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Rulemaking Hearing Rule(s) Filing Form Rulemaking Hearing Rules are rules filed after and as a result of a rulemaking hearing (Tenn. Code Ann. § 4-5-205).

10- 10- 1'1

Pursuant to Tenn. Code Ann. § 4-5-229, any new fee or fee increase promulgated by state agency rule shall take effect on July 1, following the expiration of the ninety (90) day period as provided in § 4-5-207. This section shall not apply to rules that implement new fees or fee increases that are promulgated as emergency rules pursuant to§ 4-5-208(a) and to subsequent rules that make permanent such emergency rules, as amended during the rulemaking process. In addition, this section shall not apply to state agencies that did not, during the preceding two (2) fiscal years, collect fees in an amount sufficient to pay the cost of operating the board, commission or entity in accordance with § 4-29-121 (b}.

: }l.g~r1c;y/§oard/Commissie>r1: : JE)r111E)?!SeE)[)epartment()f Children's Services Division: ' Office of the General Counsel

Contact Person: J ljelen Roclgers ·· c3,, .... c:: .·· .... .. .... .

Address: UBS Tower, Floor 315 Deaderick Street

-----' Nashville, TN ............. .. ............... .. .. .. .. .. .. .. ................. . ....... ... ............ _Z~ip~:-: _3_724} ... .

Phone: : 615-741 -1404 Email: ' rJE)IE)r1.RodgE)rs@(n:g()y

Revision Type (check all that apply): X Amendment

New Repeal

Rule(s) (ALL chapters and rules contained in filing must be listed here. If needed, copy and paste additional tables to accommodate multiple chapters. Please make sure that ALL new rule and repealed rule numbers are listed in the chart below. Please enter only ONE Rule Number/Rule Title per row)

Chapter Number Chapter Title 0250-07-09 Classification and Review of Reports of Child Abuse/Neglect and Due Process Procedures - --- -----+--fo_r_R_e_l_e_as_e_ of_C_ h_ildAbuse/Neglect Records .... _________ _

Rule Number Rule Title <--------- -------- ·-·-··-·······---···-·----····---·----.-------- - - -----------

0250-07-09-.01 Definitions ---+--- ·----

0250-07-09-.02 Scope of Rules 0250-07-09-.03 Release to Covered Educational Entities

····------.··-··-·--···-·--··--0250-07-09-.04 Prohibited Releases ,---------- --------·---- - - - - ·-------- ---· -·-- ---

0250-07-09-.05 When Rigtits Under t.h!?_g tic:1_pt~r_f.\tt9gtl .. . . . . . ·-- - ------ _ _ _ .. .. 02 50-07-09-.06 Standards and Criteria for Review of Classification of Reports of Child Abuse/Neglect as

"Substantiated" -1------------ -··-·•••••••·••·-·---"'" -- -···-·- •••• •••"·-·-- - ----

0250-07-09-,07 f3.igh.t .to Notice and OpJ)_()_r:tunity for Formal FiIE) ..... f3E)\/iew __ .. .. . .............. . 0250-07-09-.08 Alleged Perpetrators with Current Access to Children; Emergency Notification ----- --- -· -0250-07-09-. 09 Rigti_t __ !e> 1'J.°-ti<?E)_c:111_cl 9 1?P()riunity forc:111 f\9t"llir1i?tr.§!i\/E)_ljE)9ri11_g __ . .. ............................... .. ....... .

· 0250-07-09-.1 O Stay of Administrative Proceedings _ _ _ _ ___ _ __ _ _ ------ ·-·- ....... - ....... --· ........... __ ................. __ . · .. 0250-07-09-.11 Conduct of Administrative Hearing .. 0250-07::.Q~: :1_2 _:= gfoI~:f-b._u?_E)13_~_gi3>!ry _13eview·-com-mittee =---~ ~ --_ .. .. ... .... _ ---·- .... .... _

SS-7039 (June 2016) RDA 1693

Withdrawal of rule 0250-07-09-.12 filed December 21, 2017. See page 42.

0250-07-09

Classification and Review of Reports of Child Abuse/N eglect and Due Process Procedures for Release of Child Abuse/Neglect Records

Rule 0250-07-09-.01 Definitions is amended by deleting the text of the rule and substituting instead the following language, so that as amended, the rule shall read :

(1) "Abuse" exists when a child victim is suffering from, has sustained, or may be in immediate danger of suffering from or sustaining a wound, injury, disability or physical or mental condition caused by brutality, neglect or other actions or inactions of a parent, relative, guardian or caregiver.

(2) "Adult" means any person eighteen (18) years of age or older.

(3) "Child victim" means a person under the age of eighteen (18) years of age or a delinquent youth in the Department's custody under the age of nineteen (19) .

(4) "Child sexual abuse" shall have the same meaning as set out in T.C.A. § 37-1-602(a) (2016 and as amended) .

(5) "Commissioner's designee" means the person designated by the Commissioner of the Tennessee Department of Children's Services to act pursuant to this rule.

(6) "Covered Educational Entities" means the Department of Education, any local board of education, and any Local Educational Agency (LEA).

(7) "Covered Individual" means any individual who is currently employed by or conditionally offered employment with one of the Covered Educational Entities.

(8) "Department" means the Tennessee Department of Children's Services.

(9) "Minor Perpetrator" means a perpetrator of any form of child abuse or neglect who was under the age of eighteen (18) at the time of substantiation and case closure. A minor perpetrator will follow all procedures for perpetrator throughout these Rules unless otherwise specifically noted.

(10) "Neglect" means the actions or omissions of a parent, relative, guardian, or caregiver which subject a child victim to actual or threatened harm, including, but not limited to, conduct which leads to a child suffering from any of the conditions listed in the definition of "dependent and neglected child" set out at T.C.A. § 37-1-102(b)(12) (2016 and as amended) .

(11) "Record" includes files, reports, records, communications and working papers related to investigations or providing services, video tapes, photographs, or electronic mails.

(12) "Severe child abuse" shall have the same meaning as set out in T.C.A. § 37-1-102 (2016 and as

amended) .

(13) "Substantiated" means the classification assigned to an individual determined to be a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect. The term substantiated also encompasses synonymous terms set out in rules, policy, and statute, including, but not limited to, "indicated", "founded", or other terms signifying the individual was determined to be the perpetrator of child abuse or neglect.

(14) "Unsubstantiated" means the classification assigned to an individual who is not determined to be a perpetrator of abuse, severe child abuse, child sexual abuse or neglect. The term unsubstantiated encompasses synonymous terms set out in rules, policy, and statute, including, but not limited to, "unfounded" or other terms signifying the ind ividual has not been determined to be the perpetrator of child abuse or neglect.

SS-7039 (June 2016) 2 RDA 1693

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, and 37-5-512(a) .

Rule 0250-07-09-.02 Scope of Rules is amended by deleting the text of the rule and substituting instead the following language, so that, as amended, the rule shall read:

(1) These Rules establish procedures to review substantiated cases and to release the identity and other related information of a perpetrator in substantiated reports of any form of abuse or neglect.

(2) A release pursuant to these Rules shall be for purposes of protecting children from any form of child abuse or neglect and for purposes directly connected with the administration of T.C.A. §§ 37-1-401 et seq ., 37-1 -601 et seq., 49-1 -1101 et seq., and 71 -3-501 et seq.

(3) These Rules shall not apply when the Department intends to release or has released records or information related to child abuse or neglect to any of the following:

(a) Any state or federal law enforcement agency investigating a report of known or suspected child abuse or neglect or any crimes involving children;

(b) Any state District Attorney, Attorney General, or United States Attorney or their authorized assistant involved in investigating or prosecuting crimes against children ;

(c) Any state or federal grand jury by subpoena or presentation of evidence by the District Attorney or United States Attorney to such grand jury;

(d) Treatment professionals treating the child, his or her family, or the perpetrator;

(e) Department employees for purposes consistent with enforcement of the child abuse and neglect or child welfare licensing laws, including disclosure to other individuals for authorized purposes;

(f) Any state or federal social service or other agency investigating cases of child abuse or neglect or providing treatment or care for alleged or known victims of child abuse or neglect;

(g) Any court official, probation counselor, parole officer, designated employee of any Department of Correction or other similarly situated individual charged with preparing information to be presented in any administrative or judicial proceeding concerning any individual charged with or convicted of any offense involving child abuse, child sexual abuse, or neglect;

(h) The court, administrative board or hearing, the officials or employees thereof in the performance of their duties, the parties, or their legal representatives in any judicial or administrative proceeding or before any board or hearing officer for the purpose of protecting a child or children from any form of abuse or neglect, except when such court, administrative hearing, board, or hearing officer, other than the Department, is adjudicating a case affecting the perpetrator's ability to remain or become employed or licensed, in which situation such information shall be released only by order of the court or hearing officer;

(i) The Department of Education and the Department of Human Services pursuant to T.C.A. §§ 37-5-512(a)(2) and (3) (2016 and as amended) regarding an individual who is the subject of an ongoing or completed investigation;

U) A foster care agency contractor to determine if an individual is a suitable placement for a DCS custodial child;

(k) The Department of Intellectual and Developmental Disabilities, the Department of Mental Health and Substance Abuse Services, or any other department of state government with whom the Department has developed an appropriate Memorandum of Understanding;

(I) An agency for the purposes of complying with the Department's employee and contractor background check policies;

SS-7039 (June 2016) 3 RDA 1693

(m) An adoption and child placing agency for the purpose of complying with Hague Accreditation Standards;

(n) An out-of-state entity for the purpose of complying with Adam Walsh Child Protection and Safety Act or other applicable federal or state law;

(o) An out-of-state entity for the purpose of determining whether a placement is suitable for a child pursuant to the Interstate Compact for the Placement of Children;

(p) An agency for the purposes of determining whether a kinship care placement is appropriate; or

(q) Any agency or entity that is provided access under state or federal law.

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, and 37-5-512(a) .

Rule 0250-07-09-.03, currently Prohibited Releases, is amended so that the title of the rule shall now be Release to Covered Educational Entities. Additionally, Rule 0250-07-09-.03 is amended by deleting the text of the Rule and substituting instead the following language, so that, as amended , the Rule shall read:

(1) This Rule shall apply only to child abuse and neglect investigation information mandated by T.C.A. § 49-5-413(e) (2016 and as amended) to be released to Covered Educational Entities relative to a Covered Individual , in which case this rule's procedures apply notwithstanding any language to the contrary contained elsewhere within these rules.

(2) The Department shall offer the due process procedures set out in Rule 0250-07-09-.05(1 ), including the opportunity for a hearing pursuant to Rule 0250-07-09-. 09, to any Covered Individual who has ever been found by the Department to have committed any form of child abuse or neglect and who has not previously waived or exhausted his or her due process rights to a hearing. When the Covered Individual's due process rights have been waived or fully concluded, the Department shall disclose its final finding to any relevant Covered Educational Entity.

(3) In the case of any Covered Individual whose investigation has not been concluded or any Covered Individual whose due process rights have not yet been offered or are otherwise pending, the Department shall conduct an emergency file review pursuant to Rule 0250-07-09-.08. If the emergency file review results in a finding that the Covered Individual poses an immediate threat to the health, safety, or welfare of children , the Department shall disclose that threat to the relevant Covered Educational Entity.

(4) If the Department's proceedings under these rules have been stayed pursuant to Rule 0250-07-09-.10 due to pending criminal charges against a Covered Individual, the Department shall notify the Covered Educational Entity of the pending criminal charge.

