Section 1240-07-03-.06 - NOTICE TO AND ADMINISTRATIVE HEARINGS FOR INDICATED PERPETRATORS(1) Notice to paid caregivers who have been indicated as perpetrators following the investigation of abuse, neglect or exploitation shall contain the following:(a) The paid caregiver has been indicated as the perpetrator of abuse, neglect, or exploitation of an adult in a report investigated by the Department and a summary of the basis for the indication;(b) The indicated perpetrator may, within ten (10) business days of the date of the notice, request an administrative hearing by submitting a written request for an administrative hearing to the Tennessee Department of Human Services, Appeals and Hearings Division;(c) Subject to the requirements of the Uniform Administrative Procedures Act, Tennessee Code Annotated, §§ 4-5-301 et seq., a decision resulting from the administrative hearing that upholds the Department's indication of the individual as a perpetrator will result in the placement of the indicated perpetrator's name on the Vulnerable Persons Registry, and that the Department may also, as a result of such decision, release the fact that the paid caregiver has been found to be a perpetrator of abuse, neglect or exploitation of an adult, and, as a result, such finding, placement of the individual's name on the Vulnerable Persons Registry and release of information regarding the finding, the paid caregiver's ability to provide care, supervision, treatment or other related services to vulnerable persons as a paid caregiver may be adversely impacted; and(d) That failure to submit a written request for an administrative hearing within ten (10) business days, absent a showing of good cause, shall be a waiver of the right to the administrative due process proceeding and shall cause the indication of the paid caregiver as a perpetrator to become final and qualified for disclosure for any purposes necessary to protect vulnerable persons.(2) Except as specified in paragraph (10) below and Rules 1240-07-03-.03(3) and 1240-07-03-.05, an administrative hearing shall be available to all paid caregivers who have been indicated by the Department as a perpetrator of abuse, neglect or exploitation of an adult prior to:(a) The release of any information to the Department of Health for purposes of placement of the name of the perpetrator on the Vulnerable Persons Registry; or(b) The release by the Department of any information as to the perpetrator's indicated status to any organization(s) or individual(s) with whom the indicated perpetrator is associated as a paid caregiver.(3) To initiate a timely appeal of the notice of indication as a perpetrator of abuse, neglect, or exploitation, an indicated perpetrator shall submit a written request for an administrative hearing to the Tennessee Department of Human Services, Appeals and Hearings Division, within ten (10) business days of the date of the notice from the Department notifying the alleged perpetrator of the indication.(4) If the indicated perpetrator timely requests a hearing, the Department shall schedule a hearing and give the indicated perpetrator adequate notice of the hearing, as provided by Rule 1240-05-04-.01(2)(h).(5) An indicated perpetrator who fails to timely request a hearing may still be granted a hearing upon a showing of good cause, which shall be limited to:(a) Proof by the indicated perpetrator of failure to receive the notice required by paragraph (1) above;(b) Severe illness of the perpetrator or severe illness or death of a close family member that prevented the indicated perpetrator from timely requesting a hearing; or(c) Some other circumstance that clearly prevented the indicated perpetrator from making a timely request for a hearing.(6) If the indicated perpetrator fails to request a hearing, or fails to show good cause pursuant to paragraph (5) above, the indicated perpetrator's right to a hearing is waived. The Department's indication of the person as a perpetrator of abuse, neglect or exploitation shall then be available for dissemination for purposes consistent with this Chapter.(7) Stay of the Administrative Process.(a) The Department may stay all administrative proceedings under these rules if, prior to entry of a final order by the Department: 1. The indicated perpetrator has been arrested or indicted for, or otherwise charged with, any criminal offense derived from the same allegations that led to the indication by the Department of abuse, neglect or exploitation by the alleged perpetrator; or2. The indicated perpetrator is the subject of other administrative or civil judicial proceedings that are derived from the same allegations that led to the indication of abuse, neglect or exploitation by the Department in which a determination is to be made about whether the indicated perpetrator abused, neglected or exploited the adult who was the subject of the report to the Department.(b) The stay, if entered, shall remain in effect until final resolution (including appeals) of the other judicial or administrative proceedings, unless the hearing officer determines, upon motion of a party to the case, that the proceeding should continue, or the stay is otherwise lifted pursuant to subparagraph (d).(c) Upon issuance of the stay, the Department shall notify the indicated perpetrator of the following: 1. That the administrative process has been stayed pending the final outcome of judicial or other administrative proceedings concerning allegations of abuse, neglect, or exploitation of an adult involving the indicated perpetrator;2. That the administrative process will be reinstated at the point it was stayed only if the indicated perpetrator requests reinstatement in writing to the Department's Appeals and Hearings Division within thirty (30) days of the entry of a final order by the court or administrative tribunal or a verdict or other order by a criminal court which has adjudicated the same allegation that led to the indication of abuse, neglect or exploitation by the Department, subject to the limitations of subparagraph (g) and paragraph (10) below;3. That, if the indicated perpetrator fails to timely make such a written request, he or she shall waive his or her rights to an administrative hearing in regard to the report, and the indication of the individual as a perpetrator shall be disseminated as otherwise permitted pursuant to this Chapter.(d) Lifting of Stay on Motion of the Parties. If notification pursuant to subparagraph (c) is provided, and the indicated perpetrator has previously timely appealed the notice of indication, then, notwithstanding any other rule of the Department to the contrary, the indicated perpetrator or the Department may move that the administrative proceedings adjudicating the issue of abuse, neglect or exploitation of an adult by the indicated perpetrator be set for hearing, and the hearing officer may lift such stay and proceed with the determination of the issue of whether the indicated perpetrator committed abuse, neglect, or exploitation of a adult.
