Individuals and providers who have filed a Request for Amendment (Appeal) and whose substantiated report of abuse or neglect has been upheld have the right to a hearing before an Administrative Law Judge. There is no need to request a hearing, this process automatically takes effect if the substantiated report is upheld in the initial review phase.
After a substantiated report is upheld during the Administrative Appeal review, it moves into the pre-hearing phase. Several steps then occur:
- You will be mailed the date of a pre-hearing conference (conducted by telephone).
- The pre-hearing conference is held and a hearing date is set.
- The hearing is held on the date chosen.
If you are unable to appear at the scheduled hearing date, send a letter to the Justice Center as soon as possible stating the reason(s) why you cannot attend. A new hearing date may be considered under certain circumstances.
If you decide to withdraw your appeal or if you fail to attend the pre-hearing conference or the hearing, the report with the substantiated findings will be upheld and you will not have the right to further appeal.
At the Hearing
The Justice Center conducts hearings both in-person and by video conference via WebEx. Video conference hearings allow subjects, attorneys/representatives, and witnesses to remotely participate in hearings online, without having to travel to attend in person. Video conference hearings will be scheduled at pre-hearing conferences or final status conferences.
At the hearing, the Justice Center must prove to the Administrative Law Judge, by a preponderance of the evidence, that:
- you committed the act(s) of abuse or neglect as set forth in the Report of Substantiated Findings and
- the acts constitute abuse or neglect and
- if the acts are considered abuse and neglect the appropriate category level was assigned.
You have the right to:
- submit documents for the Administrative Law Judge to consider
- testify yourself or have witnesses testify on your behalf
- ask questions of the Justice Center witnesses
- review/challenge any documents the Justice Center offers into evidence
The Administrative Law Judge considers all the evidence presented and makes a recommended decision that will be reviewed by the Executive Director of the Justice Center.
- If the Executive Director finds that the Justice Center met its burden to prove you committed the acts alleged and the correct category level was assigned;
- the Report is upheld and a record of the finding remains substantiated against you in the Vulnerable Persons Central Register.
- If the Executive Director finds that the Justice Center met its burden to prove you committed the acts alleged but an incorrect category level was assigned;
- the Report is upheld, a record of the finding remains substantiated against you in the Vulnerable Persons Central Register with the new category level assigned.
- If the Executive Director finds that the Justice Center did not meet its burden to prove you committed the acts alleged;
- the Report is not upheld and the finding is unsubstantiated and the record is sealed.
Hearing results will be sent in the mail.
Category 3 Upheld
The report of your substantiated Category 3 finding will be sealed after five years from the date of the Report of Substantiated Findings letter. The findings will not be disclosed to providers requesting a Staff Exclusion List and Criminal Background check. You will not be placed on the Staff Exclusion List.
Category 2 Upheld
The report of your substantiated Category 2 finding will be sealed after five years from the date of the Report of Substantiated Findings letter. Category 2 findings will be disclosed only to the Office for People with Developmental Disabilities (OPWDD) providers during pre-employment checks. A substantiated Category 2 finding is not a bar to employment; it is only a factor to be considered by an OPWDD provider in making a hiring determination.
If you are the subject of two Category 2 findings in incidents that occurred within three years of one another, the second substantiated Category 2 finding will be elevated to Category 1, and you will be placed on the Staff Exclusion List.
Category 1 Upheld
The report of your substantiated Category 1 finding will result in placement on the Staff Exclusion List. The fact that you are on the Staff Exclusion List will be disclosed to entities authorized to conduct Staff Exclusion List checks with the Justice Center. Placement on the Staff Exclusion List may subject you to immediate termination from employment and prohibit your future employment or volunteer service with certain vulnerable populations within New York State.
Withdraw a Request
At any time, a subject or provider can choose to withdraw a request for appeal.
- Complete and submit the Withdraw for Request for Amendment form
- Submit a written request by mail or email to the Administrative Appeals Unit