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, 37-5-512(a), and 49-5-413(e).

Rule 0250-07-09-.04, currently When Rights Under this Chapter Attach, is amended so that the title of the Rule shall now be Prohibited Releases. Additionally, Rule 0250-07-09-.04 is amended by deleting the text of the Rule and substituting instead the following language, so that, as amended, the Rule shall read :

(1) Any report of abuse or neglect is confidential pursuant to T.C.A. §§ 37-1-409(a)(1), 37-1-612(a), and 37-5-107 (2016 and as amended).

(2) Any unauthorized release of a report of abuse, severe child abuse, child sexual abuse, or neglect constitutes a class B misdemeanor.

(3) Until an individual has exhausted all reviews, excluding the review set out in Rule 0250-07-09-. 12, permitted by these Rules, the Department shall not release any information from its records to any organization or person for purposes of pre-employment screening or licensing, to identify the individual as

SS-7039 (June 2016) 4 RDA 1693

a perpetrator of any form of abuse or neglect, unless such disclosure is necessary to comply with T.C.A. § 49-5-413( e) (2016 and as amended) or other applicable law.

(4) Until an individual has exhausted all reviews permitted by these Rules, excluding the review set out in Rule 0250-07-09-.12, the Department sha ll not release any information from its records to identify the individual as a perpetrator of any form of abuse or neglect to any organization or person that requests this information for purposes of routine or random screening of current employees, volunteers, or associates.

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, 37-5-512(a), and 49-5-413(e).

Rule 0250-07-09-.05, currently Standard and Criteria for Review of Classification of Reports of child Abuse/Neglect as "Indicated", is amended so that the title of the Rule shall now be When Rights Under this Chapter Attach . Additionally, Rule 0250-07-09-.05 is amended by deleting the text of the Rule and substituting instead the following language, so that, as amended , the Rule shall read :

(1) An individual whom the Department has classified in a substantiated report as a perpetrator of any form of abuse or neglect shall have the right to request a formal file review.

(2) If at the conclusion of the formal file review the substantiation is upheld, with or without modification, the individual shall have the right to request an administrative hearing . An individual who fails to request a formal file review after proper notice waives their right to an administrative hearing.

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, and 37-5-512(a) .

Rule 0250-07-09-.06, currently Right to Notice and Opportunity for Formal File Review, is amended so that the title of the Rule shall now be Standard and Criteria for Review of Classification of Reports of Child Abuse/Neglect as "Substantiated". Additionally, Rule 0250-07-09-.06 is amended by deleting the text of the Rule and substituting instead the following language, so that, as amended, the Rule shall read :

A report made against an alleged perpetrator shall be classified as substantiated if the preponderance of the evidence, in light of the entire record, proves that the individual committed any form of abuse or neglect. In determining whether there is a preponderance of the evidence to uphold the substantiation, the reviewer may consider, but is not limited to, the following factors:

(1) Medical and/or psychological information from a licensed physician, medical center, or other treatment professional, that substantiates that abuse or neglect occurred;

(2) An admission by the perpetrator;

(3) The statement of a credible witness or witnesses to the abusive or neglectful act;

(4) The child victim's statement that the abuse or neglect occurred;

(5) Physiological indicators or signs of abuse or neglect, including , but not limited to, cuts, bruises, burns, broken bones or medically diagnosed physical conditions;

(6) Physical evidence that could impact the classification decision;

(7) The existence of behavioral patterns that may be indicative of child abuse or neglect and corroborate other evidence of any form of abuse or neglect;

(8) Circumstantial evidence linking the alleged perpetrator to the abusive or neglectful act(s) (e.g., child was in care of the alleged perpetrator at the time the abuse occurred and no other reasonable explanation of the cause of the abuse exists in the record) .

SS-7039 (June 2016) 5 RDA 1693

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, and 37-5-512(a).

Rule 0250-07-09-. 07, currently Alleged Perpetrators with Current Access to Children; Emergency Notification, is amended so that the title of the Rule shall now be Right to Notice and Opportunity for Formal File Review. Additionally, Rule 0250-07-09-.07 is amended by deleting the text of the rule and substituting instead the following language, so that, as amended, the Rule shall read:

(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;

SS-7039 (June 2016) 6 RDA 1693

(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.

SS-7039 (June 2016) 7 RDA 1693

(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.

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, and 37-5-512(a).

Rule 0250-07-09-.08, currently Right to Notice and Opportunity for Administrative Hearing, is amended so that the title of the Rule shall now be Alleged Perpetrators with Current Access to Children; Emergency Notification. Additionally, Rule 0250-07-09-.08 is amended by deleting the text of the rule and substituting instead the following language, so that, as amended , the Rule shall read :

(1) The provisions of this Rule apply to individuals classified as perpetrators of any form of abuse or neglect

in a substantiated report who pose an immediate threat to the health, safety, or welfare of a child or children to whom the alleged perpetrator has access.

(2) As soon as reasonably possible, the Commissioner's designee shall conduct an emergency file review to determine if an individual identified in a substantiated report as a perpetrator of any form of abuse or neglect poses an immediate threat to the health, safety, or welfare of a child or children to whom the individual has access.

(3) In completing an emergency file review, the Commissioner's designee shall determine whether the substantiated report should be upheld, and whether there is an immediate threat to the health, safety, or welfare of a child or children to whom the alleged perpetrator has access.

(a) If both factors are met, the Department shall then follow the procedures set forth in paragraphs (4), (5) and (6) of this Rule.

(b) If no such immediate threat exists, the Department shall not immediately reveal the alleged perpetrator's identity.

(4) As soon as reasonably possible, the Department shall notify in writing both the alleged perpetrator and the organization or person with whom the individual is associated, if the Commissioner's designee determines the alleged perpetrator poses an immediate threat to the health, safety, or welfare of a child or children to whom the individual has access.

(a) The notice shall contain the information set forth in Rule 0250-07-09-. 07(11 ); and

(b) A statement that the organization or person with which the individual is associated shall receive notice of the Department's determination. The notice shall contain the following:

1. That the organization or person shall ensure that the individual is not a threat to the safety of any child in their care; and

2. That the individual has been notified of his or her rights to a hearing on the allegations, and that the organization or person shall be notified of the final decision regarding the

allegations.

(5) If the individual fails timely to request a hearing absent good cause, the individual shall waive his or her right to a hearing. The Department's substantiated report regarding the individual shall then be available for dissemination, in accordance with these rules , to any associated organization or associated person and the individual 's identity shall be placed in the registry. The Department must receive the request for a hearing within the time frame set out in Rule 0250-07-09-.09(2) for the request to be considered timely.

(6) If the individual timely requests a hearing, pursuant to Rule 0250-07-09-.09(2) , the Department shall follow the procedures set forth in Rule 0250-07-09-.09(4).

SS-7039 (June 2016) 8 RDA 1693

Authority: T.C.A. §§ 4-5-226(b)(2), 37-1 -409, 37-1-612, 37-1-6 16, 37-5-101, 37-5-105, 37-5-106, 37-5-107, 37-5-112, and 37-5-512(a).

Rule 0250-07-09-.09, currently Stay of Administrative Proceedings, is amended so that the title of the Rule shall now be Right to Notice and Opportunity for Administrative Hearing . Additionally, Rule 0250-07-09-.09 is amended by deleting the text of the Rule and substituting instead the following language, so that, as amended , the Rule shall read:

(1) An individual whom the Department has classified in a substantiated report as a perpetrator of any form of abuse or neglect and whose classification has been upheld pursuant to a formal file review may request an administrative hearing before an administrative judge of the Administrative Procedures Division of the Department.

(2) An individual shall request an administrative hearing within twenty (20) business days from the date of the notice of the outcome of the formal file review. The Department must receive the request for an administrative hearing by the twentieth (20th

) business day for the request to be considered timely.

(3) 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 hearing, the Department shall not disclose that the individual has been classified as the perpetrator of any form of 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 an investigation involving child abuse or neglect has commenced. If the individual timely requests a hearing , the Department may only release a statement stating that a hearing concerning the individual pursuant to the child abuse laws of this State is currently pending.

(4) If the individual timely requests a hearing, the Department shall schedule a hearing and give the individual adequate notice of the hearing, as provided by Rule 0250-05-04-.01 .

(5) The hearing will be held , and an initial order entered therein, within one hundred twenty (120) business days of the date of the notice required in Rule 0250-07-09-.07(11 ), unless:

(a) The time limit is extended or waived by agreement of the parties, or for good cause shown; or

(b) The proceedings are stayed pursuant to Rule 0250-07-09-. 10.

(6) If the individual fails to timely request a hearing absent good cause, the individual shall waive his or her right to a hearing. The Department's substantiated report regarding the individual shall then be available for dissemination, in accordance with these rules, to any associated organization or associated individual and the individual's identity as a substantiated perpetrator shall be placed in the registry.

(7) An individual who fails to timely request a hearing may be granted a hearing provided that he or she shows good cause for failure to make a timely request.

(8) Good cause is limited to a failure to receive the notice referred to in Rule 0250-07-09.07(11 ), severe illness, or some other circumstance that substantially prevented the individual from timely requesting a hearing.

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, and 37-5-512(a) .

Rule 0250-07-09-.10, currently Conduct of Administrative Hearing, is amended so that the title of the Rule shall now be Stay of Administrative Proceedings. Additionally, Rule 0250-07-09-. 10 is amended by deleting the text of the Rule and substituting instead the following language, so that, as amended, the Rule shall read :

(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

SS-7039 (June 2016) 9 RDA 1693

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 TC.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 TC.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:

SS-7039 (June 2016) 10 RDA 1693

(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.

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, and 37-5-512(a).

Rule 0250-07-09-.11, currently Evidence; Standard of Proof at the Administrative Hearing, is amended so that the title of the Rule shall now be Conduct of Administrative Hearing. Additionally, Rule 0250-07-09-.11 is amended by deleting the text of the rule and substituting instead the following language, so that, as amended, the Rule shall read:

(1) The administrative hearing will be conducted in accordance with the provisions of the Uniform Administrative Procedures Act and of Rule 0250-05-06.

(2) The sole issue for the administrative judge to determine is whether the preponderance of the evidence, in light of the entire record, proves that the individual committed any form of abuse or neglect.

(3) 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 any form of abuse or neglect in a substantiated , report until the individual has exhausted all of his or her appeal rights under these Rules, including judicial review of a final order by the Department. The Department may only release the fact that a hearing concerning the individual pursuant to the child abuse laws of the State is pending.

(4) If the administrative judge concludes that a preponderance of the evidence does not support a conclusion that the individual committed the act of abuse or neglect, or if a reviewing court reverses a departmental determination of abuse or neglect, the report 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. If the Department had previously disclosed to any organization or person that an individual was under investigation under the child abuse laws of Tennessee, the Department shall immediately notify that organization or person that the report was unsubstantiated . Nothing in this rule shall be construed to require expunction of any information from internal case records maintained by the Department.

(5) The decision of the administrative law judge may be appealed in accordance with the Uniform Administrative Procedures Act.

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, and 37-5-512(a).

