Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS Chapter 13B, 194A.060, 205.140, 209, 42 U.S.C.
1320d-1320d-9,
42 U.S.C.
1397-1397e,
1397m-1
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
194A.050(1) requires the
secretary to adopt all administrative regulations necessary under applicable
state laws to protect, develop, and maintain the health, personal dignity,
integrity, and sufficiency of the individual citizens of the Commonwealth and
necessary to operate the programs and fulfill the responsibilities vested in
the cabinet.
KRS
209.032(5) requires the
cabinet to promulgate administrative regulations necessary to implement a
central registry of substantiated findings. This administrative regulation
establishes the caregiver misconduct registry, due process prior to the
addition of an individual to the registry, and error resolution for correction
of the cabinet's records.
Section 1.
Definitions.
(1) "Abuse" is defined by
KRS
209.020(8).
(2) "Adult" is defined by
KRS
209.020(4).
(3) "Cabinet" means the Cabinet for Health
and Family Services.
(4) "Employee"
is defined by
KRS
209.032(1)(a).
(5) "Exploitation" is defined by
KRS
209.020(9).
(6) "Good cause" means justification for
failure to carry forward with a legal obligation related to an appeal,
including:
(a) An appellant's inability to
comprehend the cabinet's written statement describing appeal rights;
or
(b) A cabinet-sanctioned
determination that the appellant or the appellant's legal representative is not
at fault for failure to:
1. Submit a written
request for appeal; or
2.
Participate in a proceeding related to an administrative hearing.
(7) "Investigation" is
defined by
KRS
209.020(10).
(8) "Near fatality" means an injury or
condition, as certified by a physician, that places an adult in serious or
critical condition.
(9) "Neglect"
is defined by
KRS
209.020(16).
(10) "Records" is defined by
KRS
209.020(15).
(11) "Secure methodology" means the
deployment of technology to protect the application's authenticity and to keep
user communications, browsing, and identity private in accordance with
KRS
209.032.
(12) "Validated substantiated finding of
adult abuse, neglect, or exploitation" is defined by
KRS
209.032(1)(b).
(13) "Vulnerable adult services provider" is
defined by
KRS
209.032(1)(c).
Section 2. Caregiver Misconduct
Registry.
(1) The cabinet shall establish a
caregiver misconduct registry that contains an individual:
(a) Who was an employee or a person acting
with the expectation of compensation;
(b) Who was the perpetrator of adult abuse,
neglect, or exploitation:
1. Pursuant to 922
KAR 5:070; and
2. Substantiated on
or after July 15, 2014; and
(c) With a validated substantiated finding of
adult abuse, neglect, or exploitation.
(2) An individual with a validated
substantiated finding of adult abuse, neglect, or exploitation shall:
(a) Remain on the caregiver misconduct
registry for a period of at least seven (7) years; and
(b) Be removed from the caregiver misconduct
registry:
1. In accordance with the error
resolution process described in Section 6 of this administrative regulation if
an error is confirmed; or
2. After
a period of seven (7) years if:
a. No
additional validated substantiated finding of adult abuse, neglect, or
exploitation has occurred since the last finding for which the individual's
name was placed on the caregiver misconduct registry; and
b. Cabinet records indicate that the incident
for which the individual's name was placed on the caregiver misconduct registry
did not relate to an adult fatality or near fatality related to adult abuse or
neglect.
(3) The caregiver misconduct registry shall
be available for a web-based query using a secure methodology by:
(a) A vulnerable adult services provider in
accordance with
KRS
209.032(2); and
(b) An individual in accordance with
KRS
209.032(3).
(4) The caregiver misconduct
registry shall be accessible through:
(a) The
department's main webpage; or
(b)
Another cabinet system, such as the Kentucky Applicant Registry and Employment
Screening (KARES) Program established in accordance with
906 KAR
1:190.
(5) If an individual or a vulnerable adult
service provider described in
KRS
209.032(1)(c) 11 does not
have access to the internet, the individual or provider shall submit a signed
and completed DPP-246, Caregiver Misconduct Registry Self-Query, to conduct a
self-query in accordance with
KRS
209.032(2) or (3).
Section 3. Notification of
Finding.
(1) If the cabinet finds that an
employee or a person acting with the expectation of compensation has committed
adult abuse, neglect, or exploitation in accordance with 922 KAR 5:070, the
cabinet shall send notice of the finding to the perpetrator by certified mail
to the perpetrator's last known address.
(2) The cabinet's notice of a finding of
adult abuse, neglect, or exploitation to an employee or a person acting with
the expectation of compensation shall include:
(a) The factual basis for the finding of
adult abuse, neglect, or exploitation;
(b) The results of the
investigation;
(c) The
perpetrator's right to appeal the substantiated finding in accordance with
KRS
209.032 and this administrative
regulation;
(d) A statement that a
finding shall become a validated substantiated finding of adult abuse, neglect,
or exploitation in accordance with
KRS
209.032 and Section 5 of this administrative
regulation; and
(e) A statement
that a perpetrator of a validated substantiated finding of adult abuse,
neglect, or exploitation shall be added to the caregiver misconduct
registry.
