, 2017, should consult with their attorney regarding the new requirements of the law prior to sending notice of non-residency.

The full text of the law is available HERE.

If you have questions regarding residency and the new hearing requirements, please contact Stephanie Jones and Jennifer Mueller .

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