Rule 0250-07-09-.12 currently Reserved is amended so that the title of the rule shall now be Child Abuse Registry Review Committee. Additionally, rule 0250-07-09-.12 is amended by deleting the text of the rule and substituting instead the following language, so that, as amended , the rule shall read:

(1) An individual who has been determined to be a perpetrator of abuse or neglect in a substantiated report may apply to have their substantiation(s) reviewed by the Child Abuse Registry Review Committee when:

(a) A year has passed since the final substantiated case was closed; and SS-7039 (June 2016) . 11 RDA 1693

(b) The perpetrator has waived or otherwise exhausted due process.

(2) The individual must complete an application in accordance with applicable Departmental policy.

(3) The purpose of the committee is not to reexamine the underlying facts of the substantiated report(s), but to provide an opportunity for the perpetrator to present rehabilitative or other remedial evidence which suggests the individual should no longer be listed as a perpetrator within Departmental records.

(4) The committee shall decide whether the individual should remain classified as a perpetrator in Departmental records or if sufficient remedial evidence has been presented to justify the removal of that individual as a perpetrator.

(5) If the committee decides the individual should remain classified as a substantiated perpetrator, the individual shall be allowed to re-apply after one (1) year from the date of the decision. Except for minor perpetrators, the individual shall only be allowed to apply for a review twice.

(6) A minor perpetrator shall be allowed to apply once a year until their eighteenth (18th) birthday. Once a

minor perpetrator reaches the age of majority, the procedure set out in Rule 0250-07-09-.12(5) shall apply and the minor perpetrator shall have the ability to request only two (2) further reviews.

(7) The decision of the committee shall be considered discretionary and final.

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, and 37-5-512(a).

SS-7039 (June 2016) 12 RDA 1693

* If a roll-call vote was necessary, the vote by the Agency on these rulemaking hearing rules was as follows:

Board Member Aye No Abstain Absent Signature (if required)

Not Applicable

I certify that this is an accurate and complete copy of rulemaking hearing rules, lawfully promulgated and adopted by the Department of Children's Services (board/commission/ other authority) on 03/27/2017 (mm/dd/yyyy) , and is in compliance with the provisions of T.C.A. § 4-5-222.

I further certify the following :

Notice of Rulemaking Hearing filed with the Department of State on : 01112/17

Rulemaking Hearing(s) Conducted on: (add more dates). 03/17117

Date:

Signature:

Name of Officer: Douglas Earl Dimond

Title of Officer: General Counsel ---------------------

Agency/Board/Commission: ____________ _

Rule Chapter Number(s): _____________________________ _

All rulemaking hearing rules provided for herein have been examined by the Attorney General and Reporter of the State of Tennessee and are approved as to legality pursuant to the provisions of the Administrative Procedures Act, Tennessee Code Annotated, Title 4, Chapter 5.

l.t...l t:;: t-- <I: <f) 7

l..i- :_-_ 0- C )\-- ·

"'.Departmel;)tnf State Use Only \ I , \.D , - · L , --~ I '.:_'i =·

Herbert H. Sia r Attorney General and Reporter

'#U>17 Date

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R, ~ Effective on : ---~(4/_4"---'-/~(S~li-11--F-l+l-~-- -

SS-7039 (June 2016) 13

Tre Hargett Secretary of State

RDA 1693

Public Hearing Comments

One copy of a document containing responses to comments made at the public hearing must accompany the filing pursuant to T.C.A. § 4-5-222. Agencies shall include only their responses to public hearing comments, which can be summarized. No letters of inquiry from parties questioning the rule will be accepted. When no comments are received at the public hearing, the agency need only draft a memorandum stating such and include it with the Rulemaking Hearing Rule filing. Minutes of the meeting will not be accepted. Transcripts are not acceptable

On March 17, 2017, DCS held a public hearing regarding the proposed changes to Classification and Review of Reports of Child Abuse/Neglect and Due Process Procedures for Release of Child Abuse/Neglect Records, 0250-07-09. We invited attendees to comment on each provision in the proposed rules. We received no written comments.

Craig Hargrow, with the Tennessee Commission on Children and Youth (TCCY), offered 2 general comments in support of the proposed changes. First, TCCY supports the change in language regarding the substantiations and strongly supports the new provision of the rule allowing individuals request their substantiation be withdrawn upon proof of changed behavior and circumstances The Juvenile Justice Division of TCCY also supports the automatic notice and automatic review of a substantiation for a minor perpetrator.

SS-7039 (June 2016) 14 RDA 1693

Regulatory Flexibility Addendum

Pursuant to T.C.A. §§ 4-5-401 through 4-5-404, prior to initiating the rule making process, all agencies shall conduct a review of whether a proposed rule or rule affects small business.

Regulatory Flexibility Addendum

The agency shall consider, but not be limited to, each of the following methods of reducing the impact of the proposed rule on small businesses while remaining consistent with health , safety, and well-being:

(1) The extent to which the rule may overlap, duplicate, or conflict with other federal , state, and local governmental rules.

The proposed rules align with Tennessee and federal law and do not conflict with other federal , state, or local governmental rule.

(2) Clarity, conciseness, and lack of ambiguity in the rule.

The proposed rules are clear, concise, and unambiguous.

(3) The establishment of flexible compliance and reporting requirements for small businesses.

These rules do not contain reporting requirements for small businesses.

(4) The consolidation of friendly schedules or deadlines for compliance and reporting requirements for small business.

These rules do not involve schedules or deadlines for compliance and reporting requirements for small businesses.

(5) The consolidation or simplification of compliance or reporting requirements for small businesses.

These rules do not contain reporting requirements for small businesses.

(6) The establishment of performance standards for small businesses as opposed to design or operational standards required in the proposed rule.

These rules do not establish performance, design, or operational standards for small businesses.

(7) The unnecessary creation of entry barriers or other effects that stifle entrepreneurial activity, curb innovation, or increase costs.

These rules do not create unnecessary barriers, stifle entrepreneurial activity, curb innovation, or increase costs.

SS-7039 (June 2016) 15 RDA 1693

Economic Impact Statement

(1) The type or types of small business and an identification and estimate of the number of small businesses subject to the proposed rule that would bear the cost of, or directly benefit from the proposed rule.

These rules are not projected to apply to any small businesses.

(2) The projected reporting , recordkeeping, and other administrative costs required for compliance with the

proposed rule, including the type of professional skills necessary for preparation of the report or record .

There are no reporting , recordkeeping, or other administrative costs required for compliance with the proposed rules.

(3) A statement of the probable effect on impacted small businesses and consumers.

The proposed rules will have no impact on small businesses and consumers.

(4) A description of any less burdensome, less intrusive, or less costly alternative methods of achieving the

purpose and objectives of the proposed rule that may exist, and to what extent the alternative means might be

less burdensome to small business.

There are no less burdensome, less intrusive, or less costly alternative methods of achieving the purpose of the proposed rule amendments.

(5) A comparison of the proposed rule with any federal or state counterparts.

Federal: The Department is unaware of any analogous federal rules.

State: There are no state counterparts with which to compare these proposed rules.

(6) Analysis of the effect of the possible exemption of small businesses from all or any part of the requirements

contained in the proposed rule.

These rules do not provide for any exemptions for small businesses.

SS-7039 (June 2016) 16 RDA 1693

Impact on Local Governments

Pursuant to T.C.A. §§ 4-5-220 and 4-5-228 "any rule proposed to be promulgated shall state in a simple declarative sentence, without additional comments on the merits of the policy of the rules or regulation, whether the rule or regulation may have a projected impact on local governments." (See Public Chapter Number 1070 (http://state.tn.us/sos/acts/106/pub/pc1070.pdf) of the 2010 Session of the General Assembly)

The proposed rule amendments should not have a financial impact on local governments.

SS-7039 (June 2016) 17 RDA 1693

Additional Information Required by Joint Government Operations Committee

All agencies, upon filing a rule, must also submit the following pursuant to T.C.A. § 4-5-226(i)(1).

(A) A brief summary of the rule and a description of all relevant changes in previous regulations effectuated by such rule;

These rules govern the appeals process for individuals who have been substantiated as committing child abuse or neglect by the Department of Children's Services; as well as, the release of an individual's name as a substantiated perpetrator of child abuse or neglect for employment purposes. Previously, these rules only allowed for an individual to receive an APA contested case hearing if their job or professional licensure would be impacted. The proposed amendment would allow for every individual to receive an APA contested case hearing . Also, the proposed amendment would allow for an automatic file review, the first step in the substantiation appeal process, for minor perpetrators. The proposed amendment would also allow a substantiated perpetrator who has exhausted due process and waited one year since case closure to apply to the Child Abuse Registry Review Committee so that the committee may consider any remedial action they might have taken to administratively overturn the substantiation.

(B) A citation to and brief description of any federal law or regulation or any state law or regulation mandating promulgation of such rule or establishing guidelines relevant thereto;

T .C.A. §§ 37-1-409(e) , 37-1-612(f), and 37-5-107U) require the Department of Children's Services to adopt rules to establish administrative and due process procedures for the disclosure of its investigative determinations in order to protect children from abuse and neQlect.

(C) Identification of persons, organizations, corporations or governmental entities most directly affected by this rule, and whether those persons, organizations, corporations or governmental entities urge adoption or rejection of this rule;

None

(D) Identification of any opinions of the attorney general and reporter or any judicial ruling that directly relates to the rule or the necessity to promulgate the rule;

None

(E) An estimate of the probable increase or decrease in state and local government revenues and expenditures, if any, resulting from the promulgation of this rule, and assumptions and reasoning upon which the estimate is based. An agency shall not state that the fiscal impact is minimal if the fiscal impact is more than two percent (2%) of the agency's annual budget or five hundred thousand dollars ($500,000), whichever is less;

The Department of Children's Services does not expect these rules to have a financial impact on local overnments.

(F) Identification of the appropriate agency representative or representatives, possessing substantial knowledge and understanding of the rule;

Stephanie Butler, Department of Children's Services, Director of Internal Quality Control and SafeMeasures Project Manager

Douglas Earl Dimond, Department of Children's Services, General Counsel

Helen Rodgers, Department of Children 's Services, Assistant General Counsel

(G) Identification of the appropriate agency representative or representatives who will explain the rule at a scheduled meeting of the committees;

Stephanie Butler, Department of Children's Services, Director of Internal Quality Control and SafeMeasures Pro·ect Mana er SS-7039 (June 2016) 18 RDA 1693

Douglas Earl Dimond, Department of Children 's Services, General Counsel

Helen Rodgers, Department of Children's Services, Assistant General Counsel

(H) Office address, telephone number, and email address of the agency representative or representatives who will explain the rule at a scheduled meeting of the committees; and

Stephanie Butler UBS Tower, 10th Floor 315 Deaderick Street Nashville, TN 37243 615-532-6190 Stephanie.L.Butler@tn.gov

Douglas Earl Dimond UBS Tower, y'h Floor 315 Deaderick Street Nashville, TN 37243 615-741 -9184 Douglas. E.Dimond@tn.gov

Helen Rodgers UBS Tower, y'h Floor 315 Deaderick Street Nashville, TN 37243 615-7 41 -1404

(I) Any additional information relevant to the rule proposed for continuation that the committee requests .

