Full opinion text
MEMORANDUM OPINION AND ORDER PALLMEYER, District Judge. Plaintiffs represent a class of persons who have been named as perpetrators of child abuse or neglect in “indicated reports” placed in the State Central Register of the Illinois Department of Children and Family Services (“DCFS”). Defendant Jess McDonald is the Director of DCFS. Seeking injunctive relief, Plaintiffs challenge the constitutionality of certain DCFS policies and procedures for investigating allegations of child abuse and neglect and for issuing “indicated” reports. Specifically, Plaintiffs challenge three “core” policies: the indicated report decision-making policies, including the burden of proof standard; the notice and hearing policies; and the disclosure and use of indicated reports. Plaintiffs also challenge five “special” policies which arguably only affect subgroups of the Plaintiff class: the imposition of protective or safety plans; foster care placement holds; “not responsible” findings; the extended registry of indicated reports; and indicated findings made without a determination that an individual acted intentionally, recklessly or negligently. For the reasons set forth below, the court finds that certain of these current DCFS policies and procedures do in fact deprive class members of constitutionally-protected rights. The court will not, however, dictate a remedy or draft revisions to the regulatory structure. Instead, it directs the parties themselves to develop a workable solution, and present it to the court, within 60 days. Plaintiffs’ motion for preliminary injunction is therefore granted in part and denied in part. FINDINGS OF FACT I. Overview Of The Department Of Children And Family Services 1. The Department of Children and Family Services (“DCFS” or the “Department”) is statutorily required to protect the health, safety and best interests of the child in all situations, including both public and private, in which the child is vulnerable to child abuse or neglect. (325 ILCS 5/2.) DCFS is also responsible for offering protective services in order to prevent further harm to the child and to other children in the same environment or family. (Id.) As such, DCFS is the state agency charged by statute with the duty of investigating allegations of child abuse and neglect. (Id.) 2. Under the Juvenile Court Act, 705 ILCS 405/1 et seq., DCFS may be granted temporary custody of children requiring protective services. Under the same Act, DCFS becomes permanently responsible for children who are adjudicated by a juvenile court to be abused and neglected and become wards of the court. (705 ILCS 405/2-10.) 8. DCFS’ Licensing Unit is responsible for issuing child care licenses pursuant to the Illinois Child Care Act, 225 ILCS 10/4, for monitoring licensees, and for enforcing the licensing standards pursuant to the Child Care Act and pursuant to DCFS rules and procedures. 4. DCFS is organized into various operational divisions. The Division of Child Protection (“DCP”) is responsible for operating a hotline to accept calls regarding allegations of child abuse and neglect (the “DCFS Hotline”). In addition to accepting reports of abuse or neglect, DCP is also responsible for investigating the allegations. (325 ILCS 5/7, 5/7.3.) Edward Cotton is currently the DCP’s chief administrator. The DCFS Hotline accepts over 350,000 calls per year, of which 65,000 are investigated. (Tr. 1475, 1492.) Approximately 23,000 (or 1/3) of the investigations are “indicated,” meaning that the investigator has determined that credible evidence of child abuse or neglect exists. (Tr. 1492-93.) The rest of the investigations result in “unfounded” determinations, meaning that the investigator has not found credible evidence of abuse or neglect. (Tr. 1493.) 5. The State Central Register (“SCR”) is a subdivision of the DCP that maintains a computerized listing of information regarding allegations of abuse or neglect, including the determination that an allegation of abuse or neglect has been indicated against a particular named perpetrator. Linda Everette-Williams is the head of the SCR; she reports to Edward Cotton. The Child Abuse and Neglect Tracking System (“CANTS”) is a computerized tracking system maintained by the SCR. 6. The DCFS Operations Unit provides follow-up services to children and families and includes both foster care licensing workers and primary case managers for children who are in the guardianship of DCFS and placed in foster homes, group homes and child care institutions. 7. The Administrative Hearings Unit (“AHU”) receives, processes, and hears appeals from DCFS actions, including any appeal seeking expungement of an indicated report from the SCR. The AHU also hears licensing denial and revocation appeals, and service appeals which involve, for example, decisions to remove a child from a particular placement. 8. DCFS has promulgated rules and written procedures which specify the manner in which the Department implements its statutory mandates. DCFS has also established standardized form notices concerning, among other things, the conduct of abuse and neglect investigations and determinations, licensing investigations and determinations, and background checks. II. The Abuse and Neglect Investigative Process A. In General 1. Assessments of child abuse or neglect can result in criminal prosecutions, civil actions, juvenile court proceedings, adoption actions, domestic relations suits, and administrative determinations. 2. In 1975, Illinois enacted the Abused and Neglected Child Reporting Act (“AN-CRA”), 325 ILCS 5/1 et seq. Sometime between 1989 and 1992, DCFS adopted the current centralized state-wide system for investigating, registering and tracking allegations and findings of abuse and neglect. B. Training of Investigators 1. To become a DCP investigator, an individual must have a bachelor’s degree in a social services field and two years of social service or investigative experience. It is unclear from the record what degrees qualify as social service degrees. DCP investigators are not required to have any experience or background in child development. 2. Prior to assuming responsibility for conducting investigations, DCP investigators are required to attend two weeks of specialized training in addition to the five weeks of core training for all DCFS case managers. The five week core training covers, among other subjects, case planning, interviewing, clinical decision making, child development, family dynamics, juvenile court processes, and Child Endangerment Risk Assessment Protocol (“CERAP”) forms, rules, and procedures. The specialized two-week training, solely for investigators, includes eight modules: (A) principles of investigation; (B) indicators of child abuse and neglect; (C) interviewing children and families; (D) investigation preparation; (E) investigation, including decision-making and documentation; (F) risk assessment; (G) initial services; and (H) placement services. The total time devoted to the specialized training is 49.45 hours. This specialized training does not include instruction on how to weigh evidence; Edward Cotton testified that the principal goal of the training is to teach investigators what evidence should be gathered. After the specialized training, investigators must pass a certification exam. 3. The DCP requires investigators to have twenty additional hours of training every two years, but investigators are not disciplined if they do not meet this requirement. 