The Florida Senate

415.1075  Administrative remedies; request for amendment or expunction; appeals; excusable neglect or fraud; requests for exemption.--

(1)  REQUESTS FOR AMENDMENT OR EXPUNCTION.--

(a)  If any person who is the alleged perpetrator in a report that is classified as proposed confirmed disagrees with the classification, the person may request the amendment or expunction of the report.

(b)  The request must be received by the department no later than 60 days after the alleged perpetrator receives notice of the proposed confirmed classification.

(c)  An alleged perpetrator, by failing to make a timely request for amendment or expunction of the report, agrees not to contest the classification of the report as confirmed. When a proposed confirmed report becomes confirmed because the alleged perpetrator fails to make a timely request to amend or expunge the proposed confirmed report, the department must give notice of the confirmed classification to the perpetrator and to the perpetrator's legal counsel.

1.  Notice of the confirmed classification must inform the perpetrator that the perpetrator may be disqualified from working with children, the developmentally disabled, and disabled adults or elderly persons.

2.  The notice must inform the perpetrator that further departmental proceedings in the matter are not allowed.

3.  The notice of the confirmed classification must be sent by certified mail, return receipt requested.

(d)  Upon receipt of the request, the department shall review its investigative report to determine whether a preponderance of the evidence supports a finding that the alleged perpetrator committed abuse, neglect, or exploitation of a disabled adult or an elderly person.

1.  If the department determines that sufficient evidence exists to support a finding that the alleged perpetrator committed abuse, neglect, or exploitation, the report must remain classified as proposed confirmed, and the alleged perpetrator and the alleged perpetrator's legal counsel, if known, must be so notified. Notice to the alleged perpetrator must be by certified mail, return receipt requested.

2.  If the department determines that the report does not contain sufficient evidence to support a finding that the alleged perpetrator committed abuse, neglect, or exploitation, the report must be reclassified as unfounded or must be closed without classification. The change in classification must be reported to the alleged perpetrator and entered into the central abuse registry and tracking system.

(2)  APPEALS.--

(a)  If a request for amendment or expunction is made and the secretary of the department denies the request or does not act within 60 days after receiving the request, or if the alleged perpetrator otherwise disagrees with any decision made by the secretary, the alleged perpetrator of the proposed confirmed report has the right to an administrative hearing under chapter 120 to contest whether the record of the report should be amended or expunged.

(b)  A request for an administrative hearing must be submitted in writing to the department within 30 days after the alleged perpetrator receives notification of the secretary's decision to deny the requested amendment or expunction or, if the secretary fails to act on the request, within 30 days after the expiration of the 60-day time period within which the secretary may act.

(c)  If an alleged perpetrator fails to timely request an administrative hearing, the proposed confirmed report must be reclassified as confirmed. When a report becomes confirmed because the alleged perpetrator fails to make a timely request for an administrative hearing, the department must give notice of the confirmed classification to the perpetrator and the perpetrator's legal counsel.

1.  The notice must inform the perpetrator that the perpetrator may be disqualified from working with children, the developmentally disabled, disabled adults, and elderly persons.

2.  The notice must inform the perpetrator that further departmental or judicial proceedings in the matter are not allowed.

3.  The notice must be sent by certified mail, return receipt requested.

(d)  If an alleged perpetrator of a proposed confirmed report has pled guilty to or has been found guilty of abuse, neglect, or exploitation of a disabled adult or an elderly person under this chapter, the alleged perpetrator may not relitigate the issues of abuse, neglect, or exploitation of a disabled adult or an elderly person in an administrative hearing requested under chapter 120 regarding the same incident or incidents of abuse, neglect, or exploitation which were the subject of the pleas or adjudication of guilt. The plea or adjudication of guilt requires the department to reclassify the proposed confirmed report as a confirmed report. If a court of competent jurisdiction reverses or vacates a plea or an adjudication of guilt of abuse, neglect, or exploitation of a disabled adult or an elderly person, the perpetrator may apply to expunge or amend the confirmed report within 60 days after receiving the notice that the plea or adjudication of guilt of abuse, neglect, or exploitation of a disabled adult or an elderly person was vacated or reversed.

(e)  At a hearing conducted under chapter 120, the department must prove by a preponderance of the evidence that the alleged perpetrator committed abuse, neglect, or exploitation of a disabled adult or an elderly person. In hearings conducted under this section, the administrative law judge may not require a standard of proof that goes beyond a preponderance of the evidence. The department's investigative report is to be considered competent evidence at the hearing.

