Section 149-1-7 - SUBSTANTIATION1.Applicability: Any individual who cares for, supports, or provides services to an individual with intellectual disability or autism and is found by APS to have Abused, Neglected, or Exploited an individual with intellectual disability or autism is subject to the substantiation process described herein.2.Substantiation Categoriesa.Level I Substantiationi. A Level I Substantiation reflects a finding by a preponderance of the evidence (based on an APS Investigation and final written findings) that an individual Abused, Neglected, or Exploited an individual with intellectual disability or autism by engaging one or more of the following:1. Sexual abuse or sexual exploitation, which means contact or interaction of a sexual nature involving an individual with intellectual disability or autism without the individual's consent or where consent cannot be given by the individual (i.e., incapacity);2. Exploitation involving the illegal or improper use of an individual with intellectual disability or autism's resources for another's profit or advantage;3. Intentionally, knowingly, or recklessly causing physical harm or pain or mental anguish through the infliction of injury, unreasonable confinement, intimidation, or cruel punishment;4. Intentionally, knowingly, or recklessly causing a threat to the health or welfare of an individual with intellectual disability or autism by physical or mental injury or impairment, deprivation of essential needs, or failure to protect from these;5. Intentionally, knowingly, recklessly, or negligently engaging in abuse or neglect that results in serious harm to an individual with intellectual disability or autism;ii. The terms "intentionally", "knowingly", and "recklessly" have the meanings set forth in 17-A M.R.S. §35. The conduct shall not be substantiated if the individual can establish by a preponderance of the evidence that the conduct at issue was the product of an objectively reasonable good faith belief that he or she was acting in the best interests of the individual with intellectual disabilities or autism under all the facts and circumstances.iii. Multiple Level II Substantiations against an individual within a nine (9) month period may result in a Level I Substantiation.iv. A Level I Substantiation triggers an individual's right to due process.b.Level II Substantiationi. A Level II Substantiation reflects a finding by a preponderance of the evidence (based on an APS Investigation and final written findings) that an individual Abused, Neglected, or Exploited an individual with intellectual disability or autism but the acts or omissions do not rise to the level of the categories described in Section 6(2) (a.)(i.)(1)-(5) of this rule.ii. A Level II Substantiation is not reported out to any State or national registry and does not trigger an individual's right to due process.iii. Where an individual receives two (2) Level II Substantiations in a nine (9) month period, APS may issue a Level I Substantiation.3.Notice and Appeal Rightsa.Written Noticei. When APS issues a Level I Substantiationfinding against an individual, the individual shall be notified in writing of the Level I Substantiation and the potential consequences of a Level I Substantiation.ii. A Level I Substantiation notice shall be accompanied by a written notice to the individual of the right to appeal the Substantiation finding to the Department's Administrative Hearings Unit. The written notice shall include a summary of the substantiation findings, information on the appeal process, and information on the right to request an expedited hearing.b.Due Process and Appeal Rightsi. An individual who is found Substantiated - Level 1 by APS may exercise his or her right to appeal by submitting a request to appeal via letter, fax, or email in accordance with the instructions provided in the written notice from the Department.ii. An individual who is found Substantiated - Level 1 by APS may exercise the right of appeal within thirty (30) days after written notice is received. In calculating this 30-day period, the day it is received by the person is not counted. The Department may presume that the notice is received within three (3) days of mailing (not counting the day of mailing), a presumption which may be rebutted by the individual upon credible evidence of actual receipt. An appeal postmarked on day 30 is considered a timely appeal.iii. When an individual who is found Substantiated - Level 1 by APS exercises the right of appeal, the hearing on the appeal shall be scheduled as soon as possible but no later than sixty (60) days after the appeal request is made, unless he or she requests an extension. Where the individual can demonstrate to the Administrative Hearings Unit an immediate and ongoing harm to his or her employment status, the hearing must be given priority and take place as soon as practicable.iv. Appeal hearings shall be conducted in accordance with the Administrative Hearings Regulations, 10-144 C.M.R. ch. 1.v. The individual who was Abused, Neglected, or Exploited, his or her guardian if applicable, and Disability Rights Maine shall receive notice of the hearing and may request the status of an intervenor at the hearing.vi. A Level 1 Substantiation will not be reported out to any State or national registry until the individual found Substantiated - Level 1 has received the due process rights outlined herein and no report will be made to any provider, state agency, or national organization or any other person or entity, that there has been a substantiation, except