Code of Massachusetts Regulations
118 CMR - DISABLED PERSONS PROTECTION COMMISSION
Title 118 CMR 6.00 - Formal Commissioners' Investigations
Section 6.04 - Investigatory Hearings
Universal Citation: 118 MA Code of Regs 118.6
Current through Register 1531, September 27, 2024
(1) Conduct of Investigatory Hearings.
(a) The attendance of at least two
Commissioners, which shall be a quorum, shall be required to conduct an
investigatory hearing pursuant to 118 CMR 6.04.
(b) The Commissioners shall preside over the
process of conducting investigatory hearings pursuant to M.G.L. c. 19C, §
8 and 118 CMR. The Commissioners shall:
1.
determine the parties to each hearing;
2. determine which evidence they wish to
consider;
3. receive
evidence;
4. determine the conduct
and scope of such hearing; and
5.
make findings at the conclusion of the hearing based upon the preponderance of
evidence presented.
(c)
General Counsel for the Commission shall represent the Commission at said
hearings and shall act at the direction of the Commissioners.
(d) Unless an emergency investigatory hearing
is convened by a majority vote of the Commissioners, in which case 72-hour
telephone notice shall be given to all the parties enumerated in 118 CMR
6.04(2)(a), the Commission shall give written notice of an investigatory
hearing at least ten business days prior to the commencement of the
hearing.
(e) Unless otherwise
required by 118 CMR, notice of said hearings shall be made:
1. by posting said notice at the office of
the Secretary of the Commonwealth;
2. by certified or first class mail to
required parties; and
3. by mail to
federal protection and advocacy agencies for persons with disabilities which
have filed with the Commission a request to be so notified.
(2) Parties to Investigatory Hearings.
(a)
Required parties to investigatory hearings shall be as follows:
1. a representative from the state agency
that provided services to the person(s) with a disability(ies) at the time of
the alleged abuse;
2. a
representative from the state agency which is providing services to the
person(s) with a disability(ies) at the time of the hearing, if different from
that state agency providing services to the person(s) with a disability(ies) at
the time of the alleged abuse;
3. a
representative from the referral agency which performed the initial
investigation of the initial report of abuse, if not the Commission;
and
4. any other person or entity
that the Commissioners, in their discretion, determine may provide relevant
information to the Commission regarding the matter under
investigation.
(b) Other
interested parties may be allowed to participate in the hearing at the
discretion of the Commissioners under such terms and conditions as the
Commissioners may determine appropriate.
(c) The failure of a required party to attend
a hearing after receiving notice shall not prevent a hearing from proceeding;
however, the Commissioners may determine not to proceed without the absent
required party.
(3) Testimony.
(a)
Testimony taken at investigatory hearings shall be recorded by the Commission,
either by electronic or video recording device or stenographic method. All
other recording or transcription of hearings shall be prohibited, unless
specifically authorized by the Commissioners after a written request made to
them at least two business days prior to the commencement of the
hearing.
(b) At the discretion of
the presiding Commissioners, testimony at any hearing may be taken under
oath.
(4) Witnesses.
(a) Prior
to testifying, each witness called by the Commission shall be given a copy of
118 CMR 6.00 and any protocols
and procedures published thereto.
(b) Each witness shall have the right to be
represented by counsel at a hearing.
(c) Each witness may refuse to submit
evidence or give testimony if such evidence or testimony could tend to
incriminate him or her, but witnesses who are mandated reporters who refuse to
submit evidence or to give testimony, unless a response to a question could be
used against him or her in a criminal proceeding, shall have his or her failure
to cooperate reported to the person's supervisor and to the appropriate state
agency for possible disciplinary action.
(5) Evidence.
(a) The rules of evidence observed by courts
shall not be observed in any hearing conducted pursuant to M.G.L. c. 19C, and
118 CMR; however, subject to the exemptions contained in M.G.L. c. 19C, §
5(1), the rules of privilege as recognized by law shall be observed.
(b) Unless it is determined by the
Commissioners that such disclosure is required to carry out the
responsibilities of M.G.L. c. 19C, personally identifiable and confidential
information shall not be revealed at a hearing.
(c) If the Commissioners determine that
during the course of the hearing disclosure of personally identifiable or
confidential information will occur, the Commissioners or their designee shall:
1. give notice ten business days prior to the
commencement of the hearing to the person whose data will be disclosed or to
his or her authorized representative of the Commission's intent to disclose
personally identifiable or confidential information;
2. give that person or authorized
representative an opportunity to object to the disclosure prior to the
commencement of the hearing;
3.
presume that the person has no objection to such disclosure if the person fails
to affirmatively notify the Commission of his or her objection regarding the
disclosure of such information within five business days of being notified by
the Commission;
4. seek a judicial
determination regarding the proposed disclosure if the affected person is a
person with a disability and deemed by the Commission to be incapable of
exercising his or her rights to object to such disclosure and there is no
authorized representative, or the authorized representative is the alleged
abuser;
5. not disclose the
information if the person with a disability, authorized representative or the
Court, as the case may be, expressly objects to the disclosure;
6. disclose as little information as is
necessary in the event disclosure of personally identifiable or confidential
information is made during a hearing; or
7. vote to go into executive session in
accordance with the provisions of the Open Meeting Law, M.G.L. c. 30A,
§§ 18 through 25, and the requirements of M.G.L. c. 19C, §§
3 and 8, to consider the reputation, character, physical condition or mental
health of an individual.
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