Fair Hearing

You need a skilled advocate to present your case to obtain a reversal decision.

Fair Hearing:

The Fair Hearing process is designed to give anyone who has been “supported” of abuse or neglect a chance to dispute the determination.

In order to dispute the decision you must file with the Fair Hearing office within thirty days of the receipt of the Departments determination. According to the CMR10.10 2(b) you are to have your schedule hearing within ninety days.

The State of Massachusetts has under funded this position for many years currently resulting in a back log of cases some three years and older.

Currently if your position or employment is jeopardized due to the determination, the Fair Hearing Office will attempt to schedule your hearing within one year.

If you fail to compete the required steps you many no longer be eligible for a Fair Hearing.

If you fail to not appeal a supported decision, your lack of action will result in your name being placed on the Family-Net computer system. Once placed on this system it can be used against you for employment and attendance to school functions with your children.

Many individuals currently are finding themselves receiving a Discretionary Disqualification from their hiring authority once a mandatory DCF  background check  is competed which results in a neglect or abuse determination being identified.

In addition though you might think the issue trivial, should another incident occur which brings DCF back into your life, you will have an established history of abuse or neglect which could result in your child(ren) being taken by DCF.

If you plan on defending yourself, the Fair Hearing in the Self Help section is invaluable to you as a resource.

The self help center walks you through theFair Hearing process and gives you a better understanding of how to file, complete with pre-written letters, so all you have to do is fill in your particular information.

Failure to obtain a FairHearing within ninety days may be brought to anyMassachusetts Superior court. The court can order the Department of Children and Families to provide you the Fair Hearing as allowed by the 110 CMR’s.

Children First Advocacy also provides representation services in the Fair Hearing process.

We have been successful in obtaining administrative reversals by the department based on a appeal filed prior to the scheduled Fair Hearing. 

We have also been successful in reversal decisions for our clients upon the completion of the Fair Hearing based on the production of evidence and reaching the standard for a reversal decision.

10.03: Hearings Officers

The Department shall employone or more impartial hearings officers, whose sole duty shall be to conduct Pair Hearings statewide. Noofficer shall hear, or involve themselves in anyway, in any matter in which they have, or have had,any direct or indirect interest, personalinvolvement or bias. Said officer shall attest tothis impartiality in their written decision.

In the event that theassigned Fair Hearing Officer is unable to hear thematter due to a lack of impartiality, the officershall notify the General Counsel, in writing, thatthey must recuse themselves from the matter. TheGeneral Counsel shall appoint another officer tohear the case.

The Hearing Office, as defined in 110 CMR 10.02, shall be under the direction of the Department’s General Counsel. Fair Hearing Officers employed by the Department shall have, at a minimum, two years of direct service experience as well as legal training and/or experience.

In addition, each Fair Hearing Officer shall receive the following hours of in-service training:

40 hours of pre-service training before they are eligible to conduct Fair Hearings, and, on an annual basis, shall receive 25 hours of training in the following areas, includingbut not limited to: legal/administrative,trauma/abuse, health, poverty, and conflict resolution, and conflict of interest.

