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(1) The subject of a child abuse or neglect report that is determined by the department as substantiated pursuant to ARM 37.47.612 may request a fair hearing.

(2) The request for a fair hearing must be in writing and be sent within 30 days after the date of mailing of the department's initial notice of its substantiation determination. The request must be sent to the Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, MT 59604.

(3) Upon receipt of the request for a fair hearing, the department will conduct an informal review of the investigation including the entire case record.

(a) The informal review is limited to the records and documentation in the case record and any written material provided by the subject.

(b) If, after the informal review, the department determines that the results of the investigation are not substantiated, pursuant to ARM 37.47.612, the department will amend the finding to reflect that the report is unsubstantiated or founded. The subject will be notified of the decision.

(c) If, after the informal review, the department determines that the investigation should be upheld as substantiated, pursuant to ARM 37.47.612, the department will notify the department's Office of Fair Hearings so that a fair hearing may be scheduled.

(4) The fair hearing will be conducted pursuant to the procedures specified in ARM 37.5.304, 37.5.307, 37.5.313, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334, and 37.5.337, subject to the limitations specified in ARM 37.47.615.

(5) Hearsay statements of the child victim are admissible as evidence in the fair hearing on an investigation of child abuse or neglect report. The administrative law judge will determine the weight to give each child victim's hearsay statement. The factors to be considered in determining the weight of the child hearsay statement include:

(a) the attributes of the child making the hearsay statement;

(b) the witness relating the child's hearsay statement;

(c) the child's statement itself; and

(d) any other factors that provide for the reliability of the child's statement.

(6) Hearsay statements of persons other than the child victim are admissible in accordance with Montana Rules of Evidence and relevant case law.

(7) The hearing officer's proposal for decision is subject to review under ARM 37.5.331.

(8) A fair hearing is not available for reports that are determined to be unsubstantiated or founded.  


History: 2-4-201, 41-3-208, MCA; IMP, 2-4-201, 2-4-612, 41-3-203, 41-3-204, MCA; NEW, 2004 MAR p. 2409, Eff. 10/8/04; AMD, 2010 MAR p. 539, Eff. 2/26/10; AMD, 2015 MAR p. 306, Eff. 7/1/15; AMD, 2020 MAR p. 2434, Eff. 1/1/21.

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