4. Once they complete this additional two weeks of specialized training, investigators continue their training by accompanying more experienced workers on investigations. Six months later, DCFS assigns the investigators their own cases. Each investigator is expected to be individually responsible for conducting twelve investigations per month. These investigators gather evidence, conduct investigations, and then weigh the evidence in order to decide whether to “indicate” or “unfound” a report. 5. In addition to their seven total weeks of training, investigators are provided with a comprehensive CPS Handbook, hundreds of pages in length, which details the investigative process. The CPS Handbook explains what the investigator is required to do during the investigation, what evidence he or she is expected to consider, and what facts are to be considered in determining the outcome of the investigation. C. The Initiation of an Investigation and CANTS 1 1. Any person can make a child abuse or neglect report by calling the toll-free DCFS Hotline. Certain persons whose employment brings them into frequent contact with children are “mandated reporters” and are thus required to make a Hotline report if they have a reasonable belief that a child may be abused or neglected. (III. Admin. Code tit. 89, § 300.30.) 2. Upon accepting a call, a DCFS Hotline operator must determine whether the following criteria are met: (1) the alleged victim is under the age of 18; (2) the person allegedly responsible is an “eligible perpetrator,” such as an immediate family member, a person responsible for providing care, or a person residing in the home where care is being provided; (3) there are specific incidents of alleged abuse or neglect which cause harm or substantial risk of harm to the child; and (4) the alleged victim has been harmed or is in substantial risk of harm. These are the minimum criteria for further investigation. 3. DCFS maintains an allegation system which assigns a discrete number code to specific allegations of abuse or neglect. All abuse allegations are coded with a one or two digit number under thirty and all neglect allegations are coded with a two digit number greater than fifty. Each allegation of abuse or neglect focuses on harm or the risk of harm to the child. 4. If the Hotline call is deemed to be made in good faith and to meet the minimum critexia for further investigation, the Hotline operator completes a CANTS 1 form and assigns the case an SCR number and letter. On the CANTS 1 form, the operator records the names of the alleged victim, the alleged perpetrator and other adults in the alleged victim’s home or facility (and the relationship between all such persons), and the name of the person making the report. The alleged victim, the alleged perpetrator and the other adults in the home/facility are considered “subjects” of the investigation. On the second page of the CANTS 1 form, the operator writes a narrative summary of the allegations of abuse and neglect made by the caller. 5. The investigator then checks for pri- or reports against the “subjects” in the Child Abuse and Neglect Tracking System. If a “subject” has been investigated for a prior incident resulting in an indicated report, the report will be noted on the CANTS 1 form with an “I” next to an allegation number. This is true even for prior indicated reports where the perpetrator was determined to be “unknown” and all suspected perpetrators were notified that they were “not responsible” for abuse and neglect. Where an individual was determined to have been the perpetrator of abuse or neglect in a prior investigation, the prior report is identified on the CANTS 1 form with an “X.” 6.The SCR transmits the completed CANTS 1 form to a local DCP office where an investigator is assigned. The assigned investigator is responsible for conducting the investigation and for making a final determination as to whether to “indicate” or “unfound” the report. D. Investigative Contacts 1. Investigators must attempt to see the alleged victim within 24 hours of the Hotline call. (III. Admin. Code tit. 89, § 300.100.) The investigator who makes this initial contact with the alleged victim is not necessarily the investigator assigned to complete the investigation. 2. After this initial interview with the alleged victim, the investigator is required to complete the CERAP which is designed to identify and quantify the risk to the alleged victim. 3. The investigator then continues an initial investigation to determine if there is reasonable cause to believe that child abuse or neglect exists. This initial investigation is to be completed within 14 days after assignment. A preliminary determination that there is reasonable cause triggers a formal investigation of the allegations. Without reasonable cause, a case may be “informally unfounded.” About 15% of cases are informally unfounded. 4. DCFS rules provide that, in a formal investigation, an investigator must have in-person contact with the alleged victim, the alleged perpetrator, and the child’s caretaker. (III. Admin. Code tit. 89, § 300.310(c).) Under DCFS Procedures, required contacts are expanded according to a system of priority of the allegations. 5. The investigator is required to contact the alleged perpetrator within seven days after assignment. (Id.) Cotton testified that during this initial contact, the alleged perpetrator is given a CANTS 8 form and a pamphlet that describes what to expect during the course of the investigation. (Tr. 1516-17.) 6. The CANTS 8 form (also known as, “Notification of a Report of Suspected Child Abuse and/or Neglect”) is the only notice required to be given, during the investigation, to any person who is a “subject” of the investigation. All adult “subjects” are to receive a CANTS 8, and an alleged perpetrator must be handed the CANTS 8 in person. Therefore, identical CANTS 8 forms are given to any person who has custody of the child as well as to any person who is or may become a suspected perpetrator. When a report of abuse or neglect arises out of an incident at a child care facility, however, the CANTS 8 may be given to the facility director rather than to any identified employee. (a) The CANTS 8 form merely advises the person who receives the form that an incident involving the children) named was reported to have occurred at an identified sité. It also advises the recipient that DCFS is required to conduct an investigation, which must be “indicated” or “unfounded” within 60 days of the report unless good cause is shown. (Jt. Ex. 21, at 22.) (b) The CANTS 8 does not specify the allegations, name the suspected perpetrator of the abuse or neglect, or explain the investigative process. The CANTS 8 also fails to inform the recipient of any rights afforded to persons being investigated as perpetrators. It does state, however, that if the report is found “indicated,” it will remain in the SCR for a minimum of five years. (Id.) 7.DCFS directives do not require that every allegedly abused or neglected child be seen by a doctor or qualified medical examiner before the report may be indicated. E. Final Determinations — Concluding the Investigation 1. “When the investigative worker has completed all required investigative contacts and has secured appropriate physical evidence ... the investigative worker shall make a finding of Indicated or Unfounded. This determination shall be based upon whether the information gathered during the investigation and from the direct observations made by the investigative worker constitutes credible evidence of child abuse or neglect.” (III. Admin. Code tit. 89, § 300.110©). In order to indicate a report against a perpetrator under the allegation system, DCP must “secur[e] credible evidence that the child sustained the harm or injury as the result of the action or inaction, of the alleged perpetrator.’Tn determining whether the suspected perpetrator undertook “direct action” to harm a child, it is unclear whether DCP must determine that the suspected perpetrator acted intentionally, recklessly, or negligently. Therefore, except for allegation # 74 (inadequate supervision), DCP is authorized to indicate perpetrators even without evidence that the perpetrator acted intentionally, recklessly, or negligently. 