None

SS-7039 (June 2016) 19 RDA 1693

Redline

0250-07-09

Classification and Review of Reports of Child Abuse/Neglect and Due Process Procedures for Release of Child Abuse/Neglect Records

Rule 0250-07-09-.01 Definitions is amended by deleting the text of the rule and substituting instead the following language, so that as amended, the rule shall read:

( 1)

(2)

(3)

(4)

"Abuse" exists when a person under the age of eighteen (18) is suffering from , has sustained , or may be

in immediate danger of suffering from or sustaining a wound , injury, disability or physical or mental

condition caused by brutality, neglect or other actions or inactions of a parent, relative, guardian or

caretaker. Tenn. Code Ann. §37 1 102(b)(1)

"Adult" means any person eighteen (18) years of age or older. Tenn . Code Ann. §37 1 102(b)(3)

"Chi ld" means (A) A person under the age of eighteen (18) years of age.

"Child sexual abuse" means:

(a)

(b)

The commission of any act involving unlawful sexual abuse, molestation, fondling or carnal

knowledge of a child that constitutes a criminal offense under Tennessee law; or

One (1) or more of the following acts:

1.

2.

3.

4.

5.

6.

Any penetration , however slight, of the vag ina or anal opening of one (1) person by the

penis of another person, whether or not there is the emission of semen;

Any contact between the genitals or ana l opening of one (1) person and the mouth or

tongue of another person;

Any intrusion by one (1) person into the genitals or anal opening of another person ,

including the use of any object for this purpose, except that it shall not include acts

intended for a valid medical purpose;

The intentional touching of the genitals or intimate parts, including the breasts, genital

area, groin, inner thighs, and buttocks, or the clothing covering them, of either the child or

the perpetrator, except that it shall not include:

(i)

(ii)

Acts that may reasonably be construed to be normal caretaker

responsibilities, interactions with, or affection for a chi ld ; or

.A,cts intended for a va lid medical purpose;

The intentional exposure of the perpetrator's genitals in the presence of a child , or--aAy

other sexual act intentionally perpetrated in the presence of a child , if such exposure or

sexual act is for the purpose of sexual arousal or gratification, aggression, degradation,

or other similar purpose;

The sexual exploitation of a child, which includes allowing, encourag ing, or forcing

a child to:

Solicit for or engage in prostitution; or

-----------Hj(ii1+) ---EE=+ntbgldalHgl,!-e-ttin-1-,a~nl+d<aco1tc-¼p*"roUJh1-Hiu-b1-Hite*i-d by Tenn. Code Ann. §39 17 1003;

(c) For the purposes of the reporting , investigation, and treatment provisions of Tenn. Code Ann.

§37 1 603 37 1 615 "child sexual abuse" also means the commission of any act specified in

subdivis ion Tenn. Code Ann. § 37 1 602(a)(3) against a child thirteen (13) years of age through

seventeen (17) years of age if such act is committed against the child by a parent, guardian,

relative, person residing in the child's home, other person responsible for the care and custody Gf the ch ild. Tenn . Code Ann. §37 1 602(a)(3)

~) "Department" means the Tennessee Department of Chi ldren's Services.

(6) "Neglect" means a chi ld: (A) Who is without a parent, guardian or legal custodian; (B) Whose parent, guardian or person with whom the chi ld lives, by reason of cruelty, mental incapacity, immorality or depravity is unfit to properly care for such child; (C) VVho is under un lawfu l or improper care, supervision, custody or restraint by any person, corporation, agency, association, institution, society or other organ ization or who is unlawful ly kept out of school; (D) Whose parent, guardian or custodian neglects or refuses to provide necessary medical, surg ical, institutional or hospital care for such chi ld; (E) V\lho, because of lack of proper supervision, is found in any place the existence of which is in violation of law; (F) Who is in such cond itions of want or suffering or is under such improper guard iansh ip or contro l as to injure or endanger the morals or health of such chi ld or others; (G) VI/ho is suffering from abuse or neglect; (H) Who has been in the care and contro l of an agency or person who is not re lated to such chi ld by blood or marriage for a continuous period of eighteen (18) months or longer in the absence of a court order, and such person or agency has not initiated jud icia l proceedings seeking either legal custody or adoption of the chi ld; or (I) Who is or has been allowed, encouraged or permitted to engage in prostitution or obscene or pornographic photograph ing , fi lming, posing, or similar activity and whose parent, guard ian or other custod ian neglects or refuses to protect such chi ld from further such activity. Tenn. Code Ann . §37 1 102(b)(12)

(7) "Commissioner's designee" means the person designated by the Commissioner of the Tennessee Department of Ch ildren's Services to act pursuant to this rule .

(8) "Child care agency" means a place or facility, regard less of 'Nhether it is currently licensed, that is operated as a "family chi ld care home", a "group child care home", a "chi ld care center", or a "drop in center", or that provides ch ild care for five (5) or more children who are not related to the primary caregiver for three (3) or more hours per day. Tenn . Code Ann. 71 3 501.

(9) "Indicated" means the classification assigned to an individual found to be a perpetrator of abuse, severe child abuse, chi ld sexual abuse, or neglect as the result of investigation of a report of abuse. Tenn . Code Ann . §37 1 406(i)

(10) "Reg ional General Counsel" means the supervising attorney for one of the regional DCS offices.

(11) "Severe child abuse" means (A) the knowing exposure of a chi ld to or the knowing fai lure to protect a child from abuse or neg lect that is li ke ly to cause great bodily harm or death and the knowing use of force on a child that is likely to cause great bodily harm or death; (B) Specific brutal ity, abuse, or neglect towards a ch ild that in the opinion of qualified experts has caused or will reasonably be expected to produce severe psychosis, severe neurotic disorder, severe depression , severe developmental delay or retardation, or severe impairment of the chi ld's abi lity to function adequately in the child 's environment, and the knowing fai lure to protect a child from such conduct; (C) the comm ission of any act towards the chi ld proh ibited by Tenn . Code ,A,nn. §§39 13 502 39 13 504 , 39 13 522, 39 15 302, and 39 17 1005 or the knowing failure to protect the child from omission of any such act towards the child; or (D) Knowingly allowing a chi ld to be present within a structure where the act of creating methamphetamine, as that substance is identified in Tenn. Code Ann. § 39 17 408(d)(2) , is occurring . Tenn . Code Ann . §37 1 ~ 02(b)(21 ).

(12) "Record" includes files , reports , records, communications and working papers related to investigations or providing services, video tapes, photographs, or electronic mails.

(13) "Formal Fi le Review" means the review established pursuant to 42 U.S.C. § 5106a(b)(2)(A)(xv)(I I) that is avai lable to an individual whom the Department identifies or proposes to identify as a perpetrator of abuse, severe child abuse, child sexual abuse, or neg lect. The Department shall use a formal fi le review as the initial form of due process when the information regarding the report and identity of a perpetrator must be released to any organization or individual and shall also afford the right to a hearing as provided in Rule 0250 07 09 .07.

(1) "Abuse" exists when a child victim is suffering from, has sustained, or may be in immediate danger of suffering from or sustaining a wound, injury, disability or physical or mental condition caused by brutality,

neglect or other actions or inactions of a parent, re lative, guard ian or caregiver.

(2) "Adult" means any person eighteen (18) years of age or older.

(3) "Ch ild victim" means a person under the age of eighteen (18) years of age or a delinquent youth in the Department's custody under the age of nineteen (19) .

(4) "Chi ld sexua l abuse" shall have the same meaning as set out in T.C.A. § 37-1-602(a) (2016 and as

amended).

(5) "Commissioner's designee" means the person designated by the Commissioner of the Tennessee Department of Children's Services to act pursuant to this rule.

(6) "Covered Educational Entities" means the Department of Education, any local board of education, and any Local Educational Agency (LEA).

(7) "Covered Individual" means any individual who is currently employed by or conditionally offered employment with one of the Covered Educational Entities.

(8) "Department" means the Tennessee Department of Chi ldren's Services.

(9) "Minor Perpetrator" means a perpetrator of any form of chi ld abuse or neglect who was under the age of eighteen (18) at the time of substantiation and case closure. A minor perpetrator will follow all procedures for perpetrator throughout these Rules unless otherwise specifically noted.

(10) "Neglect" means the actions or omissions of a parent, relative, guardian, or caregiver which subject a child victim to actua l or threatened harm, including, but not limited to, conduct wh ich leads to a chi ld suffering from any of the conditions listed in the defin ition of "dependent and neglected child" set out at T.C.A. § 37-1-102(b)(12) (2016 and as amended).

(11) "Record" includes files, reports, records, communications and working papers related to investigations or providing services, video tapes, photographs, or electron ic mails.

(12) "Severe child abuse" shall have the same meaning as set out in T.C.A. § 37-1 -102 (2016 and as

amended).

(13) "Substantiated" means the classification assigned to an individual determined to be a perpetrator of

abuse, severe child abuse, child sexual abuse, or neglect. The term substantiated also encompasses synonymous terms set out in rules, policy, and statute, including, but not limited to, "indicated", "founded", or other terms signifying the individual was determined to be the perpetrator of child abuse or neglect.

(14) "Unsubstantiated" means the classification assigned to an individual who is not determined to be a perpetrator of abuse, severe child abuse, child sexual abuse or neglect. The term unsubstantiated

encompasses synonymous terms set out in ru les, policy, and statute, including, but not limited to, "unfounded" or other terms signifying the individual has not been determined to be the perpetrator of chi ld

abuse or neg lect.

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, and 37-5-512(a).

Rule 0250-07-09-.02 Scope of Rules is amended by deleting the text of the rule and substituting instead the following language, so that, as amended, the rule shall read:

( 1)

(2)

These Rules shall apply to all indicated cases of child abuse/neglect.

These Rules establish procedures to review indicated cases and to release the identity and other related information of a perpetrator in "indicated" reports of abuse, severe child abuse, child sexual abuse, or neg lect to organizations or persons.

(3)

(4)

(5)

admin istration of Tenn. Code Ann. §§ 3i 1°~0~e;tlect a~~ ~~ ~urpose~ directly connected with the et-seq-,- seq., 0 et seq., 49 11101 et seq. and 71350-1-

Code Ann. §68 11 1004 (b)(2

) p · t oe ~e~a_rtment of Health 1n compliance with Tenn. administrative hearing pursua~t t:~~e~=~=~~elease, the ind1v1dual shall have the right to an

Th is ru le shall apply to any release of information t th D

These Ru les shall not apply when the Departm t · t d about an individual who is an alleged perp~trato~not'~::;: ~e-~eleas:-1:r hbas rele~sed any information neglect to any of the following: , vere c I a use, chi ld sexual abuse, or

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(i)

U)

any state(s) ~r federal law enforcement agency(ies) investigating a report of kno"'n or suspected child abuse or neglect or any crimes involving chi ldren; Ti

any st~te(s) Di_strict Attorney, . At~o~ney_ General, or United States Attorne '(s or thei authonz~d as~1stants, ?f the ~ud1c1al districts or agencies involved in inv~sti~ating or prosecuting crimes against children;

~.~t~r:~;~:L:i~e~~~~~~;~~~:rJ~;ytob~u:~~==~ju~;; presentation of evidence by the District

treatment professionals treating the ch ild, his or her fami ly, or the perpetrator;

in house requests by employees of the D rt t f

any court official, pro~ation counse_lo~, parole officer, designated emplo 'ee of an ,

to the court, admin!strative board or_ hearing, the officials or employees thereof in the P:~r~:n~e of their duties, the parties, or their legal representatives in any judicial or a m1n1s ra 1ve proceeding or before any board or h · ff" a ch ild _or chi ldren from phys;;alm ~evere child ab~-:~ngn:;i

1::; for t:~lurpose of protecting

except in such situation "'hen s h . . . , . , or c I sexual abuse, than the Department of Childre~~ ::~,~e~d~in1:~rad~vefheanng, board, ~r hearing officer, other

:~::: ::·~~ =~~~:~:. ~:=:~~f OF li~en~~d," i~G!~~:h ~i~:::o:i:'~~~A=~.:.~i~:~~~i:e earing o 1cer;

~:~:e~a:e ~f inf~;;tion to the Departments of Education or Human Services pursuant to : 0 e nnn. 7 5 512(~)(2) and (3) regarding an individual whe----is the s b.

ongoing or a completed investigation of abuse, severe chi ld abuse child sexua~d:ct of an ~:~,~~:!:.Y the Department may be released to the Departments of E'ducation and Hu::~ or

1. An_y further release of information by the Departments of Education or Human Sen'ices of a finding by the Department that an individual has been classified in an "indicat;d" report as a perpet~ator of abuse, severe chi ld abuse, child sexual abuse or ne lect shal l occur according to the procedures establ ished by these Rules.; or' g

~ni rele~se -~~ a foster care_ agency contractor of the Department for purposes of ermining v. hether a child in the Department's custody should be placed with an ind ividual.