to the Provider who employs the individual or to any person by court order or as permitted or mandated under the Adult Protective Services Act or provided in this Rule.vii. The mandated and optional disclosure provisions of 22 M.R.S. §§3474, 3478, 3485 are not limited by the exercise of due process described herein.c.Discoveryi. If an individual exercises the right to appeal, the Department shall promptly provide such individual with the report of the Substantiation, and give sufficient notice of the facts and circumstances upon which the Substantiation is based and upon which the hearing will be limited to allow the individual to prepare a defense.ii. The Department retains the right to review the report and remove information that is otherwise confidential under state law so long as the report meets the standard set forth in Section 7(3)(c)(i).iii. The Department shall not present any evidence in an appeal hearing without first disclosing the above-referenced information to the person prior to the hearing.d.Issues on Appeali. A Substantiation Appeal hearing is limited to review of the Level I Substantiation of the individual. If the Level 1 Substantiation is not upheld, the Administrative Hearing Officer may make a subsidiary finding on whether the alleged conduct constitutes a Level II Substantiation. a. A finding that the alleged conduct did not constitute a Level II Substantiation is final and the facts underlying the conduct may not be used in determining "repeated" Level II findings.ii. A finding on appeal that the individual's conduct warrants a Level II Substantiation is not final agency action and is not appealable under M..R.Civ. P. 80C, unless the finding is made in an appeal of a Substantiation of repeated Level II findings resulting in a Level I Substantiation.e.Final Agency Actioni. The Department may withdraw a Substantiation prior to hearing if it finds, upon review, that the facts alleged, even if true, do not meet the legal standards for Level I Substantiation. A decision to withdraw the Substantiation does not alter or affect any protective measures recommended in the investigative report (other than those recommending disciplinary action);ii. The decision on appeal may affirm, modify or reverse the Substantiation. The appeal or the subsequent decision does not alter or affect any protective measures recommended in the investigative report (other than those recommending disciplinary action) and no protective measures will be stayed pending an appeal;iii. The decision of the hearing officer in a fair hearing shall be issued within forty-five (45) days of the completion of the hearing process. The Commissioner reserves final decision-making authority unless the Commissioner indicates otherwise in writing. The parties shall have twenty (20) days to submit any exceptions or objections to any Recommended Decision by the hearing officer, and then the Commissioner will have thirty (30) days to issue a final decision; andiv. A final decision from this process, including subsidiary findings as to Level II findings as provided in this Section, shall be final agency action for purposes of 5 M.R.S.A. §8002(4), and may be appealed to the Superior Court in accordance with 5 M.R.S.A. §11001, et seq. and Rule 80C of the Maine Civil Rules of Procedure.v. All persons who received notice of the Substantiation shall be promptly contacted by the Department if the Substantiation is reversed by the Commissioner or by Court order. The contact may be oral or in writing. Persons contacted shall be informed of the reversal of the Substantiation and be directed to remove any record of the substantiation from their files.f.Remediesi. An individual who is successful in reversing a Substantiation shall be treated by the Department for all purposes as if no Substantiation or protective recommendation had occurred, except as noted in f(ii) below.ii. In cases where an individual prevails because his or her conduct did not meet the conduct definition of a Level I Substantiation but there is a finding that the conduct meets the definition of a Level II Substantiation, the findings of the Department may be considered for purposes of substantiating for conduct that constitutes repeated Level II Substantiations in Section 7(2)(b)(3).iii. If an individual is successful in reversing a Level I Substantiation, the record of Substantiation of such a person shall be immediately removed by the Department from any state or national registry and the Substantiation that was reversed shall not be disclosed outside the Department to any person or entity without a court order. A record of the reversed Substantiation may be maintained by the Department for internal purposes only, provided that the individual is not in any manner prejudiced by the retention of such records.iv. The individual will be notified in writing of the remedy if successful in reversing a Level I Substantiation.v. The remedies provided for in this subsection shall also apply to the individual who exercises a right to appeal when the Department chooses not to challenge the appeal.g.Provider Responsei. The fact that a Substantiation has been issued by the Department, is pending appeal, or has sustained on appeal shall not serve as the basis for any adverse employment decisions made by a Provider. Adverse employment decisions must be made independent of the Substantiation process.ii. The existence of a Report of Abuse, Neglect, or Exploitation, which does not result in a Level I Substantiation, shall not serve as the basis of an adverse employment action.