2. At all relevant times, DCFS has employed the “credible evidence” standard as the burden of proof for determining that reports be indicated and placed in the SCR. Plaintiffs argue that this, in practice, amounts to an “any credible evidence” or “some credible evidence” standard. Prior to March 1, 1996, administrative law judges (“ALJs”) were to apply this “credible evidence” standard in administrative hearing recommendations. The Director of DCFS would then apply the same standard when reviewing the ALJ’s recommended decision. 3. Effective March 1, 1996, DCFS promulgated regulations which directed ALJs to apply a “preponderance of the evidence” standard in administrative hearing recommendations. The new regulations direct the Director of DCFS to apply this same “preponderance of the evidence” standard when reviewing the ALJ’s recommended decision. (III. Admin. Code tit. 89, §§ 336.120(h), 336.150(a).) 4. DCFS regulations define an “indicated report” as “any report of child abuse or neglect made to the Department for which it is determined, after an investigation, that credible evidence of the alleged abuse or neglect exists.” (Jt. Ex. 1, III. Admin. Code tit. 89, § 300.20.) Plaintiffs argue that DCFS directives define an indicated report as “any report of child abuse or neglect made to the Department for which it is determined, after an investigation, that some credible evidence of abuse or neglect exists.” (emphasis added.) The court was unable to locate such language anywhere in the record. The regulations define an “unfounded” report as a report in wdiich “it is determined, after an investigation, that no credible evidence of abuse or neglect exists,” (emphasis added) and an “undetermined” report as any report in which it was “not possible to complete an investigation within 60 days on the basis of information provided to the Department.” (Id.) In some cases, allegations are indicated, but no determination is made as to who is the perpetrator of the abuse or neglect. These cases are referred to as being “indicated to an unknown perpetrator.” In some cases, however, this “not responsible” finding on an indicated report is registered in the SCR under the original suspect’s name. Therefore, such information can appear on an individual’s background check even though the individual was found “not responsible.” This finding is also troublesome when a report against a facility is listed under the owner’s name as opposed to the facility name. (Pis.’ FOF pages 5557.) 5. After completing the investigation, the DCP worker recommends a final determination. As part of this process, the investigator completes a Family Assessment Factor Worksheet (“FAFW”) to document his or her determination of whether a report should be “indicated” or “unfounded.” The FAFW requires the investigator to determine the extent of long-term risk factors to the health and safety of the child, focusing on the relationship between the alleged perpetrators and the children, environmental factors, and the history of abuse or neglect. (Tr. 1523.) Ultimately, on the FAFW, the investigator explains his or her rationale for “indicating” or “unfounding” a particular report. 6. An investigator’s recommended decision regarding the outcome of an investigation is reviewed by the investigator^ supervisor who has the actual authority to “indicate” or “unfound” the investigation. Supervisors sign the FAFW to signify their approval of the investigator’s recommended finding. 7. Once his or her recommended finding has been approved, the investigator completes a CANTS 2 Final Finding Report form and forwards it to the SCR, where it is registered as indicated or unfounded. (Jt. Ex. 1, III. Admin. Code tit. 89, § 300.110(j)(2)). A CANTS 2 form is a computerized summary of the information gathered in an investigation, including a computerized coding of the allegations and a determination of whether the report as to each allegation was indicated or unfounded. The CANTS 2 form also codes a retention schedule for the report, discernible only by persons familiar with such codes. 8. DCFS regulations require that an investigation be completed within 60 days. (III. Admin. Code. tit. 89 § 300.110(i)(3)(C)). This time period may be extended for periods of up to 30 days upon a showing of good cause. (Id.) Examples of reasons that would constitute good cause are: (i) State’s attorneys or law enforcement officials have requested that the Department delay making a determination due to a pending criminal investigation; (ii) medical or autopsy reports needed to make a determination are still pending after the initial 60 day period; (iii) the report involves an out-of-state investigation and the delay is beyond the Department’s control; and (iv) multiple alleged perpetrators or victims are involved necessitating more time in gathering evidence and conducting interviews. (III. Admin. Code. tit. 89 § 300.110(i)(3)(D).) The regulations do not, however, indicate to whom a showing of good cause must be made. F. Notices Regarding Indicated Reports 1.After the DCP has forwarded the CANTS 2 form to the SCR, the SCR issues a standardized notice to alleged perpetrators informing them of the results of the investigation (the “SCR Notice”). (Jt. Ex. 20, at 101-105.) 2. At the time of the preliminary injunction hearing, the SCR Notice informed the recipient that the Department determined the report to be indicated and that the recipient was “identified as a person responsible for the child abuse or neglect.” (Jt. Ex. 20, at 101.) This notice did not, however, inform the recipient of the facts of the alleged incident; indeed, a recipient was not even informed whether he or she was indicated for abuse as opposed to neglect. The form also did not suggest that the finding was a final decision that would remain in the SCR for any specific period of time. 3. The SCR Notice did explain that the recipient could appeal the indicated finding in writing within 60 days, but it did not explain the consequences of missing the 60-day deadline. 4. In addition, the Notice advised the recipient that the information in the report was confidential, but that access to it was governed by state law. The Notice did not advise a child care professional who was the subject of an indicated finding that the report would be sent to his or her employer and that his or her licensing entity, if any, would also be notified of the report. 5. Special notification letters, including CANTS 1 and 2 forms and a redacted copy of the investigative file, are sent to persons whom DCFS has identified as child care professionals who are likely to appeal. The special notification letter suffers from the same defects as the standard indicated report letter. (Jt. Ex. 20, at 116.) 