If a parent, legal guardian, custodian, or caretaker of a
child requests disclosure of information about the child contained in the
Department's record under
22 M.R.S.A.
§4008(2) and the
Department denies the request, the parent, legal guardian, custodian, or
caretaker has the right to appeal the denial pursuant to
22 M.R.S.A.
§4008(7). In such cases
the parent, legal guardian, custodian, or caretaker is the appellant.
A.
Paper Review
1.
Time Limit for Appeal: An
appellant must send a written request for a paper review of the denial no later
than thirty (30) calendar days after the appellant's receipt of notice that
access to the records has been denied. The request must be submitted to the
following address:
Finding Reviews
Department of Health and Human Services
11 State House Station
Augusta, ME 04333-011
2.
Time Within Which the Department
Must Acknowledge Request for Paper Review: If an appellant requests a
paper review the Department shall send a written acknowledgment within fourteen
(14) business days.
3.
Time
Within Which the Department Must Conduct Paper Review: The Department
shall complete the paper review with ninety (90) calendar days after mailing
the acknowledgment described in the foregoing paragraph.
4.
Time Within which the Department
Must Notify Appellant of Paper Review Decision: The Department shall
mail written notice of the outcome of the paper review to the appellant within
fourteen (14) business days after completing the paper review. If the
Department upholds the decision to deny access to the records, the appellant
must submit a written request for an administrative hearing no more than thirty
(30) calendar days after the appellant's receipt of notice that the
Department's decision has been upheld after paper review.
5.
Issue to be decided: The
issues to be decided are limited to whether the nondisclosure of some or all of
the information requested is necessary to protect the child or any other
person.
6.
Standard of
Review: The standard of review is whether a preponderance of the
evidence supports the Department's decision that nondisclosure of some or all
of the information requested is necessary to protect the child or any other
person.
B.
Administrative Hearing
1.
Order of Reference Required: An Order of Reference shall issue in
each case. The Order of Reference shall state the issue for hearing as follows:
"Whether, in accordance with
22 M.R.S.A.
§4008(7) the Department
determined that [Appellant] is the parent, legal guardian, custodian, or
caretaker of the child; and the nondisclosure of information requested is
necessary to protect the child or any other person."
2.
Separate Hearing Regulations:
The Department's administrative hearings shall be conducted in accordance with
the agency's "Administrative Hearing Regulations", 10-144, Chapter 1, found
online at
https://www.maine.gov/sos/cec/rules/10/144/144c001.doc,
subject to the exceptions and supplemental provisions herein.
3.
Exceptions and Supplemental
Substantive Rules for Conducting Administrative Hearings
a) At the hearing, the Department shall bear
the burden of persuasion.
b) Only
adult witnesses may testify.
c) The
hearing officer may admit and consider oral or written evidence of statements
made by any child that are offered by an adult witness. The hearing officer may
rely on such evidence to the extent of its probative value. The only exception
is that the hearing officer may not admit statements by a child that were made
solely for the purpose of the administrative hearing.
d) The Department employee(s) who conducted
the paper review may not testify at the hearing.
e) After the hearing has been conducted, the
hearing officer may examine the records which were the subject of the hearing
in camera, without disclosure to the parties. The hearing
officer's examination of the records may be used to inform his or her
decision.
f) Privileges are
abrogated in administrative hearings in the same manner as child protection
court proceedings under
22 M.R.S.A.
§4015.
g) The Maine Rules of Evidence are not
strictly followed in administrative hearings. Generally, evidence shall be
admitted if it is relevant and is the kind of evidence upon which reasonable
persons are accustomed to rely in the conduct of serious affairs. Evidence
which is irrelevant or unduly repetitious may be excluded.
4.
Decision: If the Department
upholds the decision to deny access to the records, the Department's decision
must inform the requester that the requester may file a petition for judicial
review of the decision within thirty (30) days of the date of the decision. The
Department shall send a copy of the decision to the requestor by regular mail
to the requestor's most recent address of record.