§ 12-12-1715 - Rights of subject of report -- Investigative determination of the Department of Human Services -- Notice of finding -- Appeal. - Arkansas Statutes

12-12-1715. Rights of subject of report -- Investigative determination of the Department of Human Services -- Notice of finding -- Appeal.

(a) Upon completion of an investigation, the Department of Human Services shall determine that an allegation of adult maltreatment or long-term care facility maltreatment is either:

(1) (A) Unfounded, a finding that shall be entered if the allegation is not supported by a preponderance of the evidence.

(B) (i) An unfounded report shall be expunged one (1) year after the completion of the investigation.

(ii) Demographic information may be retained for statistical purposes; or

(2) (A) Founded, a finding that shall be entered if the allegation is supported by a preponderance of the evidence.

(B) A determination of founded but exempt shall be entered on a report if an adult practicing his or her religious beliefs is receiving spiritual treatment under 5-28-105 or 12-12-1704.

(b) (1) (A) After making an investigative determination, the department shall notify in writing within ten (10) business days:

(i) (a) The person identified as the offender.

(b) However, in cases of unfounded self-neglect, no notice is required;

(ii) Either the:

(a) Person identified as the maltreated person;

(b) Legal guardian of the maltreated person; or

(c) Natural or legal guardian of a long-term care facility resident under eighteen (18) years of age;

(iii) The current administrator of the long-term care facility if the incident occurred in a long-term care facility; and

(iv) If known by the Office of Long-Term Care, the administrator of the long-term care facility that currently employs the offender if different from the long-term care facility in which the incident occurred.

(B) If the investigation determines that the report is founded, notification to the offender shall be by process server or by certified mail, restricted delivery.

(2) The notification under subdivision (b)(1) of this section shall include the following:

(A) The investigative determination, exclusive of the source of the notification, including the nature of the allegation and the date and time of occurrence;

(B) A statement that an offender of a founded report has the right to an administrative hearing upon a timely request;

(C) A statement that the request for an administrative hearing shall be made to the department within thirty (30) days of receipt of the notice of determination;

(D) A statement that the administrative hearing will be by telephone hearing unless the offender requests an in-person hearing within thirty (30) days after the date of receipt of notice of the determination;

(E) A statement of intent to report in writing after the offender has had an opportunity for an administrative hearing the founded investigative determination to:

(i) The Adult and Long-term Care Facility Resident Maltreatment Central Registry; and

(ii) Any applicable licensing authority;

(F) A statement that the offender's failure to request an administrative hearing in writing within thirty (30) days from the date of receipt of the notice will result in submission of the investigative report, including the investigative determination, to:

(i) The registry; and

(ii) Any applicable licensing authority;

(G) The consequences of waiving the right to an administrative hearing;

(H) The consequences of a finding by a preponderance of the evidence through the administrative hearing process that the maltreatment occurred;

(I) The fact that the offender has the right to be represented by an attorney at the offender's own expense; and

(J) The name of the person making the notification, his or her occupation, and the location at which he or she can be reached.

(c) (1) The administrative hearing process shall be completed within one hundred twenty (120) days from the date of the receipt of the request for a hearing unless waived by the offender.

(2) The department shall hold the administrative hearing at a reasonable place and time.

(3) For an incident occurring in a long-term care facility, the department may not make a finding that an offender has neglected a long-term care facility resident if the offender demonstrates that the neglect was caused by factors beyond the control of the offender.

(4) A delay in completing the administrative hearing process that is attributable to the offender shall not count against the time limit in subdivision (c)(1) of this section.

(5) Failure to complete the administrative hearing process in a timely fashion shall not prevent the department or a court from:

(A) Reviewing the investigative determination of jurisdiction;

(B) Making a final agency determination; or

(C) Reviewing a final agency determination under the Arkansas Administrative Procedure Act, 25-15-201 et seq.

(6) If any party timely requests an in-person administrative hearing, the hearing officer may notify the parties that the hearing will be conducted by video conference.

(d) (1) When the department conducts an administrative hearing, the chief counsel of the department may require the attendance of witnesses and the production of books, records, or other documents through the issuance of a subpoena if the testimony or information is necessary to adequately present the position of the department or the alleged offender in a report.

(2) Failure to obey the subpoena may be deemed a contempt and is punishable accordingly.

(e) If the department's investigative determination of founded is upheld during the administrative hearing process or if the offender does not timely appeal for or waives the right to an administrative hearing, the department shall report the investigative determination in writing within ten (10) business days to:

(1) The offender;

(2) The current administrator of the long-term care facility if the incident occurred in a long-term care facility;

(3) The administrator of the long-term care facility that currently employs the offender if different from the long-term care facility in which the incident occurred;

(4) The appropriate licensing authority;

(5) The registry;

(6) The maltreated person or the legal guardian of the maltreated person; and

(7) If required under 21-15-110, the employer of any offender if the offender is in a designated position with a state agency.