Section 149-2-8 - SUBSTANTIATION REGISTRY1. Applicability Any individual who cares for, supports or provides services to an Incapacitated or Dependent Adult (whether on a full, intermittent, or occasional basis) and is found Substantiated by APS and knew of the adult's dependence or incapacity is subject to the substantiation process described herein. An individual who cares for, supports, or provides services to an Incapacitated or Dependent Adult is deemed to have knowledge of the adult's dependency or incapacity; proof of actual knowledge of the individual's Incapacitated or Dependent status shall not be required.
2. Notice and Appeal Rights A. Written Notice 1. When APS issues a Substantiation against an individual applicable to this section the individual shall be notified in writing of the Substantiation and the potential consequences of a Substantiation.2. A Substantiation notice shall be accompanied by a written notice to the individual of the right to appeal the Substantiation finding to the Division of Administrative Hearings. 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 Rights 1. An individual who is found Substantiated 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.2. An individual who is found Substantiated 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.3. When an individual who is found Substantiated by APS exercises the right of appeal, the hearing on the appeal shall be scheduled as soon as possible in accordance with 10-144 C.M.R. ch. 1. 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.4. Appeal hearings shall be conducted in accordance with the Administrative Hearings Regulations, 10-144 C.M.R. ch. 1.5. The individual who was Abused, Neglected, or Exploited, his or her guardian if applicable, and the Protection and Advocacy Agency, if the individual who was Abused, Neglected, or Exploited has a developmental disability, acquired brain injury, or behavior health diagnosis or a physical disability, shall receive notice of the hearing and may request the status of an intervenor at the hearing.6. A Substantiation will not be reported out to any State or national registry until the individual found Substantiated 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 a Provider who employs the individual, a Provider who has stated to APS it is considering employing 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.7. 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. Discovery 1. 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.2. 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 standards set forth in Section 1.08(2)(C)(1).3. The Department shall not present any documentary evidence in an appeal hearing without first disclosing such evidence to the appellant prior to the hearing. D. Issues on Appeal 1. A Substantiation Appeal hearing is limited to review of the Substantiation of the individual. If the Substantiation for Abuse relates to a continuing pattern of behavior that cumulatively causes Abuse, Neglect, or Exploitation to the Incapacitated or Dependent Adult, the hearing may include a review of all relevant investigation reports and findings.E. Final Agency Action1. 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 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);2. 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 and no protective measures will be stayed pending an appeal;3. 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; and4. A final decision on the administrative appeal constitutes final agency action for purposes of 5 M.R.S. § 8002(4) and may be appealed to the Superior Court in accordance with 5 M.R.S. § 11001, et seq. and Rule 80C of the Maine Civil Rules of Procedure.F. Process Following Appeal or Appeal Timeframe 1. Substantiation Upheld or No Appeal Filed i. An individual who is unsuccessful in reversing a Substantiation will be listed on the APS Substantiation Registry.ii. An individual who does not exercise the right of appeal within thirty (30) days after written notice will be listed on the APS Substantiation Registry.iii. The APS Substantiation Registry contains the following information for each individual listed: a. Identity verification documentation, including full name; maiden name and previously held names, if known; date of birth; and last known mailing address.b. Substantiation findings, including type of maltreatment found, date of substantiation, and appeal date and final decision date, if applicable.2. Remedies Upon Substantiation Reversal i. 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.ii. In cases where an individual prevails because his or her conduct did not meet the conduct definition of a Substantiation but there is a finding that the conduct meets the definition of minor conduct, the findings of the Department may be considered for purposes of substantiating for a continuing pattern of behavior that cumulatively causes Abuse.iii. If an individual is successful in reversing a 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 Substantiation.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.vi. 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.3. Provider Response i. The fact that a Substantiation has been issued by the Department, is pending appeal, or has sustained on appeal shall not serve as the sole basis for any adverse employment decisions made by a Provider. Adverse employment decisions must be made independent of the Substantiation process and in accordance with any applicable provisions of the MaineCare Benefits Manual or other State law.ii. The existence of a Report of Abuse, Neglect, or Exploitation, which does not result in a Substantiation, shall not serve as the basis of an adverse employment action.G. Determinations Based on Findings from Other Proceedings1. If a court of competent jurisdiction specifically finds that an individual subject to this section has Abused, Neglected, or Exploited an Incapacitated or Dependent Adult, or a court of another state or United States territory makes a similar finding, the Department may record and report the individual as Substantiated for Abuse, Neglect, or Exploitation of an Incapacitated or Dependent Adult.2. If the DHHS Division of Licensing and Certification determines that an individual subject to this section has Abused, Neglected, or Exploited an Incapacitated or Dependent Adult (in accordance with 22 M.R.S. § 1812-G, 1812-J), the Department may also record and report the individual as Substantiated on the APS Substantiation Registry.3. If an agency of another state (including political subdivisions of other states) determines that an individual subject to this section has Abused, Neglected, or Exploited an Incapacitated or Dependent Adult, or makes a similar finding, the Department may record and report the individual as Substantiated, depending on the severity found by the other agency if the person had the opportunity for an administrative hearing on the finding by the other state's agency.4. If an individual is convicted of a crime where the charges arose out of the same conduct or pattern of conduct as that upon which the Department based its finding, then the Department may record and report the individual as having Abused, Neglected, or Exploited an Incapacitated or Dependent Adult.