922 KAR 5:120. Caregiver misconduct registry and appeals

     Section 1. Definitions. (1) "Abuse" is defined by KRS 209.020(8).

     (2) "Adult" is defined by KRS 209.020(4).

     (3) "Cabinet" means the Cabinet for Health and Family Services.

     (4) "Employee" is defined by KRS 209.032(1)(a).

     (5) "Exploitation" is defined by KRS 209.020(9).

     (6) "Investigation" is defined by KRS 209.020(10).

     (7) "Near fatality" means an injury or condition, as certified by a physician, that places an adult in serious or critical condition.

     (8) "Neglect" is defined by KRS 209.020(16).

     (9) "Records" is defined by KRS 209.020(15).

     (10) "Secure methodology" means the deployment of technology to protect the application’s authenticity and to keep user communications, browsing, and identity private in accordance with KRS 209.032.

     (11) "Validated substantiated finding of adult abuse, neglect, or exploitation" is defined by KRS 209.032(1)(b).

     (12) "Vulnerable adult services provider" is defined by KRS 209.032(1)(c).

 

     Section 2. Caregiver Misconduct Registry. (1) The cabinet shall establish a caregiver misconduct registry that contains an individual:

     (a) Who was providing care to an adult as an employee or a person acting with the expectation of compensation;

     (b) Who was the perpetrator of adult abuse, neglect, or exploitation:

     1. Pursuant to 922 KAR 5:070; and

     2. Substantiated on or after July 15, 2014; and

     (c) With a validated substantiated finding of adult abuse, neglect, or exploitation.

     (2) An individual with a validated substantiated finding of adult abuse, neglect, or exploitation shall:

     (a) Remain on the caregiver misconduct registry for a period of at least seven (7) years; and

     (b) Be removed from the caregiver misconduct registry:

     1. In accordance with the error resolution process described in Section 5 of this administrative regulation if an error is confirmed; or

     2. After a period of seven (7) years if:

     a. No additional validated substantiated finding of adult abuse, neglect, or exploitation has occurred since the last finding for which the individual’s name was placed on the caregiver misconduct registry; and

     b. Cabinet records indicate that the incident for which the individual’s name was placed on the caregiver misconduct registry did not relate to:

     (i) An adult fatality or near fatality related to adult abuse or neglect;

     (ii) A criminal conviction related to the incident for which the individual’s name was placed on the

caregiver misconduct registry; or

     (iii) A civil judicial determination related to adult abuse, neglect, or exploitation.

     (3) The caregiver misconduct registry shall be available for a web-based query using a secure methodology by:

     (a) A vulnerable adult services provider in accordance with KRS 209.032(2); and

     (b) An individual in accordance with KRS 209.032(3).

     (4) The caregiver misconduct registry shall be accessible through:

     (a) The department’s main webpage; or

     (b) Another cabinet system, such as the Kentucky Applicant Registry and Employment Screening (KARES) Program established in accordance with 906 KAR 1:190.

     (5) If an individual or a vulnerable adult service provider described in KRS 209.032(1)(c)11 does not have access to the internet, the individual or provider shall submit a signed and completed DPP-246, Caregiver Misconduct Registry Self-Query, to conduct a self-query in accordance with KRS 209.032(2) or (3).

 

     Section 3. Notification of Finding. (1) If the cabinet finds that an employee or a person acting with the expectation of compensation has committed adult abuse, neglect, or exploitation in accordance with 922 KAR 5:070, the cabinet shall:

     (a) Send notice of the finding to the perpetrator by certified mail; or

     (b) Give notice of the finding to the perpetrator, in person, with a witness signature to document that the perpetrator received the notice.

     (2) The cabinet’s notice of a finding of adult abuse, neglect, or exploitation to an employee or a person acting with the expectation of compensation shall include:

     (a) The factual basis for the finding of adult abuse, neglect, or exploitation;

     (b) The results of the investigation;

     (c) Due process requirements in accordance with KRS Chapter 13B and KRS 209.032;

     (d) A statement that a finding shall become a validated substantiated finding of adult abuse, neglect, or exploitation in accordance with KRS 209.032; and

     (e) A statement that the individual subject to a validated substantiated finding of adult abuse, neglect, or exploitation shall be added to the caregiver misconduct registry.

 

     Section 4. Appeals. (1) In accordance with KRS 209.032, if the cabinet makes a finding that an individual providing care to an adult as an employee or with the expectation of compensation has committed adult abuse, neglect, or exploitation, the individual shall be afforded an opportunity for an administrative hearing.

     (2) An administrative hearing conducted by the cabinet or its designee shall be in accordance with KRS Chapter 13B and 209.032.

     (3) The secretary or designee shall issue the final order in accordance with KRS 13B.120 and 209.032.

     (4) A party aggrieved by the secretary’s decision shall have the right to pursue judicial review in accordance with KRS 13B.140, 13B.150, and 209.032(1)(b).

     (5) The proceedings of the administrative hearing shall be disclosed only by the authority of state or federal law.

     (6) If the matter is not subject to the requirements of this section, the cabinet shall inform the person that the matter may be pursued through:

     (a) A service complaint process described in 920 KAR 1:030 or 922 KAR 1:320; or

     (b) The error resolution process in accordance with Section 5 of this administrative regulation.

 

     Section 5. Error Resolution. (1) In accordance with KRS 209.032(5)(a), an individual seeking error resolution shall:

     (a) Submit a written request for record correction to the Commissioner of the Department for

Community Based Services, 275 East Main Street (3W-A), Frankfort, Kentucky 40621;

     (b) Specify the:

     1. Date of the caregiver misconduct registry query which resulted in the error being identified; and

     2. Error contained in the caregiver misconduct registry query results; and

     (c) Provide documentation that verifies the error, if available.

     (2) Within thirty (30) days of receipt of a request in accordance with subsection (1) of this section, the commissioner or designee shall:

     (a) Determine whether an error exists; and

     (b)1. If the cabinet confirms an error:

     a. Correct the records; and

     b. Notify the requesting individual that the records have been corrected; or

     2. If the cabinet cannot confirm an error:

     a. Notify the individual that an error cannot be confirmed based upon the information and documentation submitted with the request; and

     b. Outline information or documentation that may verify an error pursuant to the individual’s request, if any.

 

     Section 6. Incorporation by Reference. (1) The "DPP-246, Caregiver Misconduct Registry Self-Query", 11/14, is incorporated by reference.

     (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Community Based Services, 275 East Main Street, Frankfort, Kentucky 40621; Monday through Friday, 8 a.m. to 4:30 p.m. (41 Ky.R. 703; Am. 1412; 1668; eff. 2-5-2015.)

Notation

     RELATES TO: KRS Chapter 13B, 209

     STATUTORY AUTHORITY: KRS 194A.050(1), 209.032(5)

     NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.050(1) requires the secretary to adopt all administrative regulations necessary under applicable state laws to protect, develop, and maintain the health, personal dignity, integrity, and sufficiency of the individual citizens of the Commonwealth and necessary to operate the programs and fulfill the responsibilities vested in the cabinet. KRS 209.032(5) requires the cabinet to promulgate administrative regulations necessary to implement a central registry of substantiated findings. This administrative regulation establishes the caregiver misconduct registry, due process prior to the addition of an individual to the registry, and error resolution for correction of the cabinet’s records.