Tenn. Comp. R. & Regs. 0250-07-09-.10 - STAY OF ADMINISTRATIVE PROCEEDINGS

(1) The Department shall stay all administrative proceedings under these Rules:

(a) If an individual whom the Department has classified in a substantiated report as a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect has been arrested or indicted on criminal charges that are derived from the same allegations that caused the Department to investigate; or

(b) If an individual whom the Department has classified in a substantiated report as a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect is the subject of other administrative or civil proceedings that are derived from the same allegations that caused the Department to investigate.

(2) If the arrest, indictment, or initiation of other judicial or other administrative proceedings occurs any time prior to the entry of a final order by the Department, all proceedings under these Rules shall be immediately stayed pending final resolution, including appeals of the judicial or administrative proceedings. Provided, however, that the Department shall notify an individual in accordance with Rules 0250-07-09-.07, 0250-07-09-.08, or 0250-07-09-.09, as appropriate. The individual shall comply with the provisions of these Rules, as appropriate, in order to preserve his or her future rights to a hearing or to judicial review. During the stay, unless the emergency procedures in Rule 0250-07-09-.08 apply, 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 until the proceedings referred to in paragraph (1) of this Rule become final. The Department may only release the fact that judicial or administrative proceedings involving allegations of abuse, severe child abuse, child sexual abuse, or neglect by the individual are pending before a specified court or administrative body.

(3) A final criminal conviction and/or civil adjudication will be conclusive evidence the individual is the perpetrator classified in the substantiated report and the individual will have no right to a hearing provided for in Rule 0250-07-09-.09 in regard to that particular report and the Department may release information and the perpetrator as permitted under these Rules when:

(a) A criminal prosecution results in a conviction or guilty plea for any offense listed in T.C.A. § 37-1-602(a)(3) (2016 and as amended), or any act which would constitute child abuse or neglect;

(b) The individual is found guilty or pleads guilty to any lesser offense derived from the offenses or acts alleged under T.C.A. § 37-1-602(a)(3) or § 37-1-102(b)(21) (2016 and as amended); or

(c) Any court or administrative proceeding results in a judicial or administrative adjudication that the individual has committed, or has knowingly allowed to be committed any act against a child which would constitute abuse, severe child abuse, child sexual abuse, or neglect.

(4) If the criminal, civil or administrative proceeding does not result in a conviction or in a finding as specified in paragraph (3) of this Rule, including pretrial diversion, this fact shall be admissible in the Department's administrative hearing, but may not be dispositive to the issue of whether the report is properly classified as substantiated.

(5) If administrative proceedings were stayed pursuant to this Rule, they shall resume at the point at which they were stayed if the alleged perpetrator so requests in writing to the address listed on the notification to stay proceedings, within thirty (30) days of entry of a final order by a court or other administrative body favorably disposing of the issue of child abuse or neglect involving the alleged perpetrator or of any disposition other than guilty by a court in a criminal proceeding. If the alleged perpetrator fails timely to make such a written request, he or she shall waive his or her rights to a hearing in regard to that report. The substantiated report and information regarding the perpetrator will be released as permitted under these Rules. If the Department learns the civil or criminal proceedings were resolved and thirty (30) days have passed since the resolution of the matter, the Department may reinstate due process at the point at which it was stayed and take the appropriate action.

(6) Unless the individual has waived his or her rights to a formal file review or to an administrative hearing by failing to timely request same or by other action or inaction, if administrative proceedings have been stayed, the Department shall notify in writing the individual as follows:

(a) That administrative proceedings have been stayed pending the final outcome of judicial or other administrative proceedings concerning allegations of child abuse involving the individual;

(b) That the individual may reinstitute the administrative proceedings under these rules at the point they were stayed only if the individual requests such in writing to the Department at the address listed on the notice of stay within thirty (30) days of the entry of a final order by the court or administrative tribunal or verdict by a criminal court (unless the order or verdict is a conviction or guilty plea as specified in paragraph (3) above);

(c) If the individual fails timely to make such a written request, he or she shall waive his or her rights to a formal file review or an administrative hearing in regard to the report and be finally determined as a "substantiated" perpetrator of child abuse or neglect.

Notes

Tenn. Comp. R. & Regs. 0250-07-09-.10

Original rule filed September 13, 1988; effective October 28, 1988. Rule assigned a new control number, removed and renumbered from 1240-07-09-.07 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).