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Montana Administrative Register Notice 37-932 No. 21   11/06/2020    
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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the adoption of New Rules I through IV and the amendment of ARM 37.5.118, 37.47.602, 37.47.610, 37.47.613, and 37.47.614 pertaining to substantiation of abuse and neglect reports and disclosure of information

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND AMENDMENT

 

TO: All Concerned Persons

 

            1. On November 30, 2020, at 9:00 a.m., the Department of Public Health and Human Services will hold a public hearing via remote conferencing to consider the proposed adoption and amendment of the above-stated rules. Because there currently exists a state of emergency in Montana due to the public health crisis caused by the coronavirus, there will be no in-person hearing. Interested parties may access the remote conferencing platform in the following ways: 

            (a) Join Zoom Meeting: https://mt-gov.zoom.us/j/95560158987; meeting ID:  955 6015 8987; or

            (b) Dial by telephone +1 646 558 8656; meeting ID: 955 6015 8987. Find your local number:  https://mt-gov.zoom.us/u/adWuIYS4nP.

 

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 the Department of Public Health and Human Services no later than 5:00 p.m. on November 20, 2020, to advise us of the nature of the accommodation that you need. Please contact Heidi Clark, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.

 

3. The rules as proposed to be adopted provide as follows:

 

            NEW RULE I DECLARATION OF PURPOSE: CHILD ABUSE AND NEGLECT INVESTIGATIONS DETERMINED AS "SUBSTANTIATED" (1)  Section 41-3-205, MCA provides that the case records of investigations into child abuse and neglect are confidential.

            (2) Section 41-3-205, MCA also provides that persons and entities carrying out background, employment-related, or volunteer-related activities on prospective employees or volunteers who may have unsupervised contact with children may request information from the department. The information that may be provided by the department to such a request is limited to confirmation that the department's Protective Services Information System has information that indicates the person may pose a risk to children.

            (3) The purpose of [New Rule I], [New Rule II], [New Rule III], and [New Rule IV] is to provide a process for which information in a child abuse or neglect investigation may be relied upon by the department in determining that a person may pose a risk to children and can be disclosed pursuant to 41-3-205, MCA.

            (4) It is the policy of the department that any report of child abuse or neglect that is determined as "substantiated" may be disclosed to persons or entities requesting background checks on potential employees or volunteers who may have unsupervised access to children.

            (5) Substantiated reports may be relied upon by the department to deny a person a foster care license, day care license, or employment in any field where a person has or may have unsupervised contact with children.

            (6) Nothing in this rule prohibits the department or its personnel from using the facts discovered during an investigation and the associated case record of a child abuse or neglect report investigation, as necessary, to support district court actions under Title 41 of the Montana Code Annotated or an administrative process of the department.

 

AUTH: 2-4-201, 41-3-208, MCA

IMP: 2-4-201, 41-3-102, 41-3-202, 41-3-205, MCA

 

            NEW RULE II WHEN THE RESULTS OF AN INVESTIGATION OF REPORTED CHILD ABUSE AND NEGLECT MAY BE DISCLOSED AS TO AN INDIVIDUAL THAT MAY POSE A RISK TO CHILDREN (1) After any investigation of a reported child abuse or neglect has been completed and the safety assessment set forth in 41-3-202, MCA is completed, the investigating worker and the local supervisor must determine how to list the report and investigation in the Protective Information System provided by ARM 37.47.613.

            (2) The results of the investigation must be listed in the Protective Information System as either unsubstantiated, founded, or substantiated as defined in ARM 37.47.602.

            (3) In order for an investigation to be determined and listed as substantiated against the subject of the report, the investigating worker and the local supervisor must determine that the preponderance of the evidence supports a finding that:

            (a) the reported abuse or neglect occurred;

            (b) the subject was the perpetrator of the abuse or neglect; and

            (c) the case file documents sufficient evidence under the totality of the circumstances to find that the subject may pose a risk to children.

            (4) The factors considered in determining whether a subject in a child abuse or neglect report may pose a danger to children include but are not limited to:

            (a) the nature of the substantiated abuse or neglect;

            (b) any prior or subsequent child abuse or neglect reports or investigations involving the perpetrator;

            (c) any prior or subsequent Youth in Need of Care adjudications in District Court where the perpetrator was determined as an abuser;

            (d) any prior or subsequent criminal convictions for crimes against children; and

            (e) the degree to which a child was impacted by any prior or subsequent reported abuse or neglect, or any prior or subsequent criminal convictions.

 

AUTH: 2-4-201, 41-3-208, MCA

IMP: 2-4-201, 41-3-102, 41-3-202, 41-3-205, MCA

 

            NEW RULE III EFFECT OF A DEPARTMENT DETERMINATION THAT AN INVESTIGATION OF CHILD ABUSE AND NEGLECT IS "SUBSTANTIATED" (1) If after an investigation, fair hearing, or any appeal thereof, the department has determined that the results of an investigation are "substantiated," then the department may:

            (a) disclose to any person or entity requesting a background check pursuant to 41-3-205, MCA, that the department has information that indicates that a person may pose a risk to children; and

            (b) rely on the information to deny a foster care license pursuant to ARM 37.51.216 or a day care license pursuant to ARM 37.95.176.

