(A) The director shall make a
finding concerning an allegation of abuse, neglect, exploitation, or
misappropriation on which a hearing was held under rule 3701-64-04 of the
Administrative Code after the expiration of the period specified by paragraph
(J) of that rule for filing objections and, if applicable, the expiration of
the period for filing responses. The director's findings shall be based upon
the hearing officer's recommendation, any written objections and responses, and
the hearing record. If the accused failed to request a hearing within the time
allowed by paragraph (A) of rule 3701-64-03 of the Administrative Code, the
director may make a finding after the expiration of the thirty-day
period.
(B)(A) The director shall
not make a finding against the accused if neglect was caused by factors beyond
his or her
the control of the
accused. Factors beyond the control of the accused may include, but are
not limited to, orders from his or her supervisor or failure of the long-term
care facility or residential care facility to provide adequate staffing or
supplies.
(C)(B) If the director
finds that an accused, who is used by a long-term care facility or residential
care facility, has abused, neglected or exploited a resident or misappropriated
property of a resident, the director shall notify all of the following by
ordinary mail:
(1) The accused;
(2) The long-term care facility where the
incident occurred and any other long-term care facility known by the director
to be using the accused at the time of the director's finding;
(3) The attorney general, county prosecutor,
or other appropriate law enforcement official;
(4)
The nurse aide
registry established under section
3721.32 of the Revised Code,
including a detailed statement of the director's findings;
(4)(5)
Any appropriate professional licensing authority established under Title 47 of
the Revised Code; and
(5)(6) Any other entity
that may benefit from the notice.
In accordance with section 3721.32
of the Revised Code, the director shall include a statement which details his
findings in the nurse aide registry established under that
section.
(D)(C) A nurse aide or
other individual about whom a statement is required by paragraph
(C)
(B) of
this rule to be included in the nurse aide registry may provide the director
with a statement which disputes the director's findings and which explains the
circumstances of the allegation. The director shall include this statement in
the nurse aide registry with the director's findings.
(E)(D) If
the director finds that alleged abuse, neglect, or exploitation of a resident
or misappropriation of property of a resident cannot be substantiated, the
director shall notify the accused and expunge all files and records of the
investigation and the hearing by doing all of the following:
(1) Removing and destroying the files and
records, originals and copies, and deleting all index references;
(2) Reporting to the accused the nature and
extent of any information about the accused which has been transmitted to any
other person or government entity by the director; and
(3) Otherwise ensuring that any examination
of the director's files and records in question show no record whatever with
respect to the accused.
(F)(E) The failure of the
director to comply with any of the time limits specified in rules
3701-64-02 to
3701-64-05 of the Administrative
Code shall not effect the validity of any finding made by the director under
this rule.
(G)(F) In accordance with
division (D)(2) of section
3721.23 of the Revised Code and
in a form and manner prescribed by the director, not earlier than one year
after the date of a finding of neglect, an individual found to have neglected a
resident may petition the director to rescind the finding and remove the
statement and any accompanying information from the nurse aide registry. The
director shall consider the petition.
(1) If,
in the judgment of the director, the neglect was a singular occurrence and the
employment and personal history of the individual does not evidence abuse or
any other incident of neglect of residents, the director shall notify the
individual and remove the statement and any accompanying information from the
nurse aide registry;
(2) The
director shall expunge all files and records of the investigation and the
hearing, except the petition for rescission of the finding of neglect and the
director's notice that the rescission has been approved; and
(3) A petition for rescission of a finding of
neglect and the director's notice that the rescission has been approved are not
public records for the purpose of section
149.43 of the Revised Code.
(H)(G) When files and
records have been expunged under paragraph (E)
(D) or
(G)
(F) of
this rule, all rights and privileges are restored, and the accused, the
director, and any other person or government entity may properly reply to an
inquiry that no such record exists as to the matter
expunged.
