Code of Maine Rules › 10 - DEPARTMENT OF HEALTH AND HUMAN SERVICES › 148 - OFFICE OF CHILD AND FAMILY SERVICES › Chapter 201 - PROCEDURES FOR THE CHILD ABUSE OR NEGLECT FINDINGS, APPEALS FROM FINDINGS, AND APPEALS FROM DENIAL OF ACCESS TO CERTAIN CONFIDENTIAL RECORDS › Section 148-201-XI - ADMINISTRATIVE HEARING PROCEDURES

Current through 2024-29, July 17, 2024
Except as otherwise provided in these rules, the
				  administrative hearing shall be conducted pursuant to the procedures for Orders
				  of Reference in the Department's Division of Administrative Hearings
				  Regulations, as amended from time to time. The Order of Reference shall state
				  as the issue for hearing when the finding is substantiated, "Was the Department
				  correct when it found that (name) subjected the child and/or children named in
				  the substantiation letter of (date) to abuse or neglect or failed to protect
				  the child and/or children from abuse or neglect; and if it is found that abuse
				  or neglect occurred, should (name) be substantiated or indicated based on the
				  severity of the abuse or neglect?" The Order of Reference shall state as the
				  issue for hearing when the finding is indicated, "Was the Department correct
				  when it found that (name) should be indicated for abuse or neglect as detailed
				  in the Notice of Indicated Finding and Right to Appeal of (date)?" The
				  following rules apply to an administrative hearing of a decision to
				  substantiate or indicate a person for child abuse and/or neglect:
A. An appellant whose paper review affirms
				the substantiation finding shall be entitled to an administrative hearing. An
				appellant whose paper review affirms an indicated finding shall be entitled to
				an administrative hearing if the Chief Administrative Hearing Officer
				determines that the appellant has suffered or is likely to suffer collateral
				consequences as a result of the indicated finding. The appellant must request
				an administrative hearing in writing. That written request for a hearing must
				be delivered to the within thirty (30) calendar days after the date the
				appellant is deemed under these rules to have received notice of the results of
				the paper review. However, upon a showing of good cause, the Department will
				accept a written request for a hearing that is delivered within 60 days of the
				date the appellant is deemed under these rules to have received notice of the
				results of the paper review.
B.
				There is no email address for receipt of appeal requests and requests made by
				email shall not be valid. However, the Department shall have the discretion to
				provide an email address to accept a request for appeal by email if the
				Department chooses to do so as a courtesy or accommodation.
C. If the appellant believes that the
				appellant has or is likely to suffer imminent collateral consequences as a
				result of the finding, and if the appellant wants the Chief Administrative
				Hearing Officer to prioritize the matter for hearing under paragraph F below,
				the appellant may submit with the request for hearing a statement describing
				the collateral consequences. The request and any statement describing
				collateral consequences shall be in writing addressed to the same address as
				for requests for paper reviews.
D.
				The Division of Administrative Hearings will review all requests for hearings.
				In the case of requests for an administrative hearing on an indicated finding
				the Chief Administrative Hearing Officer will make a determination as to
				whether or not the appellant has experienced or is likely to experience
				collateral consequences as a result of the indicated finding. If the Chief
				Administrative Hearing Officer determines the appellant has experienced or is
				likely to experience collateral consequences, then the Division of
				Administrative Hearings will schedule a hearing pursuant to these rules. If the
				Chief Administrative Hearing Officer determines that the appellant has not
				experienced or is not likely to experience collateral consequences, then the
				Division of Administrative Hearings will deny the appellants request for a
				hearing on the indicated finding. This denial shall be considered final agency
				action on the indicated finding.
E.
				The Division of Administrative Hearings will schedule a
				hearing
,
pursuant to its rules, for a timely request
				for a hearing on a substantiated finding. If the office that issued the finding
				believes that the request for hearing was not timely or that there is another
				reason why the appellant is not entitled to a hearing, it may request that the
				Chief Administrative Hearing Officer dismiss the matter or that a hearing not
				be held. A copy of the office's request to dismiss the matter will be provided
				to the appellant.
F.
				Notwithstanding any provision of the Department's Administrative Hearing
				Regulations, the Department need not provide to the appellant any records that
				are privileged records (as that term is defined in these rules), except that
				the Department shall allow the Appellant to examine any records that it intends
				to introduce into evidence at the hearing.
G. The administrative hearing shall be
				conducted by an independent hearing officer of the Department of Health and
				Human Services.
H. If the Chief
				Administrative Hearing Officer determines that there are too many pending
				requests for administrative hearings for the Division of Administrative
				Hearings to handle all of them timely, then the Chief Administrative Hearing
				Officer may prioritize the pending cases for hearing. In determining the
				priority of cases, the Chief Administrative Hearing Officer shall give priority
				to any case in which the record and any statement of collateral consequences by
				the appellant shows that the appellant has or is likely to suffer imminent
				collateral consequences as a result of the finding.
I. The Department's administrative hearings
				shall be conducted in accordance with the agency's "Administrative Hearing
				Regulations", 10-144, Chapter 1, found online at
https://www.maine.gov/sos/cec/rules/10/144/144c001.doc
,
				with the following exceptions:
1. Departmental
				employees may submit their direct testimony in writing, as long as they do so
				at least ten (10) calendar days prior to the hearing, unless the parties agree
				to a shorter time. The Department shall send a copy of the
				pre
-
filed testimony to the appellant at the same time
				that it submits it to the Office of Administrative Hearings. Employees who have
				pre-filed their direct testimony may only be compelled to attend the hearing
				for purposes of cross-examination. The hearing officer shall take into account
				the other responsibilities of the Department's employees when scheduling the
				time and manner of their attendance. When necessary to accommodate their
				schedules, such employees may attend by video or telephone, if available. A
				caseworker or supervisor who has relevant information shall attend the hearing
				(in person, by video or by telephone) upon the request of the appellant made to
				the hearing officer at least 10 days prior to the hearing.
2. Oral or written evidence of statements of
				any child are admissible without the testimony of the child, except that
				statements written by a child, made for purposes of the appeal, are not
				admissible. The hearing officer may rely on a child's statement to the extent
				of its probative value. The hearing officer shall not draw any negative
				inference from a party's inability to cross-examine the child about the child's
				statements.
3. Only adult witnesses
				may be permitted to testify at the hearing, except that if the appellant is a
				child, the appellant may testify.
4. The provisions of
Maine Revised
				Statutes
, Title 22, section 4015, relating to the abrogation of
				privileges, apply to administrative hearings to the same extent that they apply
				to child protective proceedings.
5.
				If the appellant refuses or fails to execute requested releases of any
				confidential information, including but not limited to substance abuse
				treatment records, for use in the assessment, investigation or hearing, the
				hearing officer shall conclude that any relevant findings made by the
				Department that could be supported by the withheld confidential information are
				supported by that information. This paragraph applies only if the Department
				has provided the appellant with
written
notice of
				these consequences of failure to execute releases.
6. The appellant shall provide any documents
				or other exhibits that the appellant intends to introduce into evidence at the
				hearing to the Department representative handling the hearing at least seven
				(7) calendar days before the hearing, or earlier pursuant to any order from the
				Office of Administrative Hearings
7.
				The person who conducts the paper review of the finding may not testify at the
				hearing for any party.
8. Evidence
				relevant to the finding that is discovered after the finding is made shall be
				admitted, provided that the party intending to present such evidence has given
				notice to the other parties about the evidence at least seven (7) days prior to
				hearing.