(1) These Rules establish procedures to review substantiated cases and to release the identity and other related information of a perpetrator in substantiated reports of any form of abuse or neglect.

(2) A release pursuant to these Rules shall be for purposes of protecting children from any form of child abuse or neglect and for purposes directly connected with the admin istration ofT.C.A. §§ 37-1-401 et seq ., 37-1 -601 et seq., 49-1-1101 et seq., and 71 -3-501 et seq.

(3) These Rules sha ll not apply when the Department intends to release or has released records or information related to chi ld abuse or neglect to any of the following :

(a) Any state or federal law enforcement agency investigating a report of known or suspected child abuse or neglect or any crimes involving children;

(b) Any state District Attorney, Attorney General, or United States Attorney or their authorized assistant involved in investigating or prosecuting crimes against children ;

(c) Any state or federal grand jury by subpoena or presentation of evidence by the District Attorney or United States Attorney to such grand jury;

(d) Treatment professionals treating the ch ild, his or her family, or the perpetrator;

(e) Department employees for purposes consistent with enforcement of the chi ld abuse and neglect or child welfare licensing laws, including disclosure to other individuals for authorized purposes;

(f) Any state or federal social service or other agency investigating cases of chi ld abuse or neglect or providing treatment or care for alleged or known victims of child abuse or neglect;

(g) Any court official , probation counselor, parole officer, designated employee of any Department of Correction or other similarly situated individual charged with preparing information to be presented in any administrative or judicial proceeding concerning any individual charged with or convicted of any offense involving child abuse, chi ld sexual abuse, or neglect;

(h) The court, administrative board or hearing, the officials or employees thereof in the performance of their duties, the parties, or their legal representatives in any judicial or administrative proceeding or before any board or hearing officer for the purpose of protecting a child or ch ildren from any form of abuse or neg lect, except when such court, administrative hearing, board, or hearing officer, other than the Department, is adjudicating a case affecting the perpetrator's ability to remain or become employed or licensed, in which situation such information shall be released only by order of the court or hearing officer;

(i) The Department of Education and the Department of Human Services pursuant to T.C.A. §§ 37-5-512(a)(2) and (3) (2016 and as amended) regarding an individual who is the subject of an ongoing or completed investigation;

U) A foster care agency contractor to determine if an individual is a suitable placement for a DCS custodial child;

(k) The Department of Intellectual and Developmental Disabilities, the Department of Mental Health and Substance Abuse Services, or any other department of state government with whom the Department has developed an appropriate Memorandum of Understanding;

(I) An agency for the purposes of complying with the Department's employee and contractor background check policies;

(m) An adoption and child placing agency for the purpose of complying with Hague Accreditation Standards;

(n) An out-of-state entity for the purpose of complying with Adam Walsh Ch ild Protection and Safety Act or other applicable federal or state law;

(o) An out-of-state entity for the purpose of determining whether a placement is suitable for a ch ild pursuant to the Interstate Compact for the Placement of Children;

(p) An agency for the purposes of determining whether a kinship care placement is appropriate; or

(q) Any agency or entity that is provided access under state or federal law.

Authority: TC.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, and 37-5-512(a) .

Rule 0250-07-09-.03, currently Prohibited Releases, is amended so that the title of the rule shall now be Release to Covered Educational Entities. Additionally, Rule 0250-07-09-.03 is amended by deleting the text of the Rule and substituting instead the following language, so that, as amended, the Rule shall read:

0250 07 09 .03 Prohibited Releases

(1) Any report of abuse, severe child abuse, chi ld sexual abuse, or neglect is confidential pursuant to Tenn. Code Ann . §§37 1 409(a)(1) and 37 1 609(a) .

(2) Any unauthorized release of a report of abuse, severe child abuse, child sexual abuse, or neglect constitutes a class B misdemeanor.

~ Until the affected individual has exhausted all reviews permitted by these Rules, the Department shall not release any information from its records to any organization or person for purposes of pre employment screening or licensing, to identify any individual as a perpetrator abuse, severe child abuse, ch ild sexual abuse, or neglect.

(4) Until the affected ind ividual has exhausted all revie1.vs permitted by these Rules, the Department shall not release any information from its records to identify any ind ividual as a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect to any organization or person that requests this information for purposes of routine or random screening of current employees, volunteers, or associates.

(5) If the Department does not begin procedures to release the identity and other related information of a perpetrator in an "ind icated" report of abuse, severe child abuse, child sexual abuse, or neglect with in two years of the initial classification, the Department shall not release any information as to that report. This provision shal l not, hmvever, require expunction of this information from the Department's internal records.

0250-07-09-. 03 Release to Covered Educational Entities

(1) Th is Rule shall apply on ly to child abuse and neglect investigation information mandated by TC.A § 49-5-413(e) (2016 and as amended) to be re leased to Covered Educational Entities relative to a Covered Individual , in wh ich case this ru le's procedures apply notwithstanding any language to the contrary contained elsewhere within these ru les.

(2) The Department shall offer the due process procedures set out in Rule 0250-07-09-.05(1 ), including the opportun ity for a hearing pursuant to Rule 0250-07-09-.09, to any Covered Individual who has ever been found by the Department to have committed any form of child abuse or neglect and who has not previously waived or exhausted his or her due process rights to a hearing . When the Covered Individual's due process rights have been wa ived or fully concluded, the Department shall disclose its final finding to any relevant Covered Educational Entity.

(3) In the case of any Covered Individual whose investigation has not been concluded or any Covered Individual whose due process rights have not yet been offered or are otherwise pending, the Department shal l conduct an emergency file review pursuant to Ru le 0250-07-09-.08. If the emergency file review resu lts in a find ing that the Covered Individual poses an immediate threat to the health, safety, or welfare of children, the Department shall disclose that threat to the re levant Covered Educational Entity.

(4) If the Department's proceedings under these ru les have been stayed pursuant to Rule 0250-07-09-.10 due to pending criminal charges against a Covered Individual, the Department shall notify the Covered Educational Entity of the pending criminal charge.

Authority: TC.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, 37-5-512(a), and 49-5-413(e).

Rule 0250-07-09-.04, currently When Rights Under this Chapter Attach, is amended so that the title of the Rule shall now be Prohibited Releases . Additionally, Rule 0250-07-09-.04 is amended by deleting the text of the Rule and substituting instead the following language, so that, as amended, the Rule shall read:

0250 07 09 .04 When Rights Under this Chapter ,A.ttach

( 1)

(2)

An individual whom the Department has classified in an "indicated" report as a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect shall have the right to a formal file review and to a hearing under these Rules if:

(a)

(b)

The Department intends to or shall release the individual's name under the emergency procedures of Rule 0250 07 09 .11 to any organization or person; or

The Department intends to or shall release the individual's name in non emergency­situations to any organization or person.

An individual whom the Department has classified in an "ind icated" report as a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect and whose identity shall be placed in the Department's registry of perpetrators of abuse or neglect shall only have the right to a formal file review under these Rules.

(a)

(b)

This paragraph applies when the Department will not identify or does not intend to identify to any organ ization or person in Rules that it has classified an individual in an "indicated" report as a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect.

If after an ind ividual exhausts the formal file review afforded by paragraph 2 of this Rule, and if within the tv.io year period from the date of the initial classification of the report the Department intends to identify to any organization or person that it has classified the individual in an "indicated" report as a perpetrator of abuse, severe ch ild abuse, ch ild sexual abuse, or neglect, the Department shall not release this information unless the individual is afforded the right to a hearing under Rule 0250 07 09.07. The Department shall insure that the individual is notified in accordance with these Rules.

0250-07-09-.04 Prohibited Releases

(1) Any report of abuse or neglect is confidential pursuant to T.C.A. §§ 37-1-409(a)(1), 37-1-612(a) , and 37-5-107 (2016 and as amended) .

(2) Any unauthorized release of a report of abuse, severe ch ild abuse, child sexual abuse, or neglect constitutes a class B misdemeanor.

(3) Until an individual has exhausted all reviews, excluding the review set out in Rule 0250-07-09-.12, permitted by these Rules, the Department shall not re lease any information from its records to any organization or person for purposes of pre-employment screening or licensing , to identify the individual as a perpetrator of any form of abuse or neglect, unless such disclosure is necessary to comply with T.C.A. § 49-5-413(e) (2016 and as amended) or other applicable law.

(4) Unti l an ind ividual has exhausted all reviews permitted by these Rules , excluding the review set out in Rule 0250-07-09-.12 , the Department shall not re lease any information from its records to identify the individual as a perpetrator of any form of abuse or neglect to any organ ization or person that requests th is information for purposes of routine or random screen ing of current employees, volunteers, or associates.

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, 37-5-512(a) , and 49-5-413(e).

Rule 0250-07-09-.05, currently Standard and Criteria for Review of Classification of Reports of child Abuse/Neglect as "Indicated", is amended so that the title of the Rule shall now be When Rights Under this Chapter Attach. Additionally, Rule 0250-07-09-.05 is amended by deleting the text of the Rule and substituting instead the following language, so that, as amended, the Rule shall read:

G250 07 09 .05 Standard and Criteria for Review of Classification of Reports in child Abuse/Neglect as "Indicated"

fB- A report made against an alleged perpetrator shall be classified as "indicated" if the preponderance of the evidence, in light of the entire record, proves that the individual committed abuse, severe-G-Rikl abuse, child sexual abuse, or neglect. Proof of one or more of the follm.'ling factors, linking the abusive act(s) to the alleged perpetrator, may constitute a preponderance of the evidence:

(a) Medical and/or psychological information from a licensed physician, medical center, or other treatment professional, that substantiates that physical abuse, sexual abuse, or severe pA-ysical abuse occurred;

(b) An admission by the perpetrator;

(G}- The statement of a credible 'Nitness or witnesses to the abusive or neg lectful act;

(d) The child victim's statement that the abuse occurred;

(e) Physiological indicators or signs of abuse or neglect, including, but not limited to, cuts, bruises, burns, broken bones or medically diagnosed physical conditions;

(f) Physica l evidence that could impact the classification decision :

(g) The existence of behavioral patterns that may be indicative of child abuse/neglect and corroborates other evidence of abuse, severe chi ld abuse, chi ld sexual abuse, or neglect should be examined;

(h) The existence of circumstantial evidence linking the alleged perpetrator to the abusive or neglectful act(s) (e.g., chi ld was in care of the alleged perpetrator at the time the abuse occurred and no other reasonable explanation of the cause of the abuse exists in the record) .