1.  If the department's classification of the report as proposed confirmed is upheld, the report becomes a confirmed report.

2.  If the department's classification of the report as proposed confirmed is not upheld, the report must be reclassified as unfounded or must be closed without classification.

3.  The change in classification must be reported to the alleged perpetrator and entered into the central abuse registry and tracking system.

4.  If the department upholds the proposed confirmed report as confirmed, the department must give notice of the decision to the perpetrator and to the perpetrator's legal counsel.

a.  The notice must inform the perpetrator that the decision of the department to classify the report as confirmed constitutes final agency action within the meaning of chapter 120 and that the perpetrator may seek judicial review of this decision under s. 120.68.

b.  The notice must inform the perpetrator that the perpetrator may be disqualified from working with children, the developmentally disabled, disabled adults, and elderly persons.

c.  The notice must inform the perpetrator that further departmental proceedings in the matter are not allowed.

d.  The notice must be sent by certified mail, return receipt requested.

(f)  The confidentiality of the abuse or neglect report must, to the extent possible, be maintained during the administrative hearing process. The administrative hearing must be closed, the administrative files are confidential and may not be disclosed to the public under s. 119.07(1), and any identifying information in the recommended or final order must be deleted before the order is published pursuant to chapter 120.

(3)  REQUESTS FOR AMENDMENT OR EXPUNCTION OF REPORTS CLASSIFIED AS CLOSED WITHOUT CLASSIFICATION.--

(a)  Any person or facility named in a report classified as closed without classification may request the amendment or expunction of the report. The request must be received by the department no later than 60 days following the person's receipt of the notice of classification, as evidenced by the signature date on the return receipt.

(b)  Upon receipt of the request, the department's investigative report shall be reviewed to determine if a preponderance of the evidence supports a determination that abuse, neglect, or exploitation occurred and that the named person had some part in the incident which gave rise to the classification.

1.  If sufficient evidence exists, the report shall remain classified as closed without classification and the person shall be so notified.

2.  If the department's report does not contain sufficient evidence, the report shall be reclassified as unfounded. The change in classification shall be reported to the person and to the central abuse registry and tracking system.

(c)  Failure to make a timely request for amendment or expunction of the report means that the person agrees not to contest the classification of the report.

(4)  APPEALS OF REPORTS CLASSIFIED AS CLOSED WITHOUT CLASSIFICATION.--

(a)  If a request for amendment or expunction is made and the secretary of the department denies the request or does not act within 60 days after receiving the request, the person or facility named in a report classified as closed without classification shall have the right to an administrative hearing pursuant to chapter 120 to contest whether the record of the report should be amended or expunged.

(b)  A request for an administrative hearing must be submitted in writing to the department within 30 days after notification of the secretary's decision to deny the requested amendment or expunction, or, if the secretary fails to act on the request, within 30 days after the expiration of the 60-day time period within which the secretary may act.

(c)  At a hearing conducted pursuant to the provisions of chapter 120, the department shall prove by a preponderance of the evidence that the alleged abuse, neglect, or exploitation occurred and that the named person had some part in the incident which gave rise to the classification. The department's investigative report shall be considered competent evidence at the hearing, and the technical rules of evidence shall not exclude such report.

1.  If the department's classification as closed without classification is upheld, the report shall be closed without classification.

2.  If the department's classification as proposed confirmed is not upheld, the report shall be reclassified as unfounded. The change in classification shall be reported to the person and to the central abuse registry and tracking system.

(d)  The confidentiality of the abuse or neglect report shall, to the extent possible, be maintained during the administrative hearing process. The administrative hearing shall be closed, the administrative files shall be closed and not disclosed to the public under s. 119.07(1), and any identifying information in the recommended or final order shall be deleted prior to publishing pursuant to chapter 120.

(e)  Failure to make a timely request for an administrative hearing following denial of, or the secretary's failure to act on, the request for amendment or expunction means that the person agrees not to contest the classification of the report.

(5)  EXCUSABLE NEGLECT OR FRAUD.--The alleged perpetrator may, within 1 year after the classification of the report as confirmed, request the department to set aside a confirmed report when it can be shown that the failure to ask for amendment or expunction was due to excusable neglect or fraud. The standard for excusable neglect or fraud shall be as provided in the Florida Rules of Civil Procedure.

History.--s. 107, ch. 95-418; s. 268, ch. 96-406; s. 197, ch. 96-410.