††††† 922 KAR 5:120. Caregiver misconduct registry and appeals.

 

††††† 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

††††† STATUTORY AUTHORITY: KRS 194A.050(1), 209.032(5)

††††† 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 cabinetís 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 appellantís inability to comprehend the cabinetís written statement describing appeal rights; or

††††† (b) A cabinet-sanctioned determination that the appellant or the appellantís 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 applicationís 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 individualís name was placed on the caregiver misconduct registry; and

††††† b. Cabinet records indicate that the incident for which the individualís 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 departmentís 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 perpetratorís last known address.

††††† (2) The cabinetís 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 perpetratorís 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 cabinetís 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 individualís 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 cabinetís 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 cabinetís 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 cabinetís 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) Cabinetís 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 secretaryís 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 individualís 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. (41 Ky.R. 703; 1412; 1668; eff. 2-5-2015; 43 Ky.R. 1327; 1792; 1985; eff. 6-2-2017.)