0250-07-09-. 05 When Rights Under this Chapter Attach

(1) An individual whom the Department has classified in a substantiated report as a perpetrator of any form of abuse or neglect shall have the right to request a formal fi le review.

(2) If at the conclusion of the formal file review the substantiation is upheld, with or without modification, the individual shal l have the right to request an administrative hearing . An individual who fails to request a forma l fi le review after proper notice waives their right to an admin istrative hearing .

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, and 37-5-512(a) .

Rule 0250-07-09-.06, currently Right to Notice and Opportunity for Formal File Review, is amended so that the title of the Rule shall now be Standard and Criteria for Review of Classification of Reports of Child Abuse/Neglect as "Substantiated". Additionally, Rule 0250-07-09-.06 is amended by deleting the text of the Rule and substituting instead the following language, so that, as amended, the Rule shall read :

0250 07 09 .06 Right to Notice and Opportun ity for Formal File Review

( 1)

(2)

(3)

(4)

Within 10 business days after the Department has classified an individual in an "indicated" report as a perpetrator of abuse, severe ch ild abuse, child sexual abuse, or neglect, the Department shall notify the individual, in writing at the individual's last known address, of the classification and shall inform the individual that he or she may request a formal file revie'N by the Commissioner's designee to determine whether the report has been properly classified as "indicated."

If the indicated perpetrator in the classified report is a minor, the Department shall notify the minor, the chi ld's parent or guardian, Chi ld Protective Services, Regional General Counsel , and any Guardian Ad Litem or other attorney for the child . The parent, guardian, Guardian Ad Litem, or the child 's attorney may request a formal file review on the minor's behalf.

The Department shall determine whether the emergency procedures of Rule 0250 07 09 .11 apply to the ind ividual whom the Department has classified as the perpetrator of abuse, severe child abuse, child sexual abuse, or neglect in an "indicated" report,

The notice to obtain a formal fi le review shall contain, at a minimum, the following :

(5)

(6)

(7)

(8)

(9)

(a)

(b)

(c)

(d)

(e)

. . he er etrator of abuse, severe child abuse, child That the individual has b~en cl.~s~1_f1e:e:~ ~pd:t i:vestigated by the Department;

I b or neglect m an IA ica

sexua a use, . . r's designee within 10 1 fl e' 'ie"' by the Comm1ss1one l

That the individual may request a :orm(~he1 ::ie"ot'[he notice must reflect the actual ma1 ing business days of the date of the no ice

<lateh · Oavs absent a showing · t bmit a request for a formal

8"n n . f I and the individual s a wai',

I fl re"ie"' "'ithin 10 bus1nessy , h II . 'e That fa ilure o su It . the classified report becoming ma of good cause, shall resu i_n any right to a formal file review;

b ·tted to State of Tennessee . That the request for a formal ~ile re~=~~ s~:~~e~~iv~uS~~ices Division , Formal Fi le Review, Department of Children's ~er.~:;s,N rt~ Nashville, Tennessee, 37243; and Cordell Hull Bui lding, 436 Sixth' n.e. o , hild or children

. t tion or treatment to a c . . ''d e supervision, ms rue . ~ ,, · pact on the = !:a~i::;~~a~~::.;:v~~:t'rlh,e fo;;,,a l file t~:ii~~i~:::1'~~s~=~a~~h:.:nt;.;ight to an . . , , t and that, m th is case, ind1v1dual s emplo't~en ' d R le 0250 07 09 .07. administrative hearing un er u ." d

f f al fi le revie'NS on the date rece1.e . ment shall date stamp all requests or -Orm . . .

The Depart I a formal lite review w1th1n 1Q business The Department shall respond to a/imert:~e~~~~uu~~~ ~~ligations pursuant to a formal file review days of receipt by sending ''.vntten ~o icle doe at a minimum, the following :

Th. dditional notice sha me u ·

process.is a b ·t add·1t·1onal "'Fitten or (a)

(b)

(c)

(d)

. d .. d al may su m1 . .. o . That pursuant to the Departm~nt's Rul~s ~ha~f1:o ~~1e~ddre~s identified in paragraph 3(d) of this documentary information on his or her e

Rulei . . . JQ business Oays ol the Oate That the 1nd1v1dual mus s . . . t ubmit the additional information w1th1n

of the notice; d "'ith the

. f rmal file review shall procee ".' . That if the informatio~ is not _timely s~h~~1tt~~din~i~i:Ua1's right to submit additional information information provided in the file and shall be waived ; and

That the formal file business days of the date of the review shall be completed within 90

AGtisec · the 1Q business Oay poriOG-ffi ures in Ru le 0250 07 09 .07 apply, during hall not disclose that the

Unless the emorgensy proseO uest a format file review, the Departm~~! :buse shi lO sexual abuse, wh ish an inOiviOual ~aysi;.,~ as the perpetrator ol abuse, se~e~ ~ ~et Oissl~so any Ootails about in01v10ual has be:_n: a~ O" report. In aOOition, the _Departmen .~ a shitO abuse, shilO sexual abuse, or neglect in an in ica e , I ' onfirm that a child abuse, severe the case. The Depa_rtment ma't on 't c

or neglect investigation has commenced . determine whether the

. ,,- .., the Commissioner's desi~n~e shall In conducting the formal f1I~ re. ie,O. 250 07 09 05 have been sat1sf1ed.

. t dards set forth m Ru le . eviOont,ary s-an- - - - - .

19 Q<SQ g

7 gg .Q5 are not mot, the

. determines that the standards m R~ artment shall not release II the Commissioner's Oes1g;ei9shall be slassifieO as "not inOisateO.' Tho ~':.':.use severe shilO abuse, report shall be reverseO a: 'ioentifying the inOiviOuat as a perpetra~r oo te req~ire the expunstion ol information from its recor f t Nothing in these rules shall be cons rue

Within 1Q business Oays ol_ the . as, re ort ol abuse, severe sh119 abuse, s , ~inimum, the individual who was class1f1ed in ~., p ddress written notice conta1n1ng, at a or-Aeglect at his or her last knonn a

child sexual abuse, or ~eg -8:d b , the Department.

internal sase recof-Os ma1nta1n Y . ,, ,,, th Department shall senO to the

d t of the formal file revleu, 8. h"ld exua l abuse, (a)

~~ · ...1: t d"· and - ------+.---tt-r:i-he8-flfoilfrttm-ti::att-l -ttfirc::le.,r-,.,e~vfew has class1 ie 1. . T d the report as "not tnu1ca e ,

(10)

( 11)

2. the Department will not release information from its records identifying the individual as a perpetrator of abuse, severe chi ld abuse, child sexual abuse, or neglect.

If the Commissioner's designee determines that the proof in the report supports a different conclusion than that reached by the Department, the report shal l be modified and it shall be classified accordingly. The Commissioner shall notify the ind ividua l in accordance 1Nith paragraphs 8 or 1 0 of this Ru le.

If the Commissioner's designee determines that the standards in Ru le 0250 07 09 .05 are met, the report shall be upheld and it shall be classified as "indicated ."

(a)

(b)

Vl/ithin 10 business days of the date of the formal file review, the Department sha ll send to the ffiE!ividual who was classified in a report of abuse, severe child abuse, child sexual abuse, or neglect at his or her last known address written notice containing, at a minimum, the folloi.ving :

1.

2.

That the individual has been identified as the perpetrator of abuse, severe chi ld abuse, chi ld sexual abuse, or neglect in an "indicated" report investigated by the Department; aRtl

That, after conducting a formal file reviev.i, the "indicated" report was upheld.

The notice in this paragraph shall also contain, at a minimum, the followi~

1.

2.

3.

4.

That, if the individual meets the standards for an administrative hearing pursuant to 0250 07 09 .08, the individual may request a hearing within 10 business days of the date- of the notice before an administrative law judge by fil ling out an attached request for administrative hearing;

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 ;

That, if the individual fa ils to timely request a hearing absent good cause, he or she shall waive the right to an admin istrative hearing; and

That, if the individual fai ls 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.

0250-07-09-.06 Standard and Criteria for Review of Classification of Reports of Child Abuse/Neg lect as

"Substantiated"

A report made against an al leged perpetrator shall be classified as substantiated if the preponderance of the evidence, in light of the entire record, proves that the individua l committed any form of abuse or neg lect. In

determin ing whether there is a preponderance of the evidence to uphold the substantiation, the rev iewer may consider, but is not limited to, the following factors :

(1) Medical and/or psychological information from a licensed physic ian, medical center, or other treatment professional, that substantiates that abuse or neg lect occurred ;

(2) An admission by the perpetrator;

(3) The statement of a cred ible witness or witnesses to the abusive or neg lectful act;

(4) The chi ld victim's statement that the abuse or neg lect occurred;

(5) Physiological indicators or signs of abuse or neg lect, including, but not limited to, cuts, bruises, burns, broken bones or medica lly diagnosed physical cond itions;

(6) Physical evidence that could impact the classification decision;

(7) The existence of behavioral patterns that may be ind icative of ch ild abuse or neg lect and corroborate other evidence of any form of abuse or neg lect;

(8) Circumstantial evidence linking the alleged perpetrator to the abusive or neglectful act(s) (e.g., child was in care of the alleged perpetrator at the time the abuse occurred and no other reasonable explanation of the cause of the abuse exists in the record).

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, and 37-5-512(a).

Rule 0250-07-09-.07, currently Alleged Perpetrators with Current Access to Children; Emergency Notification, is amended so that the title of the Rule shall now be Right to Notice and Opportunity for Formal File Review. Additionally, Rule 0250-07-09-.07 is amended by deleting the text of the rule and substituting instead the following language, so that, as amended, the Rule shall read:

0250 07 09 .07 Alleged Perpetrators with Current Access to Children; Emergency Notification

( 1)

(2)

(3)

(4)

(5)

(6)

The provisions of th is Rule apply to individuals classified as perpetrators of abuse, severe ch ild abuse, child sexual abuse, or neglect in an "indicated" report who pose an immediate threat to the health, safety, or welfare of a child or children to whom the alleged perpetrator has access.

As soon as reasonably possible after the Department has investigated and identified an individual in an "indicated" report as a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect, who poses an immediate threat to the health, safety or 1.velfare of a child or children to whom the alleged perpetrator has access, the Department shall conduct an emergency file review in accordance with this rule.

The Commissioner's designee shall determine: (1) Whether the indication should be upheld; and (2) VVhether there is an immediate threat to the health , safety, or welfare of a child or children to whom the alleged perpetrator has access.

(a)

(b)

If both factors are met, the Department shall then follow the procedures set forth in paragraphs (4) , (5) and (6) of this Rule.

If no such immediate threat exists, the Department shall not reveal the alleged perpetrator's identity.

As soon as reasonably possible after the Commissioner's designee has determined that an immediate threat to the health, safety, or welfare of a child or chi ldren to whom the alleged perpetrator has access exists, the Department shall notify in writing both the alleged perpetrator and the organization or person with whom the individual is associated identified of such immediate threat.

(a)

(b)

The notice shall contain the information set forth in Rule 0250 07 09 .06(10)(b) ; and

A statement that the organization or person with 1.vhich the individual is associated shall receive notice of the Department's determination.

