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46-458. Hearing process; definitions

A. After completing its investigation, the department shall notify a person who is alleged to have abused, neglected or exploited a vulnerable adult that the department intends to enter a substantiated finding of abuse, neglect or exploitation in the registry and of that person's right:

1. To receive a copy of the report containing the allegation and findings.

2. To a hearing before entry into the registry pursuant to section 46-459.

B. The department shall send the notice prescribed in subsection A of this section by first class mail not more than fifteen calendar days after completion of the investigation.

C. A request for a hearing on the proposed finding must be received by the department within fifteen calendar days of the notice date.

D. If a request for a hearing is made pursuant to subsection C of this section, the department shall notify the reporting source, the vulnerable adult and the vulnerable adult's representative of record and conduct a review before the hearing. The department shall provide an opportunity for the accused person to provide written or verbal information to support the position that the department should not substantiate the allegation and an opportunity for the reporting source, the vulnerable adult and the vulnerable adult's representative of record to respond to the information provided by the accused person. If the department determines that the accused person did not engage in the alleged conduct by a preponderance of the evidence, the department shall amend the information or finding in the report and shall notify the person, and a hearing shall not be held.

E. Notwithstanding section 41-1061, subsection B, the notification prescribed in subsection A of this section shall also state that if the department does not amend the information or finding in the report as prescribed in subsection D of this section within sixty days after it receives the request for a hearing the person has a right to a hearing unless either:

1. The person is a party in a civil, criminal or administrative proceeding in which the allegations of abuse, neglect or exploitation are at issue.

2. A court or administrative law judge has made findings as to the alleged abuse, neglect or exploitation.

F. If the department does not amend the information or finding in the report as prescribed in subsection D of this section, the department shall notify the office of administrative hearings of the request for a hearing not later than five days after completion of the review. The department shall forward all records, reports and other relevant information with the request for hearing within ten days after the request is made. The department shall redact the identity of the reporting source before transmitting the information to the office of administrative hearings.

G. The office of administrative hearings shall hold a hearing pursuant to title 41, chapter 6, article 10, with the following exceptions:

1. A vulnerable adult who is the victim of or a witness to abuse, neglect or exploitation is not required to testify at the hearing.

2. The identity of the reporting source of the abuse, neglect or exploitation shall not be disclosed without the permission of the reporting source.

3. The reporting source is not required to testify.

4. A written statement from the reporting source may be admitted if the time, content and circumstances of that statement are sufficiently indicative of its reliability.

5. If the person requesting the hearing fails to appear, the hearing shall be vacated and a substantiated finding of abuse, neglect or exploitation shall be entered. On good cause shown, the hearing may be rescheduled if the request is made within fifteen calendar days after the date of the notice vacating the hearing for failure to appear.

H. On completion of the presentation of evidence, the administrative law judge shall determine whether the department's finding that the accused engaged in the alleged conduct is supported by a preponderance of the evidence. If the administrative law judge determines there is insufficient evidence to sustain the department's burden of proof, the administrative law judge shall order the department to amend the information or finding in the report.

I. Notwithstanding section 41-1959, the department shall notify the person who is the subject of the investigation and the person who reported the allegations of abuse, neglect or exploitation of the outcome of the investigation at one of the following times:

1. At the conclusion of the investigation if the report is unsubstantiated or if, by a preponderance of the evidence, there is reason to believe the allegation did occur but no perpetrator has been identified.

2. After the time to request a hearing has lapsed pursuant to subsection C of this section without the department receiving a request for a hearing.

3. After a final administrative decision has been made.

J. All final decisions substantiating an allegation of abuse, neglect or exploitation shall be reported to the adult protective services registry, pursuant to section 46-459, within thirty days after the decision is rendered.

K. Any person receiving information pursuant to this section shall maintain its confidentiality as provided by section 41-1959, subsection A.

L. This section applies only to those allegations of abuse, neglect or exploitation received by the department on or after July 1, 2007.

M. The department is exempt from the rule making requirements of title 41, chapter 6 for the purposes of implementing this section.

N. For the purposes of this section:

1. "Amend the finding" means to change the finding from substantiated to unsubstantiated.

2. "Amend the information" means to change information identifying the accused of having abused, neglected or exploited a vulnerable adult.

3. "Final decision" means a decision for which the time to appeal has expired or from which no further appeal is available.