 

AUTH: 2-4-201, 41-3-208, MCA

IMP: 2-4-201, 41-3-102, 41-3-202, 41-3-205, MCA

 

            NEW RULE IV CHILD ABUSE AND NEGLECT REPORTS DETERMINED AS SUBSTANTIATED PRIOR TO JANUARY 1, 2021 (1)  Any child abuse or neglect report or investigation that was determined by the department as substantiated prior to January 1, 2021, may be disclosed to the appropriate persons or entities pursuant to 41-3-205, MCA.

            (2) No hearing is available for child abuse or neglect reports that are not determined as substantiated.

 

AUTH: 2-4-201, 41-3-208, MCA

IMP: 2-4-201, 41-3-102, 41-3-202, 41-3-205, MCA

 

4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            37.5.118 DETERMINATIONS OF REPORTS OF CHILD ABUSE, OR NEGLECT, AND EXPLOITATION: APPLICABLE HEARING PROCEDURES

            (1) remains the same.

            (2) No hearing is available for child abuse or neglect reports that are not determined as unfounded, unsubstantiated, or founded substantiated.

 

AUTH: 2-4-201, 41-3-208, MCA

IMP: 2-4-201, 2-4-612, 41-3-203, 41-3-204, MCA

 

            37.47.602 CHILD PROTECTIVE SERVICES: DEFINITIONS For purposes of this subchapter, the following definitions apply:

            (1) through (6) remain the same.

            (7) "Founded report" means that, after an investigation, the investigating worker has determined that there is probable cause to believe that an the department has determined by a preponderance of the evidence that the reported act of child abuse or neglect occurred.

            (8) and (9) remain the same.

            (10) "Substantiated report" means that, after an investigation, the investigating worker department has determined by a preponderance of the evidence that the reported act of child abuse, or neglect, or exploitation occurred, and that the perpetrator of the abuse, neglect, or exploitation may pose a danger to children that the subject of the report may be disclosed to the appropriate entities as a person that may pose a danger to children.

            (11) "Unsubstantiated" means that, after an investigation, the department could not determine by the preponderance of the evidence that the reported abuse or neglect occurred.

 

AUTH: 2-4-201, 41-3-208, 52-3-205, MCA

IMP: 2-4-201, 41-3-102, 41-3-202, 41-3-205, 52-3-205, MCA

 

            37.47.610 CHILD PROTECTIVE SERVICES: RIGHT TO FAIR HEARING TO CONTEST SUBSTANTIATED REPORTS (1) The subject of a child abuse or neglect report that is determined by the department to be as substantiated pursuant to [New Rule II] may request a fair hearing.

            (2) remains the same.

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

            (a) The informal review is limited to the records and documentation relevant to the case, in the case record and any written material provided by the subject. The informal review is not subject to the provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, MCA.

            (b) If, after the informal review, the department determines that the results of the investigation are not substantiated report is in error, pursuant to [New Rule II], the department will amend the finding to reflect that the report is unfounded, 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 report is not in error, pursuant to [New Rule II], the department will notify the department's Office of Fair Hearings so that a fair hearing date and time may be scheduled.

            (4) remains the same.

            (5) Hearsay statements of the child victim are admissible as evidence in the fair hearing on a substantiated 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) through (7) remain the same.

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

 

AUTH: 2-4-201, 41-3-208, MCA

IMP: 2-4-201, 2-4-612, 41-3-203, 41-3-204, MCA

 

            37.47.613 CHILD PROTECTIVE SERVICES: LISTING OF DETERMINATION IN THE PROTECTION PROTECTIVE INFORMATION SYSTEM 

            (1) When the department substantiates determines that a report of child abuse, or neglect or exploitation is substantiated pursuant to [New Rule II], the department will initially list its determination in its protective services information system provided in ARM 37.47.315 that the report's final determination is pending. The report will be pending for a period of 30 days from the date of the department's initial notice of its substantiation determination to the subject.

            (2) If, after receiving the initial notice of the department's substantiation determination that the results of any child abuse and neglect investigation are substantiated, the subject does not request a fair hearing within the 30-day time period required by ARM 37.47.610(2), the department will list the report in its protective services information system as being substantiated.

            (3) remains the same.

            (4) Reports of child abuse or neglect that are determined to be unfounded or unsubstantiated will be listed in the department's protective services information system described in ARM 37.47.315, subject to the confidentiality provisions of ARM 37.47.614 until purged in accordance with 41-3-202, MCA for a period of three years from the date of the report, unless the report is associated with a prior or subsequent report that is substantiated.

            (5) Reports of child abuse or neglect that are determined to be founded will be listed in the department's protective services information system described in ARM 37.47.315 for a period of three years from the date of the report, subject to the confidentiality provisions of ARM 37.47.614 and the retention requirements contained in (8).

            (6) remains the same but is renumbered (5).

            (7) Child abuse or neglect reports that are received by the department but are not investigated will be listed in the department's protective services information system described in ARM 37.47.315 for informational purposes for a period of one year from the date of the report.