(3)
(a) The cabinet shall reserve the right, in
its sole discretion, to amend, modify, or reverse its investigative finding of
adult abuse, neglect, or exploitation at any time if the finding appears to be
improper based upon:
1. A review of the
cabinet's records; or
2. Subsequent
discovery of additional information.
(b) If amendment, modification, or reversal
of an investigative finding results in a substantiated finding of abuse or
neglect of an adult, the cabinet shall act in accordance with Section 3(1)
and(2) of this administrative regulation.
Section 4. Request for Appeal.
(1) In accordance with
KRS
209.032, if the cabinet makes a finding that
an employee or a person acting with the expectation of compensation has
committed adult abuse, neglect, or exploitation, the individual shall have the
right to appeal the substantiated finding through an administrative
hearing.
(2) A request for appeal
shall:
(a) Be submitted:
1. In writing by the appellant, with the
assistance of the cabinet if the appellant is unable to comply without
assistance; and
2. To the cabinet
no later than thirty (30) calendar days from the individual's receipt of the
notice in accordance with Section 3(1) of this administrative
regulation;
(b) Describe
the nature of the investigative finding;
(c) Specify the reason the individual
disputes the cabinet's substantiated finding; and
(d) Include a copy of the notice of a
substantiated finding in accordance with Section 3 of this administrative
regulation, if available.
(3) The cabinet shall not dismiss a request
for appeal as untimely if an appellant demonstrates good cause.
(4) A final administrative decision made by
the cabinet or cabinet's designee as a result of a previous appeal on the same
issue or an unsubstantiated finding of adult abuse, neglect, or exploitation
shall not be subject to review through an administrative hearing.
Section 5. Administrative Hearing.
(1) An administrative hearing conducted by
the cabinet or its designee shall be in accordance with KRS Chapter 13B and
209.032.
(2) The cabinet's
investigative finding shall become a validated substantiated finding of adult
abuse, neglect, or exploitation if the:
(a)
Perpetrator does not request an administrative hearing in accordance with
Section 4 of this administrative regulation;
(b) Perpetrator fails to:
1. Participate in any stage of the
proceedings after requesting an appeal in accordance with Section 4 of this
administrative regulation; and
2.
Demonstrate good cause; or
(c) Cabinet's substantiated finding is upheld
through the administrative hearing process.
(3) The secretary or designee shall issue the
final order in accordance with
KRS 13B.120 and
209.032.
(4) A party aggrieved by the secretary's
decision shall have the right to pursue judicial review in accordance with
KRS
13B.140,
13B.150,
and
209.032(1)(b).
(5) The proceedings of the administrative
hearing shall be disclosed only in accordance with
KRS
194A.060,
205.140, 42 U.S.C.
1320d-1320d-9,
42 U.S.C.
1397-1397e,
1397m-1,
920 KAR 1:060, and 922 KAR 1:510.
(6) If the matter is not subject to the
requirements of this section, the cabinet shall inform the person that the
matter may be pursued through:
(a) A service
complaint process described in
920 KAR
1:030 or 922 KAR 1:320; or
(b) The error resolution process in
accordance with Section 6 of this administrative regulation.
Section 6. Error
Resolution.
(1) In accordance with
KRS
209.032(5)(a), an individual
seeking error resolution shall:
(a) Submit a
written request for record correction to the Commissioner of the Department for
Community Based Services, 275 East Main Street (3W-A), Frankfort, Kentucky
40621;
(b) Specify the:
1. Date of the caregiver misconduct registry
query which resulted in the error being identified; and
2. Error contained in the caregiver
misconduct registry query results; and
(c) Provide documentation that verifies the error, if
available.
(2) Within
thirty (30) days of receipt of a request in accordance with subsection (1) of
this section, the commissioner or designee shall:
(a) Determine whether an error exists; and
(b)
1. If the cabinet confirms an error:
a. Correct the records; and
b. Notify the requesting individual that the
records have been corrected; or
2. If the cabinet cannot confirm an error:
a. Notify the individual that an error cannot
be confirmed based upon the information and documentation submitted with the
request; and
b. Outline information
or documentation that may verify an error pursuant to the individual's request,
if any.
Section 7. Incorporation by Reference.
(1) The "DPP-246, Caregiver Misconduct
Registry Self-Query", 11/14, is incorporated by reference.
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at the Department for
Community Based Services, 275 East Main Street, Frankfort, Kentucky 40621;
Monday through Friday, 8 a.m. to 4:30 p.m.
STATUTORY AUTHORITY:
KRS
194A.050(1),
209.032(5)