Code of Massachusetts Regulations
118 CMR - DISABLED PERSONS PROTECTION COMMISSION
Title 118 CMR 14.00 - Filing Objections And Administrative Review
Section 14.02 - Petitions for Review

Universal Citation: 118 MA Code of Regs 118.14

Current through Register 1531, September 27, 2024

(1) Parties Who May File Petitions for Review. The identified abuser, or their respective legal representative, who is aggrieved by the disposition of an investigation conducted pursuant to M.G.L. c. 19C may file with the Commission an objection to the conclusion contained in the M.G.L. c. 19C investigation report, except for decisions regarding the screening of an intake, the assignment of an investigator, a jurisdictional determination, the deferral of an investigation pursuant to M.G.L. c. 19C, § 12, or findings in a Compliance Investigation Report.

(2) Grounds for Objection to a Determination of Abuse or Registrable Abuse. The grounds for filing a Petition for Review objecting to a determination of abuse are:

(a) The investigation report is based on an investigation that was not conducted in accordance with:
1. 118 CMR 5.02(1): Minimum Requirements of Abuse Investigations and/or 118 CMR 5.02(2): Substantiated Investigations of Abuse of Persons with Intellectual or Developmental Disability; and

2. said non-compliance resulted in the reasonable likelihood of substantial prejudice to the petitioner;

(b) The preponderance of evidence does not support the conclusions reached in the investigation report; or

(c) The preponderance of evidence supports conclusions not reached in the investigation report.

(3) Grounds for Objection by a Care Provider to Placement on the Abuser Registry.

(a) A care provider substantiated for registrable abuse pursuant to 118 CMR 5.02(2)(b) may file a Petition for Review to provide information that demonstrates, based upon the totality of the circumstances, the incident was isolated and unlikely to reoccur, and that the care provider is fit to provide services or supports to persons with intellectual or developmental disabilities, and that the care provider should not be placed on the registry.

(b) Factors that may be considered by the Commission in determining whether the incident was isolated and unlikely to reoccur and the care provider is fit to provide services and supports to persons with intellectual or developmental disabilities may include, but are not limited to:
1. the nature and extent of the serious physical injury, serious emotional injury, or abuse per se sustained by the person with an intellectual disability or person with a developmental disability; and

2. relevant details about the care provider, such as whether the care provider received training relevant to the incident at issue; the care provider's employment history in working with individuals with disabilities; prior instances of similar conduct by the care provider, regardless of whether said conduct constituted abuse or abuse per se; any statements or communication regarding the care provider's work history and fitness to provide services and supports to persons with disabilities; and whether the care provider's conduct could reasonably be addressed through training, education, rehabilitation, or other corrective employment action and the care provider's willingness to engage in said training, education, or other corrective employment action.

(4) Petition Process.

(a) Petition for Review.
1. A petitioner shall file a Petition for Review which:
a. shall be in writing;

b. shall set forth with sufficient specificity, including supporting evidence and documentation, the grounds for the petition; and

c. shall be filed with the Executive Director of the Commission, or his or her designee.

2. Said Petition for Review shall be filed with the Commission within ten business days of the petitioner's receipt of a copy of the investigation report from the Commission.

3. For good cause shown by the petitioner, the Commission may, at its sole discretion, provide up to an additional 30 calendar days for the filing of a Petition for Review.

(b) Action upon Petition for Review.
1. Within a reasonable time from the filing of the Petition for Review, the Executive Director or his or her designee shall render a decision in writing on the issue(s) in contention in the petition, including a statement of the nature of the decision and the reasons underlying said decision.

2. A decision rendered by the Executive Director or his or her designee shall be the final and conclusive determination of the Commission of the objection raised in the filed petition in each case.

(c) Time Frames. The Commission's good faith failure to meet the time frames set forth in 118 CMR 14.00 shall not confer any rights, either expressly or impliedly, upon the petitioner.

(5) Notification of Right to Petition for Review:

(a) Notification to Caretaker. If, after investigation, the Commission determines that a caretaker has committed abuse, the Commission shall notify the caretaker of his or her right to file a petition for review of the finding with the Commission.
1. Said notification shall be provided to the caretaker by first-class mail to the caretaker's last known address.

2. If notice provided pursuant to 118 CMR 14.02(5)(a)1. cannot be accomplished, the Commission, at its sole discretion, may provide for any other means of service that is necessary and effective.

3. Unless otherwise established by the petitioner, and subject to the provisions of 118 CMR 14.02(5)(a)2., the petitioner shall be deemed to have received notification three business days after mailing by the Commission.

(b) Notification to Care Provider. If the Commission determines that a care provider has committed registrable abuse pursuant to 118 CMR 5.02(2)(b), the Commission shall:
1. notify the care provider of his or her:
a. right to file a petition for review of the finding of registrable abuse with the Commission;

b. right to appeal the final decision of the Commission that the care provider committed registrable abuse to the division; and

c. right to seek removal of his or her name from the registry as provided in M.G.L. c. 19C, § 15(g).

2. Said notification shall be provided to the care provider by certified mail, return receipt requested and by separate first-class mail to the care provider's last known address.

3. Unless otherwise established by the petitioner, and subject to the provisions of 118 CMR 14.02(5)(b)2., the care provider shall be deemed to have received notification three business days after first-class mailing by the Commission.

4. If notice pursuant to 118 CMR 14.02(5)(b)2. cannot be accomplished, the Commission, at its sole discretion, may provide for any other means of service that is necessary and effective.

5. Said notification shall instruct the care provider of the opportunity to offer evidence that the incident was isolated and unlikely to reoccur and that the care provider is fit to provide services or supports to persons with intellectual or developmental disabilities pursuant to 118 CMR 14.02(3).

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