6. When DCFS determines that there is credible evidence of abuse or neglect, but no evidence that the person to whom the letter is sent is responsible for that abuse or neglect-, the person receives an “indicated but not responsible” letter from the SCR. (Jt. Ex. 20, at 104-05.) This letter informs the recipient of the appeals process, but if such an individual does appeal, he or she receives a letter suggesting that an appeal is unnecessary because “you were not found to be responsible for child abuse/neglect.” (Jt. Ex. 20, at 112.) 7. Effective June 1, 2000, DCFS codified new regulations governing the information to be included in the SCR Notice. (III. Admin. Code tit. 89, § 336 et seq.) (“Amended Rule 336”). According to Amended Rule 336, the SCR Notice must provide the following information: (a) a specific statement whether the Department has determined the report indicated or unfounded as a result of an investigation; (b) the name of the perpetrator; (c) the allegations determined indicated; (d) the length of time the indicated case shall be retained by the Department; (e) a statement that a Department review of an indicated decision is available; (f) a statement that ... a review ... must be requested in writing within 60 days after notification of the completion of the investigation by the Child Protective Service Unit ...; and (g) the name and address of the individual who must be contacted in order to request a review of the Department’s decision. (III. Admin. Code tit. 89, § 336.30.) DCFS has not provided the court with copies of the new notice or with any additional rules or procedures it may have promulgated since the codification of this new regulation. G. Retention of Indicated Reports 1.According to Illinois statute, “[identifying information on ... records shall be removed from the register no later than 5 years after the report is indicated[,]” except that indicated reports “involving the sexual abuse of a child, the death of a child, or serious physical injury to a child ... may be retained longer than 5 years ... and may not be removed from the register except as provided by the Department in rules.” 325 ILCS 5/7.14. 2. Each abuse and neglect allegation is assigned to one of three retention categories based on the nature of the allegations. Category 1 allegations (death of a child and/or sexual penetration) are retained for fifty (50) years. Category 2 allegations (involving serious physical injury, sexual molestation or sexual exploitation of a child) are retained for twenty (20) years. All other allegations fall into Category 3 and are retained for five (5) years. Some allegations listed in Category 2 may be retained for five (5) years depending on the seriousness of the injuries as determined by the investigator. (ILL. ADMIN. CODE tit. 89, § 431.30.) To determine the seriousness of the injury, the investigator is instructed to consider: the extent of the injuries (whether limited to one spot, or multiple injuries); the long-term effects of the injuries (whether there will be permanent scars or disabilities); the medical treatment required (whether hospitalization or surgery is required); and, the pattern of injuries (whether there is an ongoing history). (Jt. Ex. 1, Procedure § 300.110(18)-(19).) The rule provides that if “none of the above factors are present, the allegations are to be retained for five years.” (Id.) The rule does not, however, state the extent to which any one of the four factors need be present in order to warrant a Category 2 classification. 3. The Abused and Neglected Child Reporting Act provides that after the expiration of the retention period, the indicated report must be expunged, unless another report is- received involving the same child, his sibling or offspring, or a child in the care of the persons responsible for the child’s welfare. See 325 ILCS 5/7.14. For example, if during the statutory period of retention for an individual’s indicated report, there is a subsequent indicated report against the same individual, the original report is retained until the expiration of the retention schedule applicable to the subsequent report. At the end of the latter retention schedule, however, both reports are expunged. (Tr. 1755-58.) Also, if a child is a victim in one indicated report against an adult perpetrator, and that child is later indicated as a perpetrator, the original report is retained for the length of the new report. (Tr. at 1766-67.) In other words, even if the original adult perpetrator is not in anyway involved in the subsequent report, the original report would remain in the SCR, and the individual would not receive notice of the extension. 4. On at least some occasions, DCFS has improperly retained reports beyond the date on which they were to be expunged. (Pis.’ Exs. A-D.) H. Appeals Process I. Appeals from indicated reports are now are governed by Amended Rule 336. At the time of the hearing before this court, though, the former Rule 336 had established a three-step administrative appeals process: the initial request for review or “exchange of information” step; an internal review of the indicated report; and an administrative hearing conducted by an ALJ from the administrative hearings unit (“AHU”). 2.The initial request for an appeal began the appeals process. All requests for appeals had to be made in writing within 60 calendar days of the postmark on the SCR Notice. DCFS dismissed initial requests for appeals made after the 60-day deadline. (III. Admin. Code tit. 89, § 336.190(a)(4).) During this stage, the indicated perpetrator was provided with a redacted copy of the investigative file. (Jt. Ex. 2, Procedure 336.80.) Under Amended Rule 336, this first step of the appeals process is the same. The redacted copy must be provided to the appellant within 20 days of his or her request. (III. Admin. Code tit. 89, § 336.40) (“Upon receipt of a timely request for an appeal, the Department shall send the appellant within 20 days after the receipt of the request a copy of the investigative file from which confidential information has been deleted ....”). 3.At the time of the preliminary injunction hearing, the second stage of the appeals process was a child protection internal review conducted by DCFS regional staff. (Jt. Ex. 2, Procedure 336.80(a).) The internal review team was comprised of individuals who had no prior involvement in indicating the report being reviewed. (Jt, Ex. 2, Procedure 336.90(b).) The internal reviewers considered the material in the appellant’s investigative file and written statement, and were instructed to reach an internal review decision within 30 days. (Jt. Ex. 2, Procedure 336.90(e)(3).) Internal review decisions, however, offered only a very summary rationale for upholding an indicated report. The appellant then had only 15 days to appeal the internal review decision, a time frame Plaintiffs considered unreasonably short. (Jt. Ex. 2, Procedure 336.110.) According to the record, 46.9% of the indicated findings that were internally reviewed were, upon completion of such review, expunged by DCFS. (Pis.’ Ex. UUU, Graph 3.) While this internal review step appears to have been eliminated by the new regulations, the court is not certain of this because DCFS has not provided the court with new procedures or rules implementing the new regulations. 