CONTENTS
Introduction
If I am accused, what can I do?
Why should I appeal?
How do I find out that DHHS has put me on their list of people who have abused or neglected
children?
What if I disagree with DHHS's findings or evidence?
What will happen after I file my appeal?
How do I know what evidence is being used against me?
What happens at the hearing?
What if I lose the administrative hearing?
Can I get help with any of this?
Beginning November 1, 2003, you will have the right to appeal a Maine DHHS "substantiation" decision.
For years, DHHS has been keeping a list of people for whom allegations of child abuse or neglect have been
"substantiated." The list is used to report to potential employers (such as child care centers and schools)
and state agencies (such as the foster care licensing).
As the result of a lawsuit, DHHS has agreed to notify anyone who is "substantiated" in the future.
The notice includes the right to appeal DHHS's decision. This information explains how this system works.
|
If I am accused, what can I do? |
You can appeal. Only people who were "substantiated" after November 1, 2003 have an automatic right to appeal.
Everyone else who wants to appeal must prove that they have been harmed. For example, if you lost a
job or a license due to the substantiation, then you have been harmed.
If you don't appeal, then your name will be listed in the state's computer system for abuse and neglect.
This could hurt your future chances of getting a job or a license, becoming a foster parent, adopting a child,
or getting some other state approval that you may need.
|
How do I find out that DHHS has put me on their list of people who have abused or neglected children? |
If DHHS puts you on the list, they have to mail you a written notice within 10 business days (about 2 weeks).
The notice must include:
- Specific findings of abuse or neglect
- A summary of the evidence used to "substantiate" you
- Information about your right to appeal and how and when to do that.
|
What if I disagree with DHHS's findings or evidence? |
You have the right to appeal. Your deadline is 30 days from the date you get the notice.
If DHHS sent you the notice by certified mail and you refused delivery, the 30-day appeal period runs from that
date. If DHS sent you the notice by regular mail to your last known address, the appeal period ends 33 days
after the notice was mailed, unless the notice was returned to DHHS as "undeliverable."
You must appeal in writing. The notice gives you a DHHS address in Augusta, where you mail your appeal.
Your appeal can be a simple statement that you disagree with DHHS's decision and that you are appealing.
Your appeal letter must reach DHHS within the 30-day period. If it gets there late, they will refuse your
appeal. In that case, you can appeal DHHS's refusal based on "good cause," but it is best to mail your appeal in
plenty of time in the first place. (If it is too late to mail your letter, you can try faxing it to DHHS at 287-5282.
Keep a record of when the fax was sent. You may also want to call DHHS, to make sure they received it.)
Get a sample paper review request letter.
Alternative sample request letter, asking for expedited review.
If you miss this appeal deadline, you have no right to any appeal in the future.
You will remain on the list forever. Exception: If you are under 18 when you are "substantiated," you
can appeal at any time before you turn 25, if you have not already had your appeal earlier.
|
What will happen after I file my appeal? |
Step #1 Paper Review
First a DHHS "reviewer" will look over your record to decide if DHHS made a mistake. The reviewer must be
someone who does not have any prior knowledge of your case.
The "reviewer" also must consider any additional information you provide. You have 30 days from the day DHS got
your appeal letter to send in new information. This can include your own statements of fact, statements of
others, and written arguments. At this stage, you may want to limit your statement to a brief,
direct response to DHHS’s summary, especially if you have not yet reviewed the DHHS case file. After this file review,
you should have a better idea of the allegations being made against you. This file review should help you to prepare
more specific, relevant responses. (More about reviewing your file.)
The reviewer must send you his decision within 65 days of the date DHHS got your appeal letter.
Step #2 Administrative Hearing
If you disagree with the "reviewer's" decision, you can ask for an administrative hearing. Your deadline
for filing this appeal, in writing, is 30 days after you got the reviewer's decision. If you expect to
suffer "imminent legal harm" before the hearing can be held, you can ask the Hearing Office to speed up your
appeal. Include with your appeal request any information you have to support this request, such as information
that:
- you are about to be fired or refused employment
- you are losing or being denied a license or government benefit
- you are being expelled or denied admission to an educational program
- you are being deprived of "life, liberty, or property"
Get a sample hearing request letter.
Alternative sample request letter, asking for expedited hearing.
You will get a notice stating the date, time and place of your hearing.
| How do I know what evidence is being used against me?
|
The statement on your original notice is only a summary of DHHS’s findings. This statement is based on your case
record. DHHS can withhold "privileged records." These are records that DHHS "reasonably believes would increase
the risk of harm to a child" if you saw them, or records that the law requires DHHS to keep private. Otherwise, you
have the right to review your record, so that you know what is being said about you and your case.
Contact DHHS to arrange a time to review your record. You may want to do this before you file reasons for your
appeal so that you know exactly what information is being used against you. (In the meantime, you can send a short
letter of appeal, without stating any reasons, in order to meet the appeal deadline.) In any event, complete your
file review in plenty of time before your hearing so that you can be well-prepared to respond to the charges. Allot
plenty of time to review your record and to take notes. If you cannot review the entire record in one sitting, make
a second appointment to come back and finish your review.
Whether or not you use your right to review the entire case record, DHHS is required to send you "a copy of all
non-privileged relevant records" prior to your hearing, if you request them. DHHS rules require you to ask at least
10 days before your hearing. We recommend that you make this request in your letter of appeal. If you do not get
these records at least 72 hours (3 days) before your hearing, you can ask the Hearing Officer for a "continuance" of
the hearing. This is to postpone the hearing until you have had the chance to review the DHHS records and prepare
a defense.
|
What happens at the hearing? |
At the hearing, you can testify and present relevant evidence. Children are not allowed to testify
(except for a child who has been "substantiated"). However, you can present oral or written statements of a
child. If you want more information about hearing procedures, or the "substantiation" notice and appeal rules,
ask DHHS and they must give it to you.
If you have documents you want the hearing officer to read—such as a child affidavit or a doctor’s statement—you
must bring those to the hearing. You can also present witnesses who have first-hand knowledge of any relevant facts.
You can ask a witness to come voluntarily, or you can ask the hearing officer to formally "subpoena" a witness.
If you think you need to have any witnesses subpoenaed, contact the hearing office several days before your hearing,
or as soon as you can after you get the DHHS record.
It is a good idea to make an outline of the things you want to say and evidence you want to present.
Include questions you want to ask DHHS’s witnesses. Include points you want to make in a closing argument.
This will help you to remember all of the evidence and arguments you wanted to present. (If you file a court appeal
later on, the court will limit its review to this hearing record.)
After the hearing, the DHS hearing officer will mail you a copy of her decision.
|
What if I lose the administrative hearing? |
You have another 30 days to appeal to the Maine Superior Court. This would be difficult to do without a
lawyer. Seek legal help right away.
|
Can I get help with any of this? |
You have the right to be represented by a lawyer at any time during the DHHS appeal process.
If you cannot afford a lawyer, Pine Tree Legal
Assistance may be able to help you. Although we cannot take all of these cases,
we will consider taking your case if:
- you are the victim of domestic violence and you were substantiated for failure to protect your child;
- you are a parent with a mental illness; or
- you stand to lose a professional license or job due to the substantiation.