1. The notice shall also contain the following:

(i)

(ii)

that the organization or person shall ensure that the individual is not a threat to the safety of any child in their care; and

that the individual has been notified of his or her rights to a hearing on the allegations, and that the organ ization or person shall be notified of the final decision regard ing the allegations.

If the ind ividual fails timely to request a hearing absent good cause, the individual shall waive his or her right to a hearing. The Department's "indicated" report regard ing the individual shall then be available for dissemination to any organization or individual and the individual's identity shal l be placed in the registry.

If the individual timely requests a hearing, the Department shall fol low the procedures set forth in Ru le 0250 07 09 .08(4) .

0250-07-09-.07 Right to Notice and Opportun ity for Formal Fi le 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, Chi ld 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 Ru le 0250-07-09-.07(4) since the formal file review shall be automatic. The Department shall notify the minor perpetrator of the opportun ity 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, chi ld 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 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 shal l 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 fi le 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 ind ividual's obligations pursuant to a formal file review process. This add itiona l notice shall include, at a minimum, the fo llowing :

(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 with in 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 Ru le 0250-07-09-.08 apply, during the twenty (20) business day period in which an ind ividual 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, ch ild sexual abuse, or

neglect in a substantiated report. In addition, the Department shall not disclose any details about the cas~. The Department may only confirm that a ch ild abuse, severe child abuse, chi ld 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 avai lable 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 shal l be reversed and it shal l be classified as unsubstantiated. The Department shall not re lease information from its records identifying the ind ividual 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 :

(10)

( 11)

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

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

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 shal l notify the individual of the outcome.

If the Commissioner's designee determines that a preponderance of the evidence supports substantiation, t he report shall be upheld and it shal l 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 fol lowing :

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

(b) That, after conducting a formal fi le 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.

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, and 37-5-512(a) .

Rule 0250-07-09-.08, currently Right to Notice and Opportunity for Administrative Hearing, is amended so that the title of the Rule shall now be Alleged Perpetrators with Current Access to Children; Emergency Notification. Additionally, Rule 0250-07-09-.08 is amended by deleting the text of the rule and substituting instead the following language, so that, as amended, the Rule shall read:

0250 07 09 .08 Right to Notice and Opportunity for Administrative Hearing

( 1)

(3)

(4)

(5)

(6)

An individual whom the Department has classified in an "indicated" report as a perpetrator of abuse, severe chi ld abuse, chi ld sexual abuse, or neglect and 1.vhose c lassification has been upheld pursuant to- a formal fi le review may-request an administrative hearing before a hearing officer of the Adm-iflistrative Procedures Division of the Department if the Department is going to release information or if the ind ication will affect their employment or any professiona l license.

An individua l shall request an administrative hearing within 10 business days from the date of the notice of the outcome of the formal fi le review. A request for a hearing submitted before a case file review has been completed shall be invalid .

Unless the emergency procedures in Rule 0250 07 09 .07 apply, during the 10 business day period in which an individual may request a hearing, the Department shall not disclose that the individual has been classified as the perpetrator of abuse, severe chi ld abuse, chi ld sexual abuse, or neglect in an "indicated" report. In addition , the Department shal l not disclose any details about the case. The Department may only confirm that a child abuse, severe child abuse, chi ld sexual abuse, or neglect investigation has commenced.

(a) If the individual timely requests a hearing , the Department may on ly re lease a statement stating that a hearing concern ing the individual pursuant to the chi ld abuse laws of th is State is currently pending.

· If the individual timely requests a hearing, the Department shall schedu le a hearing and give the individual adequate notice of the hearing, as provided by Ru les 1360 4 1.

(a) The hearing wil l be held, and an initial order entered therein, within 90 business days of the date of the notice required in Rule 0250 07 09 .06(10), unless:

1.

2.

the time limit is extended or waived by agreement of the parties, or for good cause shown; or

the proceedings are stayed pursuant to Rule 0250 07 09 .09.

If the individual fails timely to request a hearing, the individual shall wa ive his or her right to a hearing. The Department's "indicated" report regarding the ind ividual shall be then be available for dissemination to any organization or person with 1.vhom the ind ividual is associated and the ind ividual 's identity sha ll be placed in the reg istry.

An individual who fai ls timely to request a hearing may be granted a hearing provided that he or she shows good cause for his or her failure to make a timely request.

(a) Good cause is limited to a fai lure to receive the notice referred to in Rule 0250 07 09.06(10), severe illness, or some other circumstance that substantially prevented the individual from timely requesting a hearing .

0250-07-09-.08 Alleged Perpetrators with Current Access to Children; Emergency Notification

(1) The provisions of this Rule apply to individuals classified as perpetrators of any form of abuse or neglect in a substantiated report who pose an immediate threat to the health, safety, or welfare of a child or

ch ildren to whom the alleged perpetrator has access.

(2) As soon as reasonably possible, the Commissioner's designee shall conduct an emergency file review to determine if an individual identified in a substantiated report as a perpetrator of any form of abuse or neg lect poses an immediate threat to the health, safety, or welfare of a chi ld or chi ldren to whom the individual has access.

(3) In completing an emergency file review, the Commissioner's designee shal l determine whether the substantiated report should be upheld , and whether there is an immediate threat to the health, safety, or welfare of a child or chi ldren to whom the alleged perpetrator has access.

(a) If both factors are met, the Department shall then follow the procedures set forth in paragraphs

(4), (5) and (6) of th is Rule.

(b) If no such immediate threat exists, the Department shall not immediately reveal the alleged perpetrator's identity.

(4) As soon as reasonably possible, the Department shall notify in writing both the alleged perpetrator and the organization or person with whom the individual is associated , if the Commissioner's designee determines the alleged perpetrator poses an immediate threat to the health, safety, or welfare of a child or children to whom the individual has access.

(a) The notice shall contain the information set forth in Rule 0250-07-09-.07(11 ); and

(b) A statement that the organization or person with which the individua l is associated shall receive notice of the Department's determination. The notice shall contain the following :

1. That the organization or person shall ensure that the individual is not a threat to the safety of any child in their care; and

2. That the individual has been notified of his or her rights to a hearing on the allegations, and that the organization or person shall be notified of the final decision regarding the allegations.

(5) If the individua l fails timely to request a hearing absent good cause, the individual shall waive his or her right to a hearing. The Department's substantiated report regarding the individual shall then be available for dissemination, in accordance with these rules, to any associated organization or associated person and the ind ividua l's identity shall be placed in the registry. The Department must receive the request for a hearing within the time frame set out in Rule 0250-07-09-.09(2) for the request to be considered timely.

(6) If the individua l timely requests a hearing, pursuant to Rule 0250-07-09-.09(2), the Department shall follow the procedures set forth in Rule 0250-07-09-.09(4) .

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, and 37-5-512(a) .

Rule 0250-07-09-.09, currently Stay of Administrative Proceedings, is amended so that the title of the Rule shall now be Right to Notice and Opportunity for Administrative Hearing. Additionally, Rule 0250-07-09-.09 is amended by deleting the text of the Rule and substituting instead the following language, so that, as amended, the Rule shall read:

0250 07 09 .09 Stay of Administrative Proceedings

(1)

(2)

The Department shall stay all administrative proceedings under these Rules:

(a)

(b)

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

if an individual whom the Department has classified in an "indicated" report as a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect is the subject of other administrative or civil proceed ings that are derived from the same allegations that caused the Department to investigate.

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 .06, 0250 07 09 .07, or 0250 07 09 .08, 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 revie1.v. During the stay, unless the emergency procedures in Rule 0250 07 09 .07 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 an "indicated" report until the proceedings referred to in paragraph 1 of this Rule become final. The Department may only release the fact that judicial or aGrllinistrative proceedings involving allegations of abuse, severe child abuse, child sexual abuse, or

(3)

(4)

(5)

neglect by the individual are pending before a specified court or administrative proceeding.

If a criminal prosecutiGA- results in a conviction or gui lty plea for any offense listed in Tenn. Code Ann~ §37 1 602(a)(3) , or for any act which would constitute physical abuse, sexual abuse, or severe physical abuse as defined in Tenn. Code Ann. §37 1 102(21 ), or if the individual is found guilty or pleads guilty to any lesser offense derived from the offenses or acts alleged under Tenn. Code Ann. §37 1 602(a)(3) or Tenn. Code Ann. §37 1 102(21 ), or if 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 which would constitute physical abuse, sexual abuse, or severe physical abuse, as defined in Tenn. Code Ann. §37 1 102(21 ) or any act which constitutes chi ld sexual abuse as defined in Tenn. Code Ann . §37 1 602(a)(3), then such conviction and/or adjudication will be conclusive evidence that the individual is the perpetrator classified in the "indicated" report and the individual will have no right to a hearing provided for in 0250 07 09 .08 in regard to that particular report. In this event, the Department may release information about the perpetrator as permitted under these Rules.

(a) If the criminal, civil or administrative proceeding does not resu lt in a conviction or in a finding as specified in paragraph 3 of this Rule, includ ing pretrial diversion, this fact shall be admissible in the Department's administrative hearing, but shall not be conclusive on the issue of whether the report is properly classified as "indicated."

If admin istrative proceedings were stayed pursuant to this Rule, they shall resume at the point at wh ich they were stayed if the al leged perpetrator so requests in writing to Tennessee Department of Children 's Services, Case File Review, 8th Floor, Cordell Hull Bui lding, Chi ld Protect Services, 436 6th Ave. N., Nashville, Tennessee 37243, within 30 days of entry of a final order by a court or other administrative body favorably disposing of the issue of child abuse involving the al leged 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 indicated report and information regard ing the perpetrator will be released as permitted under these Ru les.

Unless the individual has waived his or her rights to a formal file review or to an administrative hearing by fai ling timely to request same, if administrative proceedings have been stayed, the Department shall notify in writing the ind ividual as follows:

(a)

(b)

(c)

That administrative proceedings have been stayed pend ing the final outcome of judicial or other administrative proceedings concerning allegations of child abuse involving the individual;

that the administrative proceedings under these rules will be reinstituted at the point they were stayed only if the individual requests such in writing to the local office of the Department which issued the original notice within 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 verd ict is a conviction or gui lty plea as specified in paragraph (3) above);

if the individual fails timely to make such a written request, he or she sha ll waive his or her rights to an administrative hearing in regard to the report.

0250-07-09-.09 Right to Notice and Opportun ity for Administrative Hearing

(1) An individual whom the Department has classified in a substantiated report as a perpetrator of any form of abuse or neglect and whose classification has been upheld pursuant to a formal file review may request an administrative hearing before an administrative judge of the Administrative Procedures Division of the Department.

(2) An individual shall request an administrative hearing within twenty (20) business days from the date of the notice of the outcome of the formal fi le review. The Department must receive the request for an administrative hearing by the twentieth (20th

) business day for the request to be considered timely.

(3) 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 hearing, the Department shall not disclose that the individual has been classified as the perpetrator of any form of 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 an investigation involving chi ld abuse or neglect has commenced. If the individual timely requests a hearing, the Department may only release a statement stating that a hearing concern ing the individual pursuant to the child abuse laws of this State is currently pending .

(4) If the individual timely requests a hearing, the Department shall schedule a hearing and give the individual adequate notice of the hearing, as provided by Rule 0250-05-04-.01 .

