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| Montana Administrative Register Notice 37-498 | No. 1 01/14/2010 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF
TO: All Concerned Persons 1. On February 13, 2010, the Department of Public Health and Human Services proposes to amend the above-stated rules. 2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on February 5, 2010, to advise us of the nature of the accommodation that you need. Please contact Rhonda Lesofski, Department of Public Health and Human Services, Office of Legal Affairs, 3. The Child and Family Services Division (CFSD) of the Department of Public Health and Human Services (department) proposes to amend ARM 37.47.610(6) to allow a means by which fair hearing decisions may be reviewed administratively before becoming final agency decisions. At present, these decisions may only be reviewed by appealing them to district court. CFSD reasonably believes this proposed change will allow parties who may not have the means or desire to go to district court to potentially preempt the necessity of doing so by asking the director to consider the proposed decision, the exceptions filed, briefs and oral argument, and the record of the hearing before allowing the proposed decision to become final. To fully effectuate this goal, ARM 37.5.118 must also be changed to include reference to two other administrative rules (ARM 37.5.328 and 37.5.331). Respectively, these two rules describe the content requirements for proposed decisions, and the notice and review process relating to proposed decisions. ARM 37.47.601 must also be amended slightly to include a reference to the proposed change in ARM 37.47.610. Similarly, ARM 37.47.613 must be amended to clarify that substantiated reports of child abuse or neglect will be listed as "pending" in CFSD's protective services information system until administrative and judicial appeals have both been exhausted. The proposed administrative review process is already being used by other department divisions. Therefore, adoption of this proposed change is also reasonable because it makes CFSD's review process consistent with that being used elsewhere in the department. Apart from the proposed changes noted above, CFSD also proposes to change ARM 37.47.610(2). This change simply updates CFSD's address following relocation of the division to a new physical location in 4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined: 37.5.118 SUBSTANTIATED REPORTS OF CHILD ABUSE OR NEGLECT: APPLICABLE HEARING PROCEDURES (1) Hearings contesting substantiated reports of child abuse, neglect or exploitation are available to the extent provided in ARM 37.47.610. 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 apply to such hearings, subject to the limitations specified in ARM 37.47.615. IMP: 2-4-201, 2-4-612, 37.47.601 PROTECTIVE SERVICES: PURPOSE (1) The rules of this subchapter govern the disclosure and amendment of case records containing reports of child abuse, neglect or exploitation, and identify a procedure to administratively challenge a substantiated report of child abuse, neglect, or exploitation. 37.47.610 CHILD PROTECTIVE SERVICES: RIGHT TO FAIR HEARING TO CONTEST SUBSTANTIATED REPORTS (1) remains the same. (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: Division Administrator, Department of Public Health and Human Services, Child and Family Services Division, (3) through (5)(d) remain the same. (4) The fair hearing will be conducted pursuant to Title 2, chapter 4, part 6, (6) The hearing officer's proposal for decision is IMP: 2-4-201, 2-4-612, 37.47.613 CHILD PROTECTIVE SERVICES: LISTING OF DETERMINATION IN THE PROTECTION INFORMATION SYSTEM (1) When the department substantiates a report of child abuse, neglect, or exploitation, the department will initially list in its protective services information system (2) remains the same. (3) If the subject requests a fair hearing pursuant to ARM 37.47.610(2), the department's determination will be listed as pending in its protective services information system until IMP: 2-4-201, 41-3-202, 41-3-204, 5. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to: Rhonda Lesofski, Office of Legal Affairs, Department of Public Health and Human Services, 6. If persons who are directly affected by the proposed action wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Rhonda Lesofski at the above address no later than 5:00 p.m., February 11, 2010. 7. If the agency receives requests for a public hearing on the proposed action from either 10% or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those directly affected has been determined to be 13 persons based on an average of the 14 CFSD fair hearings conducted in 2008 and 12 CFSD fair hearings conducted in 2009. 8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department. 9. An electronic copy of this Proposal Notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of this Notice conform to the official version of the Notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the Notice and the electronic version of the Notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems. 10. The bill sponsor contact requirements of 2-4-302, MCA do not apply.
/s/ Bernie Jacobs /s/ Hank Rule Reviewer Anna Whiting Sorrell, Director Public Health and Human Services Certified to the Secretary of State January 4, 2010.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
