118 CMR, § 5.04 - Registry Compliance Investigations

The Commission may initiate an investigation upon learning of a suspected violation of any provision of 118 CMR 15.00: Department and Employer Registry-related Hiring and Retention Procedures by an employer or the department in the hiring or retention of a care provider.

(1) Minimum Requirements of a Registry Compliance Investigation. Each Compliance investigation conducted by the Commission at minimum, shall include:

(a) an interview with a representative of the employer or department who is responsible for or knowledgeable of compliance procedures pursuant to 118 CMR 15.00: Department and Employer Registry-related Hiring and Retention Procedures;

(b) an interview with all other relevant witnesses with regard to the employer's or department's compliance with provisions of 118 CMR 15.00: Department and Employer Registry-related Hiring and Retention Procedures;

1. If any witness falls within the category of a mandated reporter, he or she has an obligation pursuant to M.G.L. c. 19C to cooperate in the investigation and truthfully provide to the investigator all information he or she may possess that is relevant to the matter under investigation. Refusal to be interviewed or to otherwise cooperate in the investigation will be made a part of the report, and if the witness is an employee of a state agency, unless a mandated reporter's response to a question could be used against him or her in a criminal proceeding, his or her failure to cooperate shall be reported to the person's supervisor and to the appropriate public agency for possible disciplinary action under that agency's regulations or pursuant to the provisions of any relevant collective bargaining agreement or any other contract;

2. Said witness may be accompanied during an interview by a person of his or her own choice who is 18 years of age or older; provided that said companion shall not be a supervisor or administrator of the employer or department whose compliance is at issue, unless requested by said witness and agreed to by the investigator; or is not otherwise involved or has an interest in the matter under investigation. Other than being present during the interview, said companion shall not participate in the actual conduct of the interview; and

3. Said witness shall be informed of the existence of the complaint and the general nature of the allegations. Under no circumstances shall the identity of the reporter be disclosed.

(d) the review and obtaining of copies of all documents which are plainly not irrelevant to the matter under investigation from the employer or department and of which disclosure is required pursuant to M.G.L. c. 19C, §§ 5(1) and 15, and 118 CMR;

(e) any other tasks which, in the discretion of the Commission, are deemed appropriate and are not plainly irrelevant to the compliance investigation; and

(f) if an investigator does not perform one or more of the requirements in 118 CMR 5.04(1)(a) through (e), the investigator shall detail in the Compliance Investigation Report why the requirement was not met and the Commission shall determine whether said requirement(s) is material to the compliance investigation.

(2) Requirements of a Registry Compliance Investigation Report. The Investigation Report of the registry compliance investigation conducted by the Commission shall be submitted to the Commission's Director of Investigations within 60 business days from the date on which the allegation was assigned for investigation. Said Report shall contain the information acquired during the investigation of an alleged violation of 118 CMR 15.00: Department and Employer Registry-related Hiring and Retention Procedures, completion of the required tasks set out in 118 CMR 5.04(1) and all other information deemed appropriate by the Commission to ensure that the designated investigator has properly investigated and evaluated the allegation reported to the Commission and has made appropriate findings of fact and conclusions. Upon request, the Commission may extend this filing deadline.

(3) In the event the Registry Compliance Investigation Report finds the employer failed to comply with 118 CMR 15.00: Department and Employer Registry-related Hiring and Retention Procedures, the Report may recommend one or more of the following:

(a) the imposition of a monetary fine of not more than $5,000;

(b) the revocation or downgrade of a license maintained by the employer; or

(c) the forfeiture of a state contract.

(4) The Commission may cause a fine of up to $5,000.00 to be imposed upon an employer who fails to comply with the requirements of M.G.L. c. 19C, § 15.

(a) If the Commission seeks to impose a fine on an employer, the employer may request a hearing be held pursuant to 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure by filing a Notice of Claim for a hearing and an answer within 21 days of receipt of the Compliance Investigation Report.

(b) A hearing officer shall be designated by the Executive Director. The hearing officer shall enter a recommended decision. A final agency decision shall be issued by the Executive Director or his or her designee. Hearings shall be in accordance with the provisions of 801 CMR 1.01: Formal Rules. Failure to request a hearing and file timely answers may be deemed a waiver of such right and a fine may be imposed by the Commission without further notice.

(5) The Commission may refer any recommendation made pursuant to 118 CMR 5.04 to the department or any other applicable state agency.

Notes

118 CMR, § 5.04

Amended by Mass Register Issue 1319, eff. 8/12/2016. Amended by Mass Register Issue 1448, eff. 7/23/2021.