1.6 Grievance, Fair Hearings, and Appeals

AS 44.64.060 Procedure for Hearings

AS 47.06.010 Duties of Department

AS 47.10.098 Grievance (Complaint) Procedure

AS 47 14.010 General Powers of Department Over Juvenile Institutions

2 AAC 64.120 Referral to the Office

2 AAC 64.210 Fast-Track Hearings

7 AAC 54.010 - 7 AAC 54.150 Privacy of Client Records: Child Protection Services.

7 AAC 54.255 - 7 AAC 54.260 Grievance (Complaint) Procedures

7 AAC 54.500 First-level Review

7 AAC 54.510 Evidentiary Hearing

42 U.S.C. 671(a)(12) State Plan for Foster Care and Adoption Assistance (Title IV-E)

42 U.S.C.675(4)(A) Definitions (Title IV-E)

45 CFR 205.10 Hearings

45 CFR 1355.20 Definitions (Title IV-E)

45 CFR 1355.30(p) Other Applicable Regulations (Title IV-E)

Federal Law and Regulations:

1. The State must grant an opportunity for a hearing before the State agency or an evidentiary hearing at the local level with a right of appeal to a State agency hearing to any individual who is receiving services funded under Title IV-B and IV-E of the Social Security Act. The individuals must be advised of their right to a hearing, that they may be represented by an authorized representative and that there be timely notice of the date and time of the hearing.

2. The State must grant an opportunity for a fair hearing before the State agency to any individual whose claim for IV-E adoption benefits is denied or is not acted upon with reasonable promptness. Grounds for a fair hearing include:

   1. relevant facts regarding the child were known by the State agency or child-placing agency and not presented to the adoptive parents prior to the finalization of the adoption;

   2. denial of assistance based upon a means test of the adoptive family;

   3. adoptive family disagrees with the determination by the State that a child is ineligible for adoption assistance;

   4. failure by the State agency to advise potential adoptive parents about the availability of adoption assistance for children in the State foster care system;

   5. decrease in the amount of adoption assistance without the concurrence of the adoptive parents; and

   6. denial of a request for a change in payment level due to a change in the adoptive parents circumstances.

State Law and Regulations:

1. Grievance of Action under AS 47.10.098:

   1. OCS is required to develop, in regulation, a grievance (complaint) procedure for a parent to file a complaint based on:

      1. the application of a department policy or procedure under AS 47.10;

      2. compliance with AS 47.10 or a regulation adopted under AS 47.10; or

      3. an act or failure to act by the department under AS 47.10.

   2. OCS is required to provide to each parent of a child who is under the Jurisdiction of OCS a written copy of the grievance (complaint) procedure.

   3. An individual affected by a decision or action of OCS, including a parent, foster parent, adult family member, a person with a significant relationship with the child involved with OCS (live-in partner, step-parent, or grandparent) or a person participating in provision of services to a child or family may submit a case-specific grievance (complaint).

   4. A foster parent may not grieve the emergency removal of a child. If a foster parent grieves the non-emergency removal of a child from their home, the foster parent may request that the child not be removed until the issuance of a final decision under 7 AAC 54.260. The request will be granted unless a Protective Services (PS) Manager II finds that:

      1. removal is in the best interest of the child;

      2. the child is being returned to the legal parent or guardian;

      3. removal is in response to an allegation of abuse or neglect and the child’s safety is at risk in the foster home; or

      4. removal is ordered by a court.

   5. The grievance (complaint) procedure under this section is not available to:

      1. review or overturn a decision by the department that the person has a substantiated maltreatment finding under AS 47.10 or AS 47.17;

      2. grieve a decision, action or inaction taken by the department if the time that has passed since that decisions, action, or inaction occurred exceeds the shorter of the following periods

         1. six months after the complainant had actual notice of the decision, action or inaction; or

         2. three years, regardless of whether or when the complainant had actual notice of the decision, action, or inaction;

      3. to appeal late payments or to contest foster care rates paid;

      4. to appeal a decision or action taken by the department that is reviewable by the court under AS 47.10;

      5. appeal any federal or state action that is under the jurisdiction of other state or federal agencies;

      6. to appeal a decision regarding civil rights actions covered under the department's civil rights complaint procedures;

      7. to a state employee unless the employee is also a client of the department, a client's parent or guardian, or a service provider for the department;

      8. appeal a licensing action under AS 47.32;

      9. initiate, against personnel, Complaints that are subject to AS 39.25 (State Personnel Act);

      10. address contract services disputes;

      11. to appeal a decision regarding grant programs that may be appealed under 7 AAC 78.310

2. Fair Hearing, Review of Decisions about Foster Care Payment, Adoption Subsidy Payment, or a Guardianship Subsidy Payment.

   1. A foster parent, a prospective adoptive parent or guardian, or an adoptive parent or legal guardian who is not satisfied with the department’s decision to deny, suspend, reduce, change, or terminate a foster care payment, an adoption subsidy payment, or a guardianship subsidy payment may request a first-level review or an evidentiary hearing. The provisions of this section do not apply to licensing-related actions.

3. First-Level Review:

   1. A foster parent, a prospective adoptive parent or guardian, or an adoptive parent or legal guardian who wants to seek a review must request a review no later than the 30 days after the department’s decision. The request may be made by telephone, by electronic mail, by facsimile transmission, or in writing to the department.

   2. At any time during a review, a foster parent, a prospective adoptive parent or guardian, or an adoptive parent or legal guardian may be represented by an attorney or self-represented.

   3. The department will designate an individual, other than the individual who made the decision being reviewed, to conduct the review.

   4. The designee will render a written decision on the first-level review no later than 10 business days after receipt of the request for review, or any request for additional information, whichever is later.

   5. A foster parent, a prospective adoptive parent or guardian, or an adoptive parent or legal guardian who is not satisfied with the department's first-level review decision may request an evidentiary hearing.

   6. If a foster parent, a prospective adoptive parent or guardian, or an adoptive parent or legal guardian does not submit a request for a first-level review, the department's original decision is a final administrative action unless a written request for an evidentiary hearing is submitted.

4. Evidentiary Hearing:

   1. A foster parent, a prospective adoptive parent or guardian, or an adoptive parent or legal guardian may request an evidentiary hearing without seeking a first-level review.

      1. A request must be submitted in writing no later than 30 days after the date of the department's original decision or a decision under a first-level review.

      2. The request must

         1. describe the issue or decision being appealed;

         2. specify the basis upon which the decision is challenged; and

         3. include all information and materials that the individual requests the department to consider in resolving the matter.

   2. At any time during the hearing, the foster parent, prospective adoptive parent or guardian, or adoptive parent or legal guardian may be represented by an attorney or may be self-represented.

   3. Upon receipt of a timely request, the department will request the chief administrative law judge to appoint an administrative law judge employed or retained by the office of administrative hearings to preside over the hearing.

   4. If a foster parent, a prospective adoptive parent or guardian, or an adoptive parent or legal guardian does not submit a request under this section no later than 30 days after a department decision, that decision is the department's final administrative action.