Current through Register 1531, September 27, 2024
The following matters are the exclusive grounds that may be
appealed via the Fair Hearing process pursuant to
110
CMR 10.00:
(1)
Applicant's Grounds for
Appeal. An applicant for services has the right to appeal:
(a) the failure of the Department to follow
110 CMR, which resulted in substantial prejudice to the applicant;
(b) the computation of a fee for services in
excess of the minimum fee set by the Department if the applicant is claiming
that the fee was incorrectly calculated;
(c) the imposition of the minimum fee set by
the Department if the applicant can show cause that he or she is exempt from
that fee;
(d) any action or
inaction of the Department involving the placement of children across state
lines, pursuant to the provisions of
110 CMR
7.500: Introduction to Interstate
Placement Services.
(2)
Biological Parents' Grounds
for Appeal. In addition to any other matters which are appealable
pursuant to 110 CMR 10.06(1) and (3), biological parents may appeal when a goal
determination made at a Foster Care Review changes pursuant to
110 CMR
6.10(12): Appeal of
FCR Determination.
(3)
Recipients' Grounds of Appeal. A recipient of services
from the Department has the right to appeal the following actions by the
Department or Provider:
(a) the suspension,
reduction or termination of a service; however, there shall be no right to a
Fair Hearing if:
1. the termination of a
service is due to a judicial determination that the recipient's parental rights
were terminated;
2. the termination
of a service is due to a judicial determination that all of the recipient's
minor children are under a permanent custody order to another individual
pursuant to M.G.L. c. 119 § 26, and/or are under a guardianship to another
pursuant to M.G.L. c. 190B;
3. the
service being terminated is to a parent(s) whose child has turned 18 years of
age; or
4. the service being
terminated is to an individual 22 years of age or older.
(b) the calculation or recalculation of a fee
if the recipient can show cause that the fee was calculated
incorrectly;
(c) the imposition of
the minimum fee if the recipient can show cause that he or she is exempt from
that fee;
(d) the failure of the
Department to follow 110 CMR, which resulted in substantial prejudice to the
recipient.
(4)
Foster Parents' Grounds of Appeal. A foster parent has
a right to appeal the following actions by the Department although a right to
appeal does not confer or create a liberty or property interest to a foster
parent.
(a) the removal a foster child from
the foster home, except that no right of appeal exists if the child is to be
removed in order to be placed:
1. with his or
her biological or adoptive parent(s);
2. in one of the following placements, if the
current placement is not such a placement, unless the foster parent(s) has
applied to be a pre-adoptive or guardian placement for the child and has not
been rejected by the Department as a pre-adoptive or guardian placement for the
child, or there is a Fair Hearing appeal pending challenging the denial of the
current foster parent as the child's pre-adoptive or guardian placement;
a. in a pre-adoptive home;
b. with a prospective guardian;
c. in a home where one or more of the child's
siblings is residing; or
d. in a
kinship home of the foster child if the current foster parent is not a kinship
home of the foster child.
3. in an independent living
situation;
4. in a different foster
home because the child specific or kinship home was not approved as a
foster/pre-adoptive home for the specific child, or was not reapproved after a
reassessment under
110
CMR 7.113
: Reassessment of
Foster/Pre-adoptive Parents and Foster/Pre-adoptive Homes;
5. in a different foster home because the
foster parent's license is either terminated or is not renewed after a
reassessment under
110
CMR 7.113: Reassessment of
Foster/Pre-adoptive Parents and Foster/Pre-adoptive Homes;
6. in a Department foster home, if that child
is being moved from an intensive foster care home, and the child is no longer
in need of intensive foster care, unless the intensive foster parent is seeking
to become a pre-adoptive or prospective guardian placement and has not been
denied by the Department.
(b) closure of the foster home, termination
of a license as a foster parent/home or denial of a renewal of a foster
parent/home license;
(c) denial of
the foster parent as a legal guardian or adoptive parent for a child who has
been in his or her foster home for at least six months;
(d) the failure of the Department to follow
110 CMR, which resulted in substantial prejudice to the foster
parent;
(e) a Foster Care Review
determination to change the service plan goal pursuant to
110 CMR
6.10(12): Appeal of
FCR Determination to change a goal.
(5)
Pre-adoptive and Adoptive
Parents' Grounds of Appeal. A pre-adoptive and adoptive parent has
the right to appeal the following decisions by the Department:
(a) denial of an application to become a
Pre-adoptive placement;
(b)
withdrawal of Department sponsorship of a Pre-adoptive placement;
(c) removal of a child from a Pre-adoptive
placement, except that no right of appeal exists if the child was or will be
placed with his or her parents, in an independent living situation, or if the
pre-adoptive parent is either not reapproved for a child specific or kinship
home, or his or her license is either terminated or not renewed for an
unrestricted adoptive home after an evaluation under
110
CMR 7.113
: Reassessment of
Foster/Pre-adoptive Parents and Foster/Pre-adoptive Homes;
(d) decisions related to the adoption subsidy
program, including:
1. the denial, reduction,
suspension or termination of an adoption subsidy, except that there shall be no
right to challenge a decision to terminate a subsidy if the child is 21 years
of age and has been receiving a Title IV-E subsidy, or the child is 22 years of
age and has been receiving a state adoption subsidy;
2. the decision to provide a deferred subsidy
or to continue a deferred subsidy after a request for
re-determination;
3. the existence
of extenuating circumstances for an adoption subsidy after finalization of the
adoption of a child with special needs;
(e) closure of a foster home which is also a
Pre-adoptive placement;
(f) the
failure of the Department to follow 110 CMR, which resulted in substantial
prejudice to the Appellant.