4. The final stage of the administrative appeals process involves a hearing before an ALJ. Under the prior regulations, “the Administrator of the Administrative Hearing Unit shall ... schedule the hearing at a date within 30 calendar days of the date [of] the appellant’s written notice stating that the issue was not resolved to the appellant’s satisfaction.” (Jt. Ex. 2, Procedure 836.110(d)(1).) The AHU, however, routinely sent appellants a letter informing them that while DCFS had received their hearing request, it could not schedule a hearing promptly due to a backlog of hearing requests. The ALJ was required to issue a written opinion and recommendation to the Director within 30 calendar days after the close of the administrative record. (Jt. Ex. 2, Procedure § 836.130(b)(14).) 5. Under Amended Rule 336, the ALJ must provide the appellant a hearing date within 70 days of the date of receipt of the appellant’s request for a hearing. (III. Admin. Code tit. 89, § 386.110(a)(1)). At this stage of the appeal, as discussed earlier, the Department, which before March 1, 1996 applied a “credible evidence” standard of review, now applies a “preponderance of evidence” standard. (III. Admin. Code tit. 89, § 336.100(e)(2)). 6. At the administrative hearing stage, an appellant may secure the issuance of subpoenas, but because the investigative files are so heavily redacted, an appellant is often unable to identify adverse witnesses. Although an ALJ can order the release of an unredacted copy of the investigative file pursuant to 89 III. Admin. Code § 431.60(a), Edward Cotton testified that he knew of no cases in which an ALJ had ordered such a release. (Tr. 1821-22.) Also, children under the age of 14 are not allowed to testify at the hearing unless the ALJ determines that such testimony is essential to the determination of the appeal and there is no likelihood of inflicting emotional harm to the child. (III. Admin. Code tit. 89, § 336.110(b)(2)(A)). Therefore, even where a report is indicated principally on the statements of children, those children may not actually testify at the hearing. 7. According to Amended Rule 336, the ALJ shall have authority to “present a written opinion and recommendation to the Director within 15 calendar days after the record of the administrative hearing is completed .... This report shall include a recommended decision on whether there is a preponderance of the evidence of abuse or neglect based on information in the administrative record. The opinion shall contain findings of fact, conclusions of law and a recommendation.” (III. Admin. Code tit. 89, § 336.120.) Furthermore, Amended Rule 336 states that “[t]he Director of the Department shall receive the [ALJ’s] recommended decision 90 days after receipt of a timely and sufficient request for an appeal [and] [w]ithin the same 90 day period, the Director shall receive and accept, reject, amend or return to the [AHU] for further proceedings the [ALJ’s] recommendation.” (III. Admin. Code tit. 89, § 336.220(a).) 8. Appellants, both at the time of the preliminary injunction hearing and currently, cannot, during the appeals process, obtain a stay against the inclusion in the SCR of an indicated report against them or the disclosure of the indicated report to employers or licensing representatives. (Cotton Dep. at 123-25.) 9. Under both the former regulations and current regulations, the following persons receive notice of the final administrative decision: (a) the Illinois Department of Professional Regulation, district, regional and private school superintendents and the State Board of Education when they have been notified that an appeal has been filed in accordance with [§ 300.140]; ■ (b) administrators of child care facilities and Department licensing staff when the appellant is an employee of a child care facility; and (e) supervisors or administrators notified in accordance with [§ 300.100©]. (Jt. Ex. 2, Procedure § 336.150; III. Admin. Code tit. 89, § 336.220(d).) Furthermore, the following persons receive notice of the final administrative decision, if the decision amends, expunges or removes any record made under Section 7.11 of [AN-CRA]: “(a) parents or personal guardians of the child victim(s) if they are not the same as the appellant; (b) the mandated reporter who originally made the report of child abuse or neglect; [and,] (c) the juvenile court judge and guardian ad litem (when a State ward is involved).” There is no evidence that DCFS informs persons who were contacted during the investigation about the results of an indicated perpetrator’s appeal. 10. According to the record, DCFS expunged 46.9% of the indicated reports appealed to the internal review stage of the appeals process. (Pis.’ Ex. UUU, Graph 3.) DCFS expunged 63.3% of indicated report appeals following an administrative hearing. (Id.) Ultimately, 74.6% of appealed indicated reports are expunged throughout the appeals process. (Id.) In fact, of the twenty-four named Plaintiffs who timely appealed indicated reports against them, DCFS expunged 100% of those indicated reports. 11. The duration of the investigative and appeals processes for these twenty-four named Plaintiffs ranged from 0.4 years to more than three and a half years. (Pis.’ Ex. UUU, Graph 2.) The average duration of the investigative process and the appeals process for the seven Plaintiffs who were afforded administrative hearings of their appeals was more than 2.1 years. (Id.) The average duration of the investigative and appeals processes for the seventeen Plaintiffs whose indicated reports DCFS voluntarily expunged prior to an administrative hearing was 1.3 years. (Id.) III. Employment and Licensure Action Based on Indicated Reports A. Unsuitability for Employment or Licenses 1. DCFS issues licenses for the following types of facilities: home day cares, group home day cares, emergency shelters, foster homes, and child care agencies and institutions. See 225 ILCS 10/3, 10/2.18, 10/2.20, 10/2.21, 10/2.17; 205 ILCS 505/5. DCFS licenses are subject to renewal on a three or four-year schedule. 2. In addition to licensing a home or facility, a DCFS licensing representative monitors licensees for compliance with licensing standards and also conducts licensing complaint investigations upon receiving allegations that a home or facility has violated licensing standards. (Pis.’ Ex. NN, Deposition of Virginia' Conlee, DCFS’ Associate Deputy Director for Licensing, at 12-14.) 3. Any allegation of abuse or neglect accepted by the Hotline that concerns an incident occurring in a licensed facility is subject to investigation by both the DCP and by a DCFS licensing representative. (Id. at 22.) Indeed, a licensing complaint investigation is mandatory in every case in which a DCP investigation is pending and involves a “facility.” (Id.) Nevertheless, when a Hotline call is made, the SCR does not automatically issue a notice to the Licensing Unit, but rather the individual DCP investigator contacts the appropriate licensing representative. (Id. at 21.) Indicated reports may also be used against an individual in license revocation actions. DCFS revoked or refused to renew 21 child care licenses based on indicated reports during the two-year period from January 1, 1996 through December 31, 1997. (Pis.’ Ex. NN, Conlee Dep., Ex. 41.) 