(5) The hearing will be held , and an initial order entered therein , within one hundred twenty (120) business days of the date of the notice required in Rule 0250-07-09-.07( 11 ), unless:

(a) The time limit is extended or waived by agreement of the parties, or for good cause shown ; or

(b) The proceedings are stayed pursuant to Rule 0250-07-09-.10.

(6) If the individual fails to timely request a hearing absent good cause, the individual shall waive his or her right to a hearing. The Department's substantiated report regarding the individual shall then be available for dissemination, in accordance with these rules, to any associated organization or associated individual and the individual's identity as a substantiated perpetrator shall be placed in the registry.

(7) An individual who fails to timely request a hearing may be granted a hearing provided that he or she shows good cause for failure to make a timely request.

(8) Good cause is limited to a failure to receive the notice referred to in Rule 0250-07-09.07(11 ), severe illness, or some other circumstance that substantially prevented the individual from timely requesting a hearing .

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, and 37-5-512(a) .

Rule 0250-07-09-.10, currently Conduct of Administrative Hearing, is amended so that the title of the Rule shall now be Stay of Administrative Proceedings. Additionally, Rule 0250-07-09-.10 is amended by deleting the text of the Rule and substituting instead the following language, so that, as amended, the Rule shall read:

0250 07 09 .10 Conduct of Administrative Hearing

( 1)

(2)

(3)

(4)

(5)

The hearing provided for in 0250 07 09 .08 will be conducted in accordance with the provisions of the Uniform Administrative Procedures Act and of Rule 0250 5 6.

In hearings pursuant to 0250 07 09 .08, the sole issue for the hearing officer is to determine whether the preponderance of the evidence, in light of the entire record , proves that the individual committed abuse, severe child abuse, child sexual abuse, or neglect. In making this determination, the hearing officer shall consider whatever relevant and admissible proof the individual offers that the report is not properly classified as indicated and shall further consider any competent and admissible proof concerning the dynamics of child abuse relevant to whether the classification is proper.

Unless the emergency procedures in Rule 0250 07 09 .07 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 an "indicated" report until the individual has exhausted all of his or her appeal rights under these Rules, including judicial review of a final order by the Department. The Department may only release the fact that a hearing concerning the individual pursuant to the child abuse laws of the State is pending .

If the Department, or a court of competent jurisdiction in the event of judicial review, concludes that the standards in Rule 0250 07 09 .05 are not met, the report shall be classified as "not indicated." 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.

(a) If the Department had previously disclosed that an individual was under investigation under the child abuse laws of this State, the Department shall forthwith notify that organization or person that the report was "not indicated." Nothing in this rule shall be construed to require the expunction of any information from internal case records maintained by the Department.

If the Individual is dissatisfied with the decision of the Department, a Petition for Reconsideratioo-e-f the Final Order may be filed within fifteen (15) days from the date of the Order. Further, the individual may petition for reviev.1 in the Chancery Court of his/her county of residence or in Davidson County

within sixty (60) days of the date of this order.

0250-07-09-.1 0 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, ind ictment, 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 fi le review or to an administrative hearing by fa il ing 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 proceed ings have been stayed pending the final outcome of judicial or other administrative proceedings concerning allegations of chi ld abuse involving the individual;

(b) That the ind ividual 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 w ithin thirty (30) days of the entry of a final order by the court or admin istrative tribunal or verd ict by a crim inal court (un less the order or verdict is a conviction or guilty plea as specified in paragraph (3) above);

(c) If the individual fai ls 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 neg lect.

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, and 37-5-512(a).

Rule 0250-07-09-.11, currently Evidence; Standard of Proof at the Administrative Hearing, is amended so that the title of the Rule shall now be Conduct of Administrative Hearing . Additionally, Rule 0250-07-09-.11 is amended by deleting the text of the rule and substituting instead the following language, so that, as amended, the Rule shall read:

0250 07 09 .11 Evidence; Standard of Proof at the Administrative Hearing

( 1)

(2)

(3)

J\,dmissibility of evidence in hearings pursuant to 0250 07 09 .08 is governed by the provisions of Tenn. Code Ann. §4 5 313. Provided, however, that "evidence admissible in a court" shall, for purposes of hearings pursuant to this chapter, refer also to evidence admissible in any juvenile court of this state. Provided further that the evidentiary provisions of Title 24, Chapter 7, Part I of the Tennessee Code Annotated and Tenn. Code Ann. §§37 1 401 et seq. and 37 1 601 et seq ., including the use of videotape testimony, shall be applicable to such hearings.

An individual will be indicated as the perpetrator of abuse, severe chi ld abuse, child sexual abuse, or neglect on ly after the case is proven by a preponderance of the evidence.

Follmving final resolution of the case, whether by administrative hearing, court order, or waiver by the alleged perpetrator, the Department shall promptly notify of its decision the organization or person with whom the ind ividual is associated of its decision.

(a)

(b)

If the classification of the report as "indicated" is upheld, the organization or person shall continue to assure that the individual is not a threat to the safety of any chi ld in their care, and the notice shall so state .

If the classification of the report as "indicated" is reversed , the organization or person will be promptly notified of the reversal of the indication and will not be required to assure that the individual is not a threat to the safety of any child in thei r care, and the notice shall so state.

0250-07-09-.11 Conduct of Administrative Hearing

(1) The administrative hearing will be conducted in accordance with the provisions of the Uniform Administrative Procedures Act and of Ru le 0250-05-06.

(2) The sole issue for the administrative judge to determine is whether the preponderance of the evidence, in light of the entire record, proves that the individual committed any form of abuse or neglect.

(3) Unless the emergency procedures in Ru le 0250-07-09-.08 apply, the Department shall not disclose that the individual has been classified as the perpetrator of any form of abuse or neglect in a substantiated

report until the individual has exhausted all of his or her appeal rights under these Rules, including judicial review of a final order by the Department. The Department may only release the fact that a hearing concerning the individual pursuant to the child abuse laws of the State is pending .

(4) If the administrative judge concludes that a preponderance of the evidence does not support a conclusion that the individual committed the act of abuse or neglect, or if a reviewing court reverses a departmental determination of abuse or neglect, the report shall be classified as unsubstantiated. The Department shall not re lease information from its records identifying the individual as a perpetrator of any form of abuse or neglect. If the Department had previously disclosed to any organization or person that an individual was under investigation under the child abuse laws of Tennessee, the Department shall immediately notify that organization or person that the report was unsubstantiated . Nothing in this rule shall be construed to require expunction of any information from internal case records maintained by the Department.

(5) The decision of the administrative law judge may be appealed in accordance with the Uniform Administrative Procedures Act.

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, and 37-5-512(a).

Rule 0250-07-09-.12 currently Reserved is amended so that the title of the rule shall now be Child Abuse Registry Review Committee. Additionally, rule 0250-07-09-.12 is amended by deleting the text of the rule and substituting instead the following language, so that, as amended, the rule shall read :

0250 07 09 .12 Reserved

0250-07-09-.12 Child Abuse Registry Review Committee

(1) An individual who has been determined to be a perpetrator of abuse or neglect in a substantiated report may apply to have their substantiation(s) reviewed by the Child Abuse Registry Review Committee when:

(a) A year has passed since the final substantiated case was closed; and

(b) The perpetrator has waived or otherwise exhausted due process.

(2) The individual must complete an application in accordance with applicable Departmental policy.

(3) The purpose of the committee is not to reexamine the underlying facts of the substantiated report(s), but to provide an opportunity for the perpetrator to present rehabilitative or other remedial evidence which suggests the individual should no longer be listed as a perpetrator within Departmental records.

(4) The committee shall decide whether the individual should remain classified as a perpetrator in Departmental records or if sufficient remedial evidence has been presented to justify the removal of that individual as a perpetrator.

(5) If the committee decides the individual should remain classified as a substantiated perpetrator, the individual shall be allowed to re-apply after one (1) year from the date of the decision. Except for minor perpetrators, the individual shall only be allowed to apply for a review twice.

(6) A minor perpetrator shall be allowed to apply once a year until their eighteenth (18th) birthday. Once a

minor perpetrator reaches the age of majority, the procedure set out in Rule 0250-07-09-.12(5) shall apply and the minor perpetrator shall have the ability to request on ly two (2) further reviews.

(7) The decision of the committee shall be considered discretionary and final.

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, and 37-5-512(a) .

Tennessee Secretary of State

Tre Hargett

Cody Ryan York Director of Publications

Ms. Helen Rodgers Assistant General Counsel Office of General Counsel Department of Children's Services 315 Deaderick Street 7th Floor, UBS Tower Nashville, TN 37243

Dear Ms. Rodgers,

Publications Division

312 Rosa L. Parks Avenue, 8th Floor

Nashville, Tennessee 37243-1102

December 21, 2017

615-253-4564 Cody.York@tn .gov

Per your conversation with our staff and pursuant to T.C.A. § 4-5-221(a)(l), we have corrected the statutory citation in rule 0250-07-09-.01(10) to read "T.C.A. § 37-1-102(b)(13)." If you have any questions, please feel free to contact my office at 615-741-2650.

Sincerely,

Cody Ryan York Director of Publications

sos.tn.gov

Department of State Division of Publications 312 Rosa L. Parks Ave., 8th Floor, Snodgrass/TN Tower Nashville, TN 37243 Phone: 615-741-2650 Email: publications.information@tn.gov

For Department of State Use Only

Sequence Number: \1--Vo--\l Rule ID(s): Nf A File Date: ~\1,~/-~~\/~\ 1~_

Effective Date: ___.\--Ly ___,___/ 1-'------'l '--t--'/ l,__1 __

Filing Form for Stay of Effective Date on Rules, Withdrawal of Stay, and Withdrawal of Rules

ency/Board/Commission: Tennessee Department of Children's Services ,_______ __

Division: Office of General Counsel

Contact Person: Helen Rodgers ······ ··························· Address: •UssToweri7th Fi0or

• 315 Deaderick Street

··················································---+ N. c1shville, TN ___ _ Zip: 37243

------- ------Phone: 615-741-1404

Email: Helen.Rodgers@tn.gov

Type of Action on Rule:

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Rule Filing Date: (mmlddlyy) ---~~---------------Ru I e Original Effective Date: (mmlddlyy) ---~~---------------

Length of Stay (not to exceed 75 days):

New Effective Date of Rule Filing: (mmlddlyy) ~--~'------------------

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Stay Filing Date: (mmlddlyy) ---~~----------~----St a y Effective Date: (mmlddlyy) ---~'------------------

New Effective Date of Rule Filing: (mmldd/yy) ---~~---------------

X Notice of Withdrawal of Rules

Rule Filing Date: 10/06117 --------------------Ru I e Effective Date: 01/04/18

Rule(s) (ALL chapters and rules contained in filing must be listed here. If needed, copy and paste additional tables to accommodate multiple chapters. Please enter only ONE Rule Number/Rule Title per row)

Chapter Number Chapter Title 0250-07-09 Classification and Review of Reports of Child Abuse/Neglect and Due Process Procedures

for Release of Child Abuse/Neglect Records Rule Number Rule Title 0250-07-09-.12 Child Abuse Registry Review Committee

SS-7041 (November 2017) RDA 1693

SS-7041 (November 2017)

Date ;/2. / 2ii 20! ~ Signature: ~:~z rJ;j~

Name of Officer: Douglas Earl Dimond

Title of Officer: General Counsel

Filed with the Department of State on: \ if i \ / \1 ------'---"----'-------------

7 Tre Hargett Secretary of State

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2 RDA 1693