(e) Release of Information During Stay. During the stay, other than to disclose that the alleged perpetrator has pending administrative or judicial proceedings to adjudicate the allegations of abuse, neglect or exploitation of a adult, and except as provided pursuant to 1240-07-03-.03(3), or, unless the circumstances of subparagraph (f) exist, no information regarding the status of the indication will be released by the Department.
(f) Emergency Release of Information During Stay and Notice of Emergency Release. If, during the stay, the Department's staff determine that the indicated perpetrator poses an immediate threat to the health, safety or welfare of a vulnerable person to whom the indicated perpetrator has access, then, pursuant to 1240-07-03-.05, the Department will notify the indicated individual of such determination and any organization(s) or individual(s) with whom the individual is associated as a paid caregiver.
(g) Conclusion or Reinstatement of the Administrative Process. 1. If the same or similar evidence on which the paid caregiver was indicated by the Department as a perpetrator of abuse, neglect, or exploitation of an adult results in a criminal conviction or guilty or no contest plea for an offense against a adult, or, if the indicated perpetrator is otherwise adjudicated by a preponderance of the evidence in a civil or administrative proceeding as having perpetrated abuse, neglect or exploitation against the adult who was the subject of the report to the Department, then, following resolution of any appeals of such conviction, plea, and/or adjudication, will be conclusive evidence that the individual is the perpetrator indicated in the report. In this event, the individual will no longer have a right to a hearing under these rules with respect to that particular report. The administrative process will not be reinstated, and the Department may release information about the perpetrator as permitted under these rules.2. If the other proceedings do not result in the conviction or finding specified in part 1 above, then, upon request of the individual in writing within thirty (30) days of the entry of a final order by the court or other administrative tribunal, or entry of a verdict by a criminal court, the administrative process will be reinstated at the point at which it was stayed.3. If the indicated perpetrator fails to make the written request specified in part 2 above within thirty (30) days from entry of a final order in the other proceedings (including appeals), the indicated perpetrator shall waive his or her rights to an administrative hearing in regard to the report, and the indication of the individual as a perpetrator shall become final and disseminated as otherwise permitted pursuant to this Chapter.(8) Hearing Process. (a) The hearing shall be conducted by a hearing officer in the Appeals and Hearings Division of the Department of Human Services in accordance with the provisions of the Uniform Administrative Procedures Act, T.C.A. §§ 4-5-301 et seq., this Chapter and Chapter 1240-05 of the rules of the Department of Human Services.(b) The only issue for the hearing officer to determine shall be whether the preponderance of the evidence, in light of the entire hearing record, proves that the indicated perpetrator committed abuse, neglect, or exploitation of an adult.(c) The hearing shall be held and a final order entered within ninety (90) days of the receipt of the request for an administrative hearing, unless the administrative process is stayed pursuant to Rule 1240-07-03-.06(7).(9) Review of the Department's decision is available as provided in the Uniform Administrative Procedures Act, T.C.A. §§ 4-5-301 et seq.(10) Nothing in this Chapter shall be construed to require the expunction of any information from internal case records maintained by the Department based upon any finding contrary to the Department's indication of a person as a perpetrator of abuse, neglect or exploitation.Tenn. Comp. R. & Regs. 1240-07-03-.06
Chapter 1240-07-03 has been assigned a new control number, removed, and renumbered to Chapter 0250-07-03 filed and effective March 25, 1999. Original rule filed November 20, 2010; effective December 19, 2010.Authority: T.C.A. §§ 4-5-202;4-5-301 et seq.; 71-6-101 et seq.; 71-6-103(a).