4. In order to obtain or renew a license, or to work unsupervised with children in a licensed facility, DCFS must first conduct a background check on the license applicant, the licensee or the employee. The background check determines whether the person at issue has an indicated report against him or her (Id. at 35), and reveals one of the following: that no reports were registered; that a child abuse or neglect investigation is pending; that an indicated report is “possible;” or that one or more reports of indicated findings exist. 5. Pursuant to Rule 385, which was in effect at the time of the hearing before this court and currently remains in effect, DCFS is required to disclose indicated reports to the licensed employers of any person who has an indicated report against him or her and to licensing representatives. (Jt. Ex. 4, ILL. ADMIN. CODE tit. 89, § 385.50(b)(1).) 6. If an individual is indicated based on any one of fourteen allegations, or has more than one indicated report based on any one of eighteen other allegations, all denominated in Rule 385.50(a), the individual is presumed by DCFS not suitable for work that allows access to children (“presumption cases”). By labeling such individuals as presumptively unsuitable for work, in essence, DCFS requires that the employer or licensing representative take some action with respect to the employee or licensee, including termination. 7. Employers and licensing representatives may request that the Director waive the Presumption of Unsuitability. (III. Admin. Code tit. 89, § 385.50(b)(2).) Unless or until the presumption is waived by the Director, the person presumed unsuitable cannot work with children. (Pis.’ Ex. NN, Conlee Dep. at 60.) If the employer continues to employ the indicated perpetrator without a waiver, DCFS’ Licensing Unit is required to take enforcement action against the employer, including conditional licensing, a corrective plan or license revocation. (Id. at 79-80.) 8. In cases in which a person has been indicated for an allegation that is not enumerated in Rule 885.50(a), DCFS still requires employers and licensing representatives to make a licensing or employment “decision” in light of the indicated report, and to advise the Department of the decision (“non-presumption cases”). (Jt. Ex. 4, Rule 885.50(c).) In non-presumption cases, if the employer wants to retain the employee in a position that permits access to children, he must request a CANTS clearance from the Licensing Unit. (Pis.’ Ex. NN, Conlee Dep., Ex. 33.) 9. For both types of cases, Rule 385.50(b)(1) provides that a person with an indicated report “shall not automatically be denied a license or refused license renewal ... [or] be denied a position which allows access to children in a child care facility licensed by the Department.” (Ill.Admin.Code, tit.89, § 385.50(b).) Instead, an employer or a licensing representative must afford the person with an indicated report an opportunity to present evidence as to why he or she should be retained as an employee or licensee. (Id.) The types of evidence the rule identifies as evidence the Department or employer may consider in making its decision assume that the indicated finding was accurate and that the individual did commit abuse or neglect. (III. Admin. Code tit. 89, § 385.50(b)(l)(A-H).) 10. Indicated perpetrators have no right to seek a waiver or a CANTS clearance from DCFS on their own, nor do they have the right to dispute an employer’s or licensing representative’s failure to seek waivers or clearances. (Pis. Ex. NN, Con-lee Dep. at 148-49; Jt. Ex. 4, III. Admin. Code tit. 89, § 385.50(c) (an employer’s decision is “final, subject to review under the personnel policies of the [employer’s] governing body.”).) 11. DCFS reviews the employers’ and the licensing representatives’ requests for waiver, and can deny them. DCFS has not promulgated any directives defining the circumstances under which presumed unsuitability will be waived, and sets forth no time standards within which it must act on a request for waiver. (Pls.’s Ex. NN, Conlee Dep., at 82.) Indeed, sometimes there are significant delays in granting waivers. (Pis.’ Ex. A at 4913-4924 (11 months), 4957-4971 (7 months), 5028-5041 (14 months).) DCFS does not issue a notice to the employee or licensee when a request for waiver is denied (Id. at 147), and denials are unappealable. (Id. at 82.) 12. While the “Notice of Presumption of Unsuitability” informs employers that they must afford employees an opportunity to present their case and retain employment, DCFS does not monitor this process. (Pis.’ Ex. NN, Conlee Dep., at 67.) Moreover, while employers are supposed to notify the Licensing Unit when they make decisions, they do not always do so, particularly when the employer terminates the employee. (Id. at 73.) B. Indicated Report Notices to Employers and Licensing Representatives 1. Once notified of indicated reports, the Licensing Unit generates notices to send to employers and licensing representatives requesting employment or licensing decisions with respect to the person against whom the report is indicated. In the most recent version of these notices, DCFS directs employers to complete their responses and inform DCFS of their employment decision within 30 days. (Pis.’ Ex. NN, Conlee Dep., Exs. 32, 33, 35.) 2. In July 1997, the Licensing Unit began to send “Notices of Presumed Unsuitability” to employers whose employees had indicated reports against them and to licensing representatives when individuals with indicated reports applied for licenses or operated licensed facilities. The notices inform employers and licensing representatives that the Department has made a presumption that the individual is not suitable for a position which allows access to children, and that the employee must demonstrate to the employer his fitness for employment or his fitness for operating or residing in a licensed facility. 3. Notices in both presumption and non-presumption cases advise employers and licensing representatives of the procedure for securing a waiver of the presumption or a CANTS clearance and the types of evidence that may be considered in deciding whether to make one of those requests. (Id., Exs. 4, 6, 14, 15, 32, 33, 35.) Along with the notices, DCFS sends an abstract that lists the allegations against the employee/licensee and some identifying information. (Id., Ex. 5.) None of these notices informs the employers or the licensing representatives that the employee or licensee has the right to appeal the indicated report against him or her. 4. The employee or licensee does not directly receive one of these notices. (Id., Conlee Dep., at 259-60.) 5. During the time period between July and November 1997, 42% of employers who received notices of presumed unsuitability denied employment or terminated the employment of the person with the indicated report. (Pis.’ Ex. UUU, Graph 5.) During that same time period, 27% of employers did not respond at all, and 27% requested waivers. IV. Safety and Protective Plans 1. In conjunction with investigations into child abuse and neglect, DCFS utilizes a variety of plans aimed at protecting children pending the outcome of an investigation and/or after a report has been indicated. 