Appeal

(1) Scope. 115 CMR 9.17 governs the process for the appeal of a disposition of dismissed under 115 CMR 9.09(2)(a)1. and the appeal of a decision letter and/or action plan issued by the Department. (2) Grounds for Appeal. (a) The alleged victim, his or her guardian or legally authorized representative, if any, or the alleged abuser may file an appeal on any of the following grounds: 1. the complaint was improperly dismissed; 2. the investigation was not conducted in accordance with 115 CMR 9.10; 3. the findings and conclusions in the decision letter are not supported by the preponderance of the evidence; 4. the recommendations in the action plan are not supported by the findings or conclusions in the decision letter; or, 5. the action plan does not sufficiently assure the safety, dignity or welfare of the alleged victim or other individual(s) involved in the complaint. (b) An alleged abuser may not appeal a decision letter or action plan if he or she exercises the right to file a grievance as described in 115 CMR 9.17(4). (3) Appeal Procedure. (a) Notice of Appeal. 1. The appellant shall file a notice of appeal with the commissioner within ten days of receipt of a notice of disposition of dismissal or a decision letter and action plan. 2. A notice of appeal shall: a. be in writing; and b. set forth with specificity the ground(s) for appeal available under 115 CMR 9.17(2); 3. A notice of appeal will be denied if filed more than 30 days after receipt of the notice of disposition of dismissal, or the decision letter and action plan. 4. The Department shall notify in writing the alleged victim, his or her guardian or legally authorized representative if applicable, and the alleged abuser(s) that an appeal has been filed. (b) Action on Notice of Appeal. 1. The commissioner shall issue a written decision that will include a statement of the appeal and the reasons underlying the decision. The commissioner’s decision shall: a. affirm the disposition of dismissal, or the decision letter and action plan; or, b. order the amendment of the disposition of dismissal, or the decision letter and/or action plan if the appeal is found to be meritorious; or c. remand the matter to the investigations division for further investigation. 2. In the case of a remand, the commissioner shall: a. direct that an addendum to the decision letter be issued within 15 days; and, b. if appropriate, direct that an addendum to the action plan be issued; and, c. following receipt of the addendum, issue the decision letter and/or action plan. 3. Dismiss the appeal when: a. the notice of appeal is deficient. b. the appeal identifies substantially the same appeal as one received and reviewed or is under review by the DPPC and pertains to the same or a substantially similar complaint. c. the appellant has filed a grievance for a hearing as described in 115 CMR 9.17(4). (c) The Department shall distribute copies of the appeal decision to the parties, the regional director, the area director or facility director, and the senior investigator. (d) All corrective actions in an action plan and any protective services required shall be implemented pending appeal. (e) An appeal decision issued by the commissioner shall be the final and conclusive determination on all matters raised or that could be raised on appeal in each case. (4) Filing of a Grievance. Any employee who is a party aggrieved by the manner of disposition of a complaint, by the decision letter or by the action plan, and who has a right to a hearing under a collective bargaining agreement or civil service law, may grieve the disposition, decision letter or action plan through the collective bargaining or civil service process. Where the employee elects such procedures, they shall be the exclusive procedures for resolving the employee's grievance. The invocation of such procedures shall not alter the Department's responsibility under 115 CMR 9.00 to respond to, investigate, and make decisions concerning complaints and appeals initiated by or concerning individuals it serves.