Section 472-1-A-VII - RIGHT TO DUE PROCESS WITH REGARD TO GRIEVANCESA. Recipients have the right to due process with regard to grievances.B. Notwithstanding any other civil or criminal recourse the person bringing the grievance may have, the facility, agency, and/or department shall afford every reasonable opportunity for informal resolution of concerns or formal resolution of grievances.C. A recipient or another person acting on behalf of the recipient may bring grievances regarding possible violations of basic rights, including any rights enumerated in these rules and the Settlement Agreement in Bates v. Peet or any other applicable law or regulation; any questionable or inappropriate treatment or method of treatment; or any policy or procedure or action, or lack thereof, of the mental health agency or facility under these rules. Grievances may be brought by or on behalf of individual clients or groups of clients.D. Persons who may bring grievances include, but are not limited to:(1) The recipient; if a recipient files a grievance, his or her legally responsible parent, guardian or custodian shall be notified;(2) The recipient's legally responsible parent, guardian or custodian;(3) The recipient's attorney, designated representative or representative of a state governmental rights protection or advocacy agency; and(4) Other persons specifically aggrieved.E. At grievant shall in no way be subject to disciplinary action, reprisal including reprisal in the form of loss, denial or termination of services or loss of privileges as a result of filing a grievance.F. Notice (1) Notices summarizing a grievant's right to due process in regard to grievances, including the process by which grievances may be filed, as well as copies of forms to be used for that purpose, shall be available within each program area.(2) The Department, or its designee, shall provide notice to children and families and guardians receiving or seeking to receive services from the Department about rights to file a grievance and the mediation and administrative appeal process. Such notice shall be provided annually to all children served by the Department and shall include information on the right to be assisted in the grievance process by the representative of choice in a manner designed to be comprehensible to the individual, by an employee of the facility, agency or program.G. Grievances (1) A grievance may be undertaken by a grievant or other acting on his or her behalf, pursuant to D, above making a formal written claim that provisions of these rules, the Settlement Agreement in Bates v. Peet or any other applicable law or regulation have been violated by any facility, agency or program. Grievances regarding the actions of specific employees shall be handled in accordance with personnel rules and contract provisions. No disciplinary action may be taken nor facts found with regard to any alleged employee misconduct except in accordance with applicable personnel rules and labor contract provisions.
(2) The filing of a grievance stays any action to reduce, terminate or suspend any service.(3) The Department must have in place two grievance processes: mediation and administrative hearing. The Commissioner shall appoint a Grievance Coordinator to oversee the mediation and hearing processes.(4) Initiating the Grievance Processa. Prior to filing a grievance, persons authorized under Section VII(D) of these rules who wish to file a grievance (the "aggrieved party") must first obtain a Grievance Form. Grievance Forms are to be readily available from providers and from the Department's regional offices and are to be provided as soon as practicable upon request.b. The Grievance Form must include notice that aggrieved parties may request mediation or an administrative hearing and must inform aggrieved parties of the requisite timeframes applicable to each process, and a space for the aggrieved party to elect mediation or an administrative hearing. The Grievance Form must also request aggrieved parties to provide information about the nature of the complaint, as well as names, addresses and phone numbers of the child, the grievant and relevant providers.c. Aggrieved parties must file a Grievance Form with the Grievance Coordinator, whose name and address will be provided on the Grievance Form.(5) Mediation a. When an aggrieved party elects mediation, the Grievance Coordinator must schedule a mediation to be held within 5 calendar days of the Grievance Coordinator's receipt of a properly completed Grievance Form. The aggrieved party, in consultation with the Grievance Coordinator and/or the mediator, shall determine the location and time of the mediation.b. At the conclusion of the mediation and when agreement has not been reached, an aggrieved party may request a subsequent administrative hearing by so notifying the Department representative present at the mediation, or the mediator if no one is present from the Department, before leaving the mediation. If the aggrieved party does not request an administrative hearing at the mediation, but requests an administrative hearing at any time thereafter, such request triggers the administrative hearing process as if it were chosen initially.c. An aggrieved party may waive the requirement that mediation be held within 5 calendar days of the filing of the Grievance Form, and will be deemed to have so waived that requirement if unwilling or unable to attend on any mediation date offered within the 5 day period. In that case, mediation will be held as soon as practicable.d. All parties shall participate in mediation in good faith.e. Neither mediation, nor any agreement or decision reached as a result of mediation, constitutes final agency action for judicial review purposes.(6) Administrative Hearings a. When an aggrieved party elects administrative hearing, the Grievance Coordinator must schedule an administrative hearing to be held within 5 calendar days of the Grievance Coordinator's receipt of a properly completed Grievance Form.b. An administrative hearing must be presided over by an impartial hearing officer designated by the Commissioner.c. Providers of care and advocates for the affected child may be heard at the administrative hearing.d. Administrative hearing procedures must be in accordance with the Maine Administrative Procedure Act, 5 M.R.S.A. §§9051et seq.e. An electronic recording must be made of any administrative hearing held pursuant to this section.f. Unless otherwise agreed by the parties, the hearing officer must issue a written recommended decision with findings of fact within one week from the Grievance Coordinator's receipt of the Grievance Form, or, if the administrative hearing was requested at the conclusion of a mediation, within two weeks from the Grievance Coordinator's receipt of the Grievance Form.g. An aggrieved party may waive the requirement that an administrative hearing be held within 5 calendar days of the filing of the Grievance Form, and will be deemed to have so waived that requirement if unwilling or unable to attend on any administrative hearing date offered within the 5 day period. In that case, the administrative hearing will be held as soon as practicable. An aggrieved party may also waive the deadline for a recommended decision and will be deemed to have so waived any applicable deadline if the hearing is held outside the 5 day period at the request of or due to the unavailability of the aggrieved party or any person the aggrieved party seeks to have present at the hearing, in which event the recommended decision will be rendered as soon as practicable.h. The aggrieved party may elect mediation at any point after requesting an administrative hearing, which alternate election suspends the deadline for scheduling the administrative hearing and the hearing officer's deadline for issuing a written recommended decision.i. All hearing officer recommended decisions are subject to further review by the Commissioner, who must issue a final decision adopting, modifying or rejecting the hearing officer's recommended decision no later than seven business days from the date of the hearing officer's recommended decision. Parties may submit written memoranda with the Commissioner within five business days of the hearing officer's recommended decision.j. The Commissioner's decision constitutes final agency action for judicial review purposes under the Maine Administrative Procedure Act. All decisions of the Commissioner must include notice of the aggrieved party's right to judicial review, including the requisite timeframe for filing an appeal.(7) Burden of Proof. In all grievances the burden of proof shall be on the agency, facility or program to show compliance, or remedial action to comply with the policies and procedures established to assure the rights of recipients under these rules.H. Access to Files An aggrieved party shall have reasonable access prior to a mediation or an administrative hearing and at either proceeding to examine the contents of his or her Department case file, and may request copies of documents within the file to be reproduced at the Department's expense.
I. Grievances regarding abuse, exploitation or neglect(1) Any allegation of abuse, exploitation or neglect shall be immediately reported to the Chief Administrative Officer of the facility or agency, to the Office of Advocacy and the required investigatory agency pursuant to the Child and Family Services and, Child Protection Act (22 M.R.S.A. Chapter 1071 §§ 4001et seq.) and facility policy approved by the Department.(2) Investigation of any such allegation shall be conducted pursuant to statutory and regulatory standards including those relating to the Child and Family Services and Child Protection Act (22 M.R.S.A. Chapter 1071 §§ 4001et seq.) and facility policy approved by the Department.14- 472 C.M.R. ch. 1, § A-VII