            (8) Informational and founded reports that are associated with a prior or subsequent child abuse or neglect report that is investigated and determined as unsubstantiated or substantiated will be retained in the department's protective services information system described in ARM 37.47.315 for the applicable time period for the associated report.

 

AUTH: 2-4-201, 41-3-208, MCA

IMP: 2-4-201, 41-3-202, 41-3-204, MCA

 

            37.47.614 USE OF DETERMINATIONS IN CHILD ABUSE OR NEGLECT REPORT INVESTIGATIONS (1)  Findings, determinations, and associated case records on child abuse or neglect reports that are determined as unfounded, unsubstantiated, or founded are considered detrimental to the subject of the report and cannot be disclosed to any person other than the subject of the report the following persons without either a valid court order or a signed release by the subject of the report:

            (i) a parent, grandparent, aunt, uncle, brother, sister, or guardian;

 (ii)  foster and adoptive parents who are or may be providing care for a child.

            (2) Child abuse or neglect reports that are determined to be unfounded, unsubstantiated, or founded cannot be the sole basis solely relied upon by the department to deny a person a license to provide foster care, kinship care, or to be employed in a capacity where they have unsupervised access to children.

(3) Findings, determinations, and associated case records on child abuse or neglect reports that are determined to be substantiated are confidential, but may be disclosed pursuant to 41-3-205, MCA, and [New Rule II].

(4) remains the same.

(5) Nothing in this rule prohibits the department or its personnel from using the facts discovered during an investigation and the associated case record of a child abuse or neglect report investigation, as necessary, to support district court actions under Title 41 of the Montana Code Annotated or the department's an administrative process of the department.

            (6)  All disclosures of information on findings, determinations, and associated case records on child abuse or neglect reports are subject to the specific restrictions provided in 41-3-205, MCA.

 

AUTH: 41-3-205, 41-3-304, MCA

IMP: 41-3-205, 41-3-304, MCA

 

            5. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) is proposing to adopt New Rules I through IV and make amendments to ARM 37.5.118, 37.47.602, 37.47.610, 37.47.613, and 37.47.614 pertaining to substantiation of abuse and neglect reports and disclosure of confidential information.

 

The department proposes these new rules and changes to reflect statute changes made during the 2019 legislature in House Bill 502 which deleted the statutory definition of determinations and replaced them with the safety assessment model. Even though the department no longer relies on definitions in conducting safety assessment, the department does use definitions in its administrative process of determining which investigations will be reported to prospective employers and licensing agencies, including the department's own licensing for foster care, adoptive homes, and day care licensing.

 

Proposed New Rules I through IV are proposed to provide standards for when the department will release information about persons who have been investigated by the department for child abuse and neglect. The new rules are written to conform with the narrow exception to 41-3-205, MCA, that allows the department to release information to prospective employers about persons who may pose a danger to children.

 

New Rule I is proposed in order to set forth the basic standards and purpose of New Rule II, New Rule III, and New Rule IV for the use of child abuse and neglect determinations in disclosing whether a person may pose a risk to children.

 

New Rule II is proposed in order to set forth the process and standards to determine that a report is substantiated and can be disclosed to employers and volunteer organizations pursuant to 41-3-205, MCA.

 

New Rule III is proposed in order to grant the department the authority to disclose the information on a substantiated report of child abuse and neglect pursuant to 41-3-205, MCA.

 

New Rule IV is proposed in order to clarify that reports that were substantiated prior to the effective date of these rules may also be disclosed pursuant to 41-3-205, MCA.

 

Proposed changes to ARM 37.5.118 are necessary to clarify what determinations are afforded the opportunity for a fair hearing. The term "unfounded" was removed from the statute and will no longer be used in the administrative process.

 

Proposed changes to ARM 37.47.602 are necessary to amend the definitions of "founded" and "substantiated" in order to reflect the department's administrative process of determining when to disclose investigations of persons that may pose a danger to children pursuant to 41-3-205, MCA.

 

Proposed changes to ARM 37.47.610 are necessary to clarify the right to a fair hearing by referencing New Rule II.

 

Proposed changes to ARM 37.47.613 are necessary to clarify how reports will be listed in the Protective Information System.

 

Proposed changes to ARM 37.47.614 are necessary to clarify that information related to investigations that are determined as unfounded, unsubstantiated and founded reports may be disclosed to law enforcement and other state agencies as applicable under 41-3-205, MCA.

 

Fiscal Impact

 

The department does not believe that the proposed adoptions and amendments will have any fiscal impact.

 

The department intends for the adoption and amendment of these rules to be effective January 1, 2021.

 

            6. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Heidi Clark, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., December 4, 2020.

 

7. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

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 6 above or may be made by completing a request form at any rules hearing held by the department.

 

9. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was notified by phone on October 27, 2020.

 

10. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption and amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

 

/s/ Mark Prichard                                          /s/ Sheila Hogan                                         

Mark Prichard                                               Sheila Hogan, Director

Rule Reviewer                                              Public Health and Human Services

 

 

Certified to the Secretary of State October 27, 2020.

 


 

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