DOJ: News Release

McGrath: Notice, Hearing Requirements Should Have Been Followed

HELENA — In a formal opinion released Thursday, Attorney General Mike McGrath said that the notice and hearing requirements of the Montana Administrative Procedures Act should have been followed prior to the implementation of the Department of Public Health and Human Service’s centralized intake system.

Anaconda-Deer Lodge County Attorney Mike Grayson requested the opinion after the Department of Health created the intake system in response to legislation passed by the 2001 Legislature. Senate Bill 116 granted DPHHS the authority to assess reports of child abuse and neglect, and to determine whether an investigation – or some lesser response – was necessary to respond to the report. The legislation did not, however, provide a method for the assessments, and so DPHHS created the intake system.

The opinion noted that the administrative decision used by DPHHS to establish the intake system “implements, interprets or prescribes law or policy” and so is a “rule” under MAPA. As such, a number of requirements for notice, hearing and submission of views should have been met.

“Rulemaking is not just a meaningless bureaucratic process; rather, the public is entitled to notice and the chance to comment to make sure that the agency has the full benefit of views from the interested public,” McGrath wrote. “These are views that might not percolate to the top within the agency itself.”

In his opinion request, Grayson also asked if a local DPHHS office may lawfully refuse reports of child abuse or neglect. The question arises because Montana’s mandatory child-abuse reporting statute requires certain professionals to report suspected abuse to DPHHS or its “local affiliate.”

The phrase “local affiliate,” however, is a remnant of a time when the responsibilities for reporting were shared between a state agency and a county agency. McGrath’s opinion held that the existing statute should be read to require reporting to DPHHS.

The opinion also concluded, however, that since the intake system was not adopted in accordance with MAPA, it cannot be used to restrict which personnel may receive a report. Until a properly adopted administrative rule is in place, McGrath wrote, professionals may report abuse to local offices or to the centralized intake system.

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