Section 148-201-XI - ADMINISTRATIVE HEARING PROCEDURES 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 Hearings7. 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.J. At the hearing, the Department shall bear the burden of persuasion. The hearing officer shall determine by a preponderance of the evidence whether the evidence presented at the hearing, taken as a whole, is sufficient to support the allegation that the appellant subjected the child to abuse or neglect as of the time of the substantiation or indication.K. The hearing officer shall make a recommendation to the Commissioner (pursuant to the Department's Administrative Hearings Regulations governing Orders of Reference) to take one of the following actions on the determination of abuse or neglect: 3. in the case of a substantiated finding, lower it to an indicated finding. When the hearing offer recommends to the Commissioner that a substantiated finding be lowered to an indicated finding, if that recommendation is adopted by the Commissioner, the appellant is not permitted any additional appeal rights under these rules related to the indicated finding.L. Notwithstanding the rules of the Office of Administrative Hearings, an appellant's representative must be an attorney or, to the extent that Maine law allows a non-attorney to represent a party at an administrative hearing, a person who would be eligible to receive information and records from the Department pursuant to 22 M.R.S.A. §4008. If the representative is a non-attorney employee of a legal services firm or agency, if the representation is permitted by law, then the representative must be supervised by an attorney, who must file with the Office of Administrative Hearings a letter or certification that the attorney is personally supervising the representative in the appeal. The representative may not be a person who was involved in the circumstances that led to the finding. The representative may not testify at the hearing or be the author of any documentary evidence.
10-148 C.M.R. ch. 201, § XI