Investigatory Hearings

(1) Conduct of Investigatory Hearings. (a) The attendance of at least two Commissioners, which shall be a quorum, shall be required to conduct an investigatory hearing pursuant to 118 CMR 6.04. (b) The Commissioners shall preside over the process of conducting investigatory hearings pursuant to M.G.L. c. 19C, § 8 and 118 CMR. The Commissioners shall: 1. determine the parties to each hearing; 2. determine which evidence they wish to consider; 3. receive evidence; 4. determine the conduct and scope of such hearing; and 6.04: continued 5. make findings at the conclusion of the hearing based upon the preponderance of evidence presented. (c) General Counsel for the Commission shall represent the Commission at said hearings and shall act at the direction of the Commissioners. (d) Unless an emergency investigatory hearing is convened by a majority vote of the Commissioners, in which case 72-hour telephone notice shall be given to all the parties enumerated in 118 CMR 6.04(2)(a), the Commission shall give written notice of an investigatory hearing at least ten business days prior to the commencement of the hearing. (e) Unless otherwise required by 118 CMR, notice of said hearings shall be made: 1. by posting said notice at the office of the Secretary of the Commonwealth; 2. by certified or first class mail to required parties; and 3. by mail to federal protection and advocacy agencies for persons with disabilities which have filed with the Commission a request to be so notified. (2) Parties to Investigatory Hearings. (a) Required parties to investigatory hearings shall be as follows: 1. a representative from the state agency that provided services to the person(s) with a disability(ies) at the time of the alleged abuse; 2. a representative from the state agency which is providing services to the person(s) with a disability(ies) at the time of the hearing, if different from that state agency providing services to the person(s) with a disability(ies) at the time of the alleged abuse; 3. a representative from the referral agency which performed the initial investigation of the initial report of abuse, if not the Commission; and 4. any other person or entity that the Commissioners, in their discretion, determine may provide relevant information to the Commission regarding the matter under investigation. (b) Other interested parties may be allowed to participate in the hearing at the discretion of the Commissioners under such terms and conditions as the Commissioners may determine appropriate. (c) The failure of a required party to attend a hearing after receiving notice shall not prevent a hearing from proceeding; however, the Commissioners may determine not to proceed without the absent required party. (3) Testimony. (a) Testimony taken at investigatory hearings shall be recorded by the Commission, either by electronic or video recording device or stenographic method. All other recording or transcription of hearings shall be prohibited, unless specifically authorized by the Commissioners after a written request made to them at least two business days prior to the commencement of the hearing. (b) At the discretion of the presiding Commissioners, testimony at any hearing may be taken under oath. (4) Witnesses. (a) Prior to testifying, each witness called by the Commission shall be given a copy of 118 CMR 6.00 and any protocols and procedures published thereto. (b) Each witness shall have the right to be represented by counsel at a hearing. (c) Each witness may refuse to submit evidence or give testimony if such evidence or testimony could tend to incriminate him or her, but witnesses who are mandated reporters who refuse to submit evidence or to give testimony, unless a response to a question could be used against him or her in a criminal proceeding, shall have his or her failure to cooperate reported to the person’s supervisor and to the appropriate state agency for possible disciplinary action. (5) Evidence. (a) The rules of evidence observed by courts shall not be observed in any hearing conducted pursuant to M.G.L. c. 19C, and 118 CMR; however, subject to the exemptions contained in M.G.L. c. 19C, § 5(1), the rules of privilege as recognized by law shall be observed. (b) Unless it is determined by the Commissioners that such disclosure is required to carry out the responsibilities of M.G.L. c. 19C, personally identifiable and confidential information shall not be revealed at a hearing. 6.04: continued (c) If the Commissioners determine that during the course of the hearing disclosure of personally identifiable or confidential information will occur, the Commissioners or their designee shall: 1. give notice ten business days prior to the commencement of the hearing to the person whose data will be disclosed or to his or her authorized representative of the Commission’s intent to disclose personally identifiable or confidential information; 2. give that person or authorized representative an opportunity to object to the disclosure prior to the commencement of the hearing; 3. presume that the person has no objection to such disclosure if the person fails to affirmatively notify the Commission of his or her objection regarding the disclosure of such information within five business days of being notified by the Commission; 4. seek a judicial determination regarding the proposed disclosure if the affected person is a person with a disability and deemed by the Commission to be incapable of exercising his or her rights to object to such disclosure and there is no authorized representative, or the authorized representative is the alleged abuser; 5. not disclose the information if the person with a disability, authorized representative or the Court, as the case may be, expressly objects to the disclosure; 6. disclose as little information as is necessary in the event disclosure of personally identifiable or confidential information is made during a hearing; or 7. vote to go into executive session in accordance with the provisions of the Open Meeting Law, M.G.L. c. 30A, §§ 18 through 25, and the requirements of M.G.L. c. 19C, §§ 3 and 8, to consider the reputation, character, physical condition or mental health of an individual.