(g) the
delay or denial of the placement of a child for adoption when an approved
family is available out of state.
(6)
Prospective Guardians' or
Guardians' Grounds for Appeal. A Prospective Guardian or Guardian
has the right to appeal the following actions by the Department:
(a) denial of an application to become a
guardian for a child in Department care or custody;
(b) withdrawal of the sponsorship of a
guardianship;
(c) removal of a
child from a prospective guardianship placement, except that no right of appeal
exists if the child was or will be placed with her/his parents, in an
independent living situation, or if the Prospective Guardian or Guardian is
either not reapproved as a child specific or kinship home, or his or her
license is either terminated or not renewed for an unrestricted adoptive home,
after an evaluation under
110
CMR 7.113: Reassessment of
Foster/Pre-adoptive Parents and Foster/Pre-adoptive Homes;
(d) decisions related to the guardianship
subsidy program, including the:
1. denial,
reduction, suspension or termination of a guardianship subsidy, except that
there shall be no right to challenge a decision to terminate a subsidy if the
child has turned 18 unless a request for an extension has been granted under
110 CMR
7.303(13)
:
Extension of Guardianship Subsidy Over Age 18;
2. denial of a state funded guardianship
which was requested on the ground that extenuating circumstances exist for a
guardianship subsidy after finalization of the guardianship;
3. denial of a request for an extension of a
guardianship subsidy under
110 CMR
7.303(13)
:
Extension of Guardianship Subsidy Over Age 18 for a Young Adult unless
the Young Adult has turned 22.
(e) a decision to close a foster home which
is also a proposed guardianship placement;
(f) the failure of the Department to follow
110 CMR which resulted in substantial prejudice to the Appellant.
(7)
Foster and
Pre-adoptive Parent Applicants' Grounds for Appeal. Foster and
Pre-adoptive parent applicants have the right to appeal the Department's
decision to deny an application to become a Foster parent or Pre-adoptive
parent, except that no right of appeal exists if the decision is based on the
applicant's failure to effect specified changes within the allotted time after
receiving notice from the Department.
(8)
Adolescents' Grounds for
Appeal. In addition to any other matters which are appealable
pursuant to 110 CMR 10.06(1) and (3), an Adolescent has the right to appeal.
(a) a Foster Care Review determination to
change the service plan goal pursuant to
110 CMR
6.10(12): Appeal of
FCR Determination;
(b) the
denial of a request to receive services, including placement services, from the
Department 18 years of age or older.
(9)
Children's Grounds for
Appeal. In addition to any other matters which are appealable
pursuant to 110 CMR 10.06(1) and (3), children younger than 14 years old has
the right to appeal, through an attorney or authorized representative, a Foster
Care Review determination to change the service plan goal made pursuant to
110 CMR
6.10(12): Appeal of
FCR Determination.
(10)
Young Adults' Grounds for Appeal. In addition to any
other matters which are appealable pursuant to 110 CMR 10.06(1) and (3), a
Young Adult may appeal:
(a) the denial of a
request to continue to receive services, including placement services, from the
Department 18 years of age or older;
(b) the denial of a request to return to the
Department's care and receive services if the Young Adult was in the care or
custody of the Department at the age of 18 and is not yet 22 years of
age;
(c) the termination of
services, except that no right of appeal exists if the Young Adult has reached
the age of 22.
(11)
Supported Decision Appeal. Whenever the Department has
supported a report of abuse or neglect of a child, any parent of the subject
child, any caretaker who has been identified in the Department's Central
Registry as the person believed to be responsible for the abuse or neglect, any
caretaker of the subject child and any Adolescent, who is the subject child,
has the right to appeal the Department's decision to support the report.
(a) Following the Department's decision to
support a report of abuse or neglect, the Department shall notify the parties
involved that they have the right to appeal the support decision via the Fair
Hearing Process.
(b) In situations
involving a support decision on a case not currently opened but opened after
the support decision, the Fair Hearing will be conducted after an assessment
has been completed or after the assessment period, whichever is
earlier.
(12)
Alleged Perpetrators' Grounds for Appeal.
(a) An individual who is listed on the
Department's Registry of Alleged Perpetrators may appeal such listing.
1. based on information available during the
initial investigation and/or any new information not available during the
investigation, the Department's decision was not in accordance with
110 CMR
4.33: Perpetrator/Caretaker;
or
2. the Department's procedural
actions were not in conformity with the Department's policies and/or
regulations, and/or any applicable statute or case law, and resulted in
substantial prejudice to the Appellant.
(b) In reviewing a decision to list a person
on the Registry of Alleged Perpetrators, the Area Office, and the Fair Hearing
Officer shall review any related support decision. The Area Office shall notify
the Fair Hearing Office of any support decisions and other determinations
arising from the same incident that have been challenged by the Appellant. If
the Director of Areas of the office which made the initial decisions reverses
the underlying support decision, the determination to list a person(s) on the
Registry of Alleged Perpetrators shall be changed to reflect that there is no
longer reasonable cause to believe that the person is responsible for the abuse
or neglect and the name shall be removed from the Registry of Alleged
Perpetrators. See
110 CMR
4.32: Decision to Support/Unsupport a
Report for procedures to follow if the Department finds that a 51A
report is unsupported.