10.08:Intiating a Fair Hearing

  • To begin the FairHearing process an aggrieved party shall file awritten request for a Fair Hearing with the Hearing Office of the Department within 30 calendar days from the decision complained of. Use of the form provided by the Department’s Hearing Office is encouraged. but a request which contains the following information is sufficient: the name, address, and telephone number of the aggrieved party, the time the alleged action occurred, the name and address of the office which made the decision being appealed. The decision being appealed, and a request for review of the decision.The aggrieved party must provide a copy of the request to the Area Director of the office where the challenged decision was made.
  • The Area Director of the office which made the decision shall have 20 calendar days, from receipt of a request for a Fair Hearing, or from the completion of an assessment following an initial support decision, whichever is later, to review the request for a Fair Hearing and the decision upon which it is based. The Area Director may hold a meeting with the aggrieved party prior to the Fair Hearing in order to resolve disputes and to clarify issues, with the goal of reaching an agreement which would dispose of the need for, or limit the issues to be resolved at the Fair Hearing. The Area Director shall have the authority to reverse the underlying decision that isthe basis for the Fair Hearing request, thereby nullifying the need for a Fair Hearing. If the Area Director decides not to reverse the decision and the decision involves a removal. mandatory referral to the District Attorney, or a foster care review goal determination, the Area Director shall refer the decision to the Clinical Review Team within the first ten calendar days of the review period. The Area Director shall also have the discretion to refer any other. challenged decisions to the Clinical Review Team. Such a referral must be made within ten calendar days from receipt of a request for a Fair Hearing or from the completion of an assessment following an initial support decision,whichever is later. The Area Director will be amember of the Clinical Review Team. In considering adetermination to identify a person believed to beresponsible for the abuse or neglect, the ClinicalReview Team will consider the underlying supportdecision. The Clinical Review Team shall, within ten calendar days, report its findings in writing to theArea Director. The Clinical Review Team shall haveauthority to remand the action to the area officefor the purposes of gathering further information,or to support or reverse the decision, If the Clinical Review Team recommends that a decision bereversed over the objection of the Area Director,the matter will be resolved by the DeputyCommissioner of Field Operations within the 20 calendar day review period.
  • The Area Director shall notify the Fair Hearing Office of the determination to defend the challenged decision, to reverse the decision or to remand to the area office for additional information. If the determination is to reverse or remand the decision, the Area Director shall notify the aggrieved party of the determination.
  • An Area Director, a member of the Clinical Review Team or a Regional Director shall not review any matter in which she or he has or has had any direct or indirect personal interest, involvement, or bias. In the event that the Area Director is unable to review the matter due to the reasons stated above, the Regional Director shallreview the matter. In the event that the RegionalDirector is unable to review the matter due to thereasons stated above, the Deputy Commissioner forField Operations shall review the matter.
  • The Area Director of the office which made the initial decision may reviewthe decision and reverse it even if the decision hasnot been challenged by the client, If the reversal involves a support decision, any determination thata specific person(s) was believed to be responsiblefor the abuse or neglect that arises from the same incident shall also be reversed and the Department’s records shall be adjusted to reflect that there is not reasonable cause to believe that the person was responsible for the abuse or neglect.
  • All decisions which arereversed as a result of actions taken by an AreaDirector or by the Clinical Review Team pursuant to110 CMR 10.08(2) shall be documented by the Area Office which vacated the underlying decision- Aquarterly report shall be forwarded by each Area Office to the Commissioner and shall contain the following information: the subject-matter of thehearing request, the Area Director’s reasons forreversing the underlying decision and the resolutionof the complaint.

10.09:Continuation of Service or Placement Pending Appeal

  1. (1)The filing of a requestfor a Fair Hearing shall not stay or otherwise affect the implementation of the challengeddecision, except as provided herein.
  2. (2)The filing of a requestfor a Fair Hearing regarding a decision to denyservices or to reduce the quantity of services shallstay the effect of the challenged decision untilafter the final decision is made pursuant to 110 CMR10.00. provided further that the aggrieved partycontinues to pay the pre-established fee, if any forthe services in question.
  3. (3)The filing of a requestfor a Fair Hearing regarding a decision to remove a child from a foster or adoptive placement shall staythe effect of the challenged decision until afterthe final decision is made pursuant to 110 CMR10.00. A decision to remove a child from a foster or pre-adoptive placement on an immediate basis becausethe Area or Regional Director has determined thatthe child’s physical, mental, or emotionalwell-being would be endangered by leaving the childin the foster home, as provided by 110 CMR 7.116.shall not be stayed by the filing of a request for a Fair Hearing regarding that decision.

10.10:Scheduling

  1. Notification. Within ten calendar days of receipt of a request for a Fair Hearing, the Hearing Office shall send notificationof the scheduled hearing date to the aggrieved party and to the appropriate area office of the Department.
  2. Time Requirements forHearing. The hearing shall be scheduled to be heldwithin 90 calendar days from receipt of a requestfor a Fair Hearing.
  3. Content of Notice of Scheduled Hearing. The notice of scheduled hearing shall inform the aggrieved party:
    • (a) of the date, time and location of the hearing;
    • (b) that the aggrieved party may examine portions of their file which relate or pertain to the issues raised by the claimed appeal prior to or during the appeal, subject to anyconfidentiality requirements;
    • (c) that the aggrieved party may bring witnesses and an authorizedrepresentative;
    • (d) that in accordance with110 CMR 10.3 the Department may issue subpoenas forwitnesses upon request made at least ten calendardays in advance of the scheduled hearing;
    • (e) that a translator or interpreter and reasonable accommodations for handicapped persons will be provided if necessary.

that the aggrieved partymay request a rescheduling of the Fair Hearing.

10.11:Representation

(I)An aggrieved party may appear on his or her own behalf and represent themselves, or may, if they choose, be accompanied,represented and advised by any authorized representative. Any child may be represented by anauthorized representative which may include anattorney assigned to represent the child.

Children First Advocacy and or their employees or sub contractors do not provide legal advice in any situation. Children First Advocacy provides services associated with procedural actions concerning allegations child abuse or neglect and educational issues facing children and families in Massachusetts.