Section 10.06 - Allowable Grounds for AppealThe 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; or4. 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; ord. 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; or2. 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.