DHHS "Substantiation" Hearings Described

The power of the Department of Health & Human Services to intervene in families lives on the thinest of suppositions never ceases to amaze me. Prior to a few years ago if the Department sent a letter "substantiating" you as a sex offender or a danger to children there was very little practical recourse. From that point forward the Department would require the subject of the letter no to have contact with children-even their own natural children who were not subject to any allegations (i.e. a man accused of sexual contact with a 15 year old unrelated girl might be prohibited from living with his 3 year old son or his natural teenage daughter). There would not need to be a court order because the prohibition would be phrased in such a way that if the "suggestion" were not followed the Department would seek an ex parte court order snatching the children and placing them in a foster home. These determinations would be made by a typically young social worker fresh out of social work school and her Department supervisor. The choice for the target of the letter and their family is to obey the Department's directives and kowtow to their every whim or face the near certain prospect of a court order snatching their children until some distant point in the future. It is unfortunate that those charged with second guessing the Department tend to be self selecting for traits similar to social workers ("I just want to protect the children" or "Children don't lie"). "Substantiation" is a status whereby the Department gets to maintain a record of the alleged issue forever instead of having to destroy it within 18 months as they must do otherwise. Substantion suggests that the event(s) actually occured. While not made public, substantiations are shared with people /organizations that have a need to know. For example if you want to become a school bus driver or day care worker the Department will search its database of substantiated offenders. Recently a new term has enetered the Department lexicon-"indication." Indication suggests that the event(s) may have occured but that the Department doesn't have the level of proof necessary to get to "sustantiation." The Department wants, however, to save a record of the encounter so as to bolster their case later should another problem occur. The Department will then offer an "indicated" status which is not supposed to be used for job clearance purposes but which can be used in future investigations. That is the theory-I suspect in practice there is very little distinction between substantiation and indication. Once a letter has been recieved from the Department "substantiating" or "indicating" an individual then the individual has 30 days to appeal. The appeal process at this stage is relatively simple and consists of a letter requesting an appeal. An internal supervisor then reviews the paper documentation of the case and does a rubber stamp approval. A letter is then sent to the individual upholding the original finding. The individual then can appeal to an internal DHHS hearing. This hearing more closely resembles a formal court proceeding with subpoena powers and a formal record of the proceedings, including tape recordings. The Department is represented at the hearing by the Maine Attorney General's office. Although I have not had an opportunity to challenge the provision, children relevant to the proceeding may not be subpoena'd by the defense and any such hearsay statements are typically admissable. A decision is rendered by an employee of the DHHS who is a hearing officer acting as an administrative judge. These hearing officers are typically former caseworkers. After a decision is rendered by the hearing officer, the decision is reviewed by a further supervisor and then either accepted or rejected. Suprisingly I have had some success at this level. A recent case consisted solely of the allegation that my client, a foster grandfather figure, had sexually molested his "grandaughter" based on the statement by the 4 year old that "pop-pop took a rat out of my butt with rat clippers." Based on this nonsensical statement and absolutely no other evidence my client was substantiated through the hearing officer level. As I was preparing to file an action in District court, the head of DHHS rejected the finding and the case ended. The proceedure I have described above is a few years old and I am not aware of any cases that have been tested through the District Court level. Often the clients find themselves in some additional trouble, they give up or they run out of money. After the hearing decision

Comments

[lawdoc]

I'm glad you mentioned this process of substantiation. I had no idea there was a new term, "indication".

Many people who receive notice that they have been "substantiated" do not know what it means, what the consequences are, and what they should do about it. Many just ignore the notice, and lose any ability to appeal. People who appeal have no idea they are walking into a formal hearing with an opposition armed with a trained lawyer and all the resources of state government. Now, with the passage of the Adam Walsh Act, people substantiated for child abuse are going to entered into a national data base. Who knows what will be the consequences of that?