2. Protective plans apply only to licensed facilities, including day care centers, foster homes, child welfare agencies and group homes. Pursuant to DCFS Rules, the alleged perpetrator is required to be restricted from contact with children in the facility during the investigation. (Jt.Ex. 1, Procedure, § 300.160(b).) There is no requirement, however, that DCP investigators wait until deciding to initiate a formal investigation before they initiate protective plans; such plans may be prepared after all child victims are seen by the investigator. (Tr. 2531.) Protective plans are to be documented on CANTS 21B or 21C forms. (Jt. Ex. 21, at 29-30.) In this licensing context, the protective plan prepared by the DCP investigator is enforced and/or modified by the licensing representative. 3. CERAP safety plans are similar to protective plans, but can also be applied to other family cases. (Tr. 2515-16.) There is no specific authority for safety plans in DCFS Rules or Procedures. Safety plans are to be prepared on CFS 1441 (CERAP) forms. (Jt. Ex. 21, at 89.) 4. The sole DCFS directive addressing protective plans is Rule 300.160 which applies to licensed child care facilities only. This Rule sets forth no guidelines or procedures for determining which conditions may be appropriate or excessive depending on the circumstances of the alleged abuse or neglect. Protective and safety plans have no prescribed durational limit and are not appealable by any means. 5. Protective and safety plans are voluntary, but refusal to agree to such a plan may result in removal of a child from a home or a facility if the investigator determines that refusal would render the child unsafe. 6. If a protective plan is violated, DCFS may revoke the license of the home or facility, lower the capacity of the home or facility, alter licensing conditions, or remove a child. 7. Examples of protective and safety plan action involving the named Plaintiffs included: restricted hours of operation; a requirement that household members, including minors, be moved out of their own home; a requirement that additional staff be hired; a requirement that a certain employee or owner of a facility not work with children; and removal of foster children from a home, combined with a prohibition on new placements in that home. V. Examples of the Investigative and Appeals Processes The court’s hearing on Plaintiffs’ motion for preliminary injunction spanned 18 days, from May 17, 1999 until September 3, 1999. This hearing generated a 2,952 page transcript. From this massive record, the court has selected a handful of cases as illustrative of problems that DCFS policies and procedures have created or exacerbated. A. Plaintiff A.H. 1. A.H. is a twenty-six year old woman who came to the United States from Guatemala in 1993. She is currently a legal permanent resident of the United States. A.H. is married and has three children. 2. In August 1996, S.N. hired A.H. to care for her child, P.O., in her home. At the time of AH.’s hire, S.N. was separated from her husband and had primary custody of her son, P.O., born June 22, 1996. When S.N.’s work required her to be out of town, A.H. would spend the night at S.N.’s home caring for P.O. 3. P.O. suffers from a seizure disorder which began to manifest itself when P.O. was four months old. According to S.N., when P.O. experienced a seizure, he would cry abnormally, his body would stiffen, his eyes would roll back, and he was unresponsive for several minutes. (Pl.’s Ex. X at 72.) Prior to September 19, 1997, A.H. had never witnessed P.O. suffering a seizure. 4. On September 19, 1997, A.H. spent the night at S.N.’s home while S.N. was out of town for business. At 1:30 a.m., A.H. awakened to a loud noise followed by P.O. screaming. She ran to P.O.’s room where she found him trying to stand up, but his face was rigid and he appeared unable to focus. A.H. noticed that P.O.’s left leg was twisted to one side, and that he was attempting to stand on his right leg. 5. Around the same time, S.N. returned home from her trip. As A.H. brought P.O. out of his room, S.N. arrived at the top of the stairs. During the rest of the night, P.O. slept only intermittently, awakening frequently and crying. Between 8:00 and 8:30 a.m., both S.N. and A.H. took P.O. to Children’s Memorial Hospital where two physicians examined him. (Id. at 20, 23-26.) During that time, P.O.’s father, J.O., also came to the hospital. 6. At S.N.’s insistence, the physician X-rayed P.O.’s leg. The X-ray showed a fracture in P.O.’s left femur. (Id. at 29.) The physician was then joined by another physician and they asked A.H. what led to the injury. The physicians, in what A.H. testified was a hostile manner, continued to ask A.H. questions. P.O. remained hospitalized for four days. 7. During P.O.’s hospitalization, A.H. visited him. On P.O.’s second day at the hospital, a social worker interviewed A.H. during one of her visits. Specifically, the social worker asked A.H. how the fracture occurred, whether A.H. had any prior contacts with DCFS, and about her relationship with S.N.’s family. 8. On September 22,1997, medical personnel made a call to the DCFS Hotline reporting the incident that occurred on September 19,1997. DCFS assigned Martin Acevedo to investigate the case. (Id. at 1-6.) 9. A.H. first met with Acevedo on September 24, 1997 at S.N.’s home while S.N. and P.O. were present. A.H. and S.N. were interviewed individually and together. During her interview with Acevedo, A.H. repeated the version of events she provided to the medical personnel at the hospital. A.H. indicated that she thought the injury may have been caused by the child catching his foot between the crib rails during his seizure. (Id. at 25-26.) 10. During this initial interview, Acevedo completed and provided A.H. with a copy of a “Notification of a Report of Suspected Child Abuse and/or Neglect” form (CANTS 8). This document did not indicate that A.H. was considered a suspect, but it did inform her that an investigation had been opened, and that if credible evidence of child abuse and/or neglect were found, the report would stay on file with the Central Register for a minimum of five years. The notice also informed A.H. that all information in the Central Register is confidential. Finally, the notice informed A.H. that she would be notified in writing of the outcome of the investigation. (Id. at 7.) 11. A.H. testified that during this initial interview, Acevedo informed her that she would be barred from caring for P.O. if DCFS were to make a finding that she was the perpetrator. In his notes of this meeting, Acevedo wrote that he informed A.H. “that she cannot b[aby]s[it] [P.O.] pending investigation.” (Id. at 26.) A.H. testified that during the interview, Acevedo gave her the impression that he was not paying attention to her or to P.O.’s efforts to interact with her. 12. At the same time, Acevedo interviewed S.N. who told Acevedo that A.H. provides “exceptional” care for her son and that she had no concerns or complaints about A.H. (Id. at 23-24.) Acevedo also observed on that day that P.O. appeared “chunky, healthy, and clean.” (Id. at 27.) From the record, it appears that Acevedo made no contacts with the subjects of the report or with collateral contacts during the month of October and the first half of November. 