Tenn. Comp. R. & Regs. 0250-07-09-.07 - RIGHT TO NOTICE AND OPPORTUNITY FOR FORMAL FILE REVIEW

(1) With the exception of minor perpetrators, within ten (10) business days after the Department has closed the case and classified an individual in a substantiated report as a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect, the Department shall begin the process of notifying the individual of the classification. The notification shall be made through a delivery system capable of tracking to the individuals last known address. The notification shall inform the individual that he or she may request a formal file review by the Commissioner's designee to determine whether the report has been properly classified as "substantiated".

(2) If the substantiated perpetrator is a minor perpetrator, the Department shall notify the minor, the child's parent or guardian, Child Protective Services, Regional General Counsel, and any known Guardian Ad Litem or other attorney for the child. The minor perpetrator shall automatically receive a formal file review as set out below. The minor perpetrator will not receive the notice set out in Rule 0250-07-09-.07(4) since the formal file review shall be automatic. The Department shall notify the minor perpetrator of the opportunity to submit rebuttal evidence in accordance with Rule 0250-07-09-.07(6) and shall otherwise follow the procedures and timeframes outlined in Rule 0250-07-09-.07(7) through Rule 0250-07-09-.07(11).

(3) The Department shall determine whether the emergency procedures of Rule 0250-07-09-.08 apply to the individual whom the Department has classified as a substantiated perpetrator of any form of abuse or neglect in a substantiated report.

(4) The notice to obtain a formal file review shall contain, at a minimum, the following:

(a) That the individual has been classified as the perpetrator of abuse, severe child abuse, child sexual abuse, or neglect in a substantiated report investigated by the Department;

(b) That the individual may request a formal file review by the Commissioner's designee within twenty (20) business days of the date of service of the notice, the notice must be received by the Commissioner's designee within the twenty (20) business days to be considered timely;

(c) That failure to submit a request for a formal file review within twenty (20) business days, absent a showing of good cause, shall result in the classified report becoming final and the individual shall waive any right to a formal file review; and

(d) That the request for a formal file review shall be submitted to the specific address listed in the notice.

(5) The Department shall date-stamp all requests for formal file reviews on the date received.

(6) The Department shall respond to a timely filed request for a formal file review within ten (10) business days of receipt by sending written notice of the individual's obligations pursuant to a formal file review process. This additional notice shall include, at a minimum, the following:

(a) That the individual may submit additional written or documentary information on his or her behalf to the address identified in paragraph 4(d) of this Rule;

(b) That the individual must submit and the Department must receive the additional information within thirty (30) business days of the date of the notice;

(c) That if the information is not timely submitted, the formal file review shall proceed with the information provided in the file and that the individual's right to submit additional information shall be waived; and

(d) That the formal file review shall be completed within ninety (90) business days of the date of the notice.

(7) Unless the emergency procedures in Rule 0250-07-09-.08 apply, during the twenty (20) business day period in which an individual may request a formal file review, the Department shall not disclose that the individual has been classified as the perpetrator of abuse, severe child abuse, child sexual abuse, or neglect in a substantiated report. In addition, the Department shall not disclose any details about the case. The Department may only confirm that a child abuse, severe child abuse, child sexual abuse, or neglect investigation has commenced.

(8) In conducting the formal file review, the Commissioner's designee shall determine whether a preponderance of the evidence available to the reviewer, including any submission by the alleged perpetrator, supports substantiation.

(9) If the Commissioner's designee determines that a preponderance of evidence does not support substantiation, the report shall be reversed and it shall be classified as unsubstantiated. The Department shall not release information from its records identifying the individual as a perpetrator of any form of abuse or neglect. Nothing in these rules shall be construed to require the expunction of internal case records maintained by the Department. Within ten (10) business days of the date of completion of the formal file review, the Department shall send to the individual who was classified in a report of any form of abuse or neglect at his or her last known address written notice containing, at a minimum, the following:

(a) The formal file review has classified the report as unsubstantiated; and

(b) The Department shall not release information from its records identifying the individual as a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect.

(10) If the Commissioner's designee determines that the proof in the report supports a different conclusion than that reached by the Department, the report shall be modified and it shall be classified accordingly. The Commissioner's designee shall notify the individual of the outcome.

(11) If the Commissioner's designee determines that a preponderance of the evidence supports substantiation, the report shall be upheld and it shall be classified as substantiated. Within ten (10) business days of the date of completion of the formal file review, the Department shall send to the individual who was classified in a report of any form of abuse or neglect at his or her last known address written notice containing at a minimum, the following:

(a) That the individual has been identified as the perpetrator of abuse, severe child abuse, child sexual abuse, or neglect in a substantiated report investigated by the Department; and

(b) That, after conducting a formal file review, the "substantiated" report was upheld.

(c) That the individual may request a hearing within twenty (20) business days of the date of the notice before an administrative law judge by completing the form provided to the individual by the Department.

(d) That if the individual requests a hearing, he or she shall complete the attached form and mail or fax it to the Department's Administrative Procedures Division.

(e) That if the individual fails to timely request a hearing absent good cause, he or she shall waive the right to an administrative hearing.

(f) That if the individual fails to timely request a hearing absent good cause, the Department will release its finding of abuse, severe child abuse, child sexual abuse, or neglect to any individual or organization consistent with these rules.

Notes

Tenn. Comp. R. & Regs. 0250-07-09-.07

Original rule filed September 13, 1988; effective October 28, 1988. Rule assigned a new control number, removed and renumbered from 1240-07-09-.02 filed and effective March 25, 1999. Repeal and new rule filed September 11, 2006; effective November 25, 2006. Emergency rule filed July 19, 2013; effective through January 15, 2014. On January 16, 2014, the rule reverted to its previous status. Amendments filed October 6, 2017; effective 1/4/2018.

Authority: T.C.A. §§ 4-5-226(b)(2), 37-1-409, 37-1-612, 37-1-616, 37-5-101, 37-5-105, 37-5-106, 37-5-107, 37-5-112, 37-5-112(a), and 37-5-512(a).