13. Acevedo next met with A.H. on November 12, 1997 when he arrived at S.N.’s house unannounced. (Id. at 35.) A.H. testified that Acevedo was “livid” when he found A.H. at S.N.’s house, asking her “didn’t I tell you [that] you couldn’t work here anymore?” According to A.H., Acevedo then told S.N. that A.H. could not work for S.N. pending the investigation, claiming that he knew that A.H. had abused P.O. A.H. testified that S.N. objected, but that Acevedo insisted that he would charge S.N. with neglect if she continued to employ A.H. At this time, A.H. and S.N. agreed that A.H. would discontinue caring for P.O. until the matters with DCFS were resolved. Three weeks later, Acevedo and his supervisor, Madeline O’Leary, informed A.H. that she could return to work for S.N., but that if P.O. were ever hurt again while in A.H.’s care, DCFS would remove P.O. from S.N.’s care. 14. During the investigation, Acevedo interviewed several other people. On September 26, 1997, and on November 18, 1997, he spoke with one of P.O.’s treating physicians, Dr. Flaherty, from Children’s Memorial Hospital. According to Acevedo’s notes of the first conversation, Dr. Flaherty opined that because the injury could have been caused only by some type of forceful twisting or turning, A.H.’s explanation that P.O.’s leg got caught in the crib spindles was not plausible. (Id. at 29.) 15. Acevedo also spoke with P.O.’s other treating physician from Children’s Memorial Hospital, Dr. Grayhack. According to Acevedo’s notes from their November 20, 1997 phone conversation, Dr. Grayhack told Acevedo that “it is extremely unlikely that the fracture occurred inside the crib.” (Id. at 40.) In an affidavit dated January 29, 1998, however, Dr. Grayhack opined that based on the medical history of the child, the nature of the injury and his interactions with P.O.’s parents and grandparents, “there exists a possibility that the cause of [P.O.’s] fracture was accidental.” (Id. at 71.) 16. On November 14, 1997, Acevedo spoke by telephone with Dr. Weiss, P.O.’s pediatrician. Having knowledge of P.O.’s history of nocturnal seizures, Dr. Weiss concluded that the injury could have occurred in his crib if he had caught his leg in the vertical bars during a seizure. Indeed, in a letter to DCFS dated March 6, 1998, Dr. Weiss wrote “[i]t is my strong opinion that [P.O.] was not the subject of child abuse from the baby sitter.” (Id. at 72.) 17. Acevedo spoke with Dr. N., a retired surgeon and S.N.’s father, on November 17, 1997. Dr. N. also confirmed P.O.’s seizure disorder and concluded that the injury could have resulted from P.O. catching his leg in the vertical bars of his crib during a seizure. Dr. N. also told Acevedo that A.H. is a “positive person” for P.O. (Id. at 38.) 18. Acevedo also spoke with P.O.’s father, J.O., on September 26, 1997. In his conversation with Acevedo, J.O. referred to A.H. as an “exceptional nanny” and “a nice person.” Another person for whom A.H. had worked as a babysitter also told Acevedo on September 28, 1997 that A.H. provided excellent care for his child, and that she is “outstanding.” (Id. at 31.) 19. Acevedo’s investigative notes contain a record of a phone conversation he had with A.H. on November 24, 1997. According to his notes, Acevedo told A.H. that the case would be indicated, meaning that the report would remain in the State Central Register for a minimum of five years. Acevedo also wrote that he informed A.H. of her right to appeal the decision, and informed her that she would receive a letter with the results of his investigation, (Id. at 41.) 20. A.H. testified that she never received such a letter, and the investigative file contains no record of the letter. Instead, on December 9, 1997, DCFS sent S.N. a notice entitled Investigation of Suspected Child Abuse or Neglect, advising her that DCFS had completed its investigation and that the report was “indicated.” The notice did not identify the type of abuse indicated. This notice further informed S.N. that the report wrould remain in a confidential file in the State Central Register, although it did not state the length of time the report would remain there. Finally, the notice informed S.N. that DCFS has an appeal process by which inaccurate reports may be amended or destroyed. (Id. at 45.) 21. On January 6, 1998, A.H. sent a letter informing DCFS of her intent to appeal the indicated finding, and requesting a copy of the investigative file on her case. DCFS did not respond to this request. (Id. at 46.) A.H. saw a copy of her file for the first time more than a year later, on January 28, 1999, during her own deposition taken by DCFS in connection with this litigation. 22. According to the Family Assessment Factor Worksheet, filled out by the investigator after the investigation was complete, Acevedo indicated A.H. for P.O.’s bone fracture because the two treating physicians opined that it was unlikely that P.O. had been injured in his crib. (Id. at 17,19.) 23. On February 22, 1999, pursuant to the DCFS regulations in place at the time of the preliminary injunction hearing, A.H. requested an internal review, attaching all the exculpatory evidence described above. (Id. at 50-73.) On March 22, 1999, DCFS notified A.H. that after conducting an internal review, it had determined that credible evidence existed to support the indicated finding, and that it therefore denied her request for expungement. (Id. at 75-78.) The internal reviewer’s rationale for upholding the indicated report was attached to this notice. The reviewer explained that the indicated report was supported by a “preponderance of the evidence” because Dr. Flaherty, in consultation with all the other physicians, including P.O.’s pediatrician, had concluded that the fracture was not consistent with the explanation given by A.H. (Id. at 78.) The evidence reflects, however, that P.O.’s pediatrician, in fact, believed that P.O. likely injured his leg in his crib during a seizure episode. 24. A.H. filed a timely appeal from the decision denying expungement of the indicated finding against her. (Id. at 79.) A hearing was initially scheduled on May 12, 1999, but did not actually begin until July 7, 1999. On August 11, 1999, before the hearing resumed, however, DCFS voluntarily unfounded the report, and directed that A.H.’s name be removed from the SCR. (Id. at 74.) Because A.H. had been indicated for a serious physical injury to P.O. (broken femur), had the record not been expunged, it would have remained in the SCR for twenty years. 25. Before expungement of her record, A.H. sought employment with two agencies that employ child care workers. Because both agencies asked about her prior involvement with DCFS, she was not permitted to apply for the positions. In both January and March 1998, A.H. called DCFS to inquire about getting a license to operate a day care center. On both occasions she was told she could not be licensed with an outstanding indicated report. B. Plaintiff R.F. 1. Plaintiff R.F. became a foster parent after DCFS attempted to place a relative of hers, an infant named Arquel, with her in June 1993. Because R.F. did not qualify as a sufficiently close relative of Arquel to care for her without a license, DCFS advised her that she was required to become licensed as a non-relative foster parent. In September 1993, R.F. began the process of applying for a foster care license. R.F. obtained her license in December 1994. 2. Although R.F. had not yet secured her foster care license, DCFS appeared before a juvenile court judge to obtain permission to place another child, Latrice, born with cocaine in her system, with R.F. DCFS placed Latrice with R.F. on February 4, 1994. 3. Within the following year, R.F. also assumed responsibility for four of Lattice's siblings: Veronica, Georgia, Andrea and Lachita. As a result, R.F. had six foster children in her home. R.F. also had a minor son, although from the record it is unclear with whom he lived. 4. The siblings’