What do I need to know about the appeal process?
What is an Administrative Appeal?

An administrative appeal is the process by which a subject of a substantiated report of abuse or neglect may challenge the substantiated finding(s).  Any substantiated report may be challenged, regardless of the substantiated category determination.

What does the term Substantiated Report mean?

A substantiated report is a report of findings made after a report of abuse or neglect is investigated.  It contains a determination that there is a preponderance of evidence to support the allegation of abuse or neglect, the category and type of abuse or neglect that is substantiated, and the name of a specific individual or provider that is responsible for such act or acts of abuse or neglect. 

Substantiated reports of abuse or neglect are categorized into one or more of the following four categories:

Category 1 is serious physical abuse, sexual abuse or other serious conduct by custodians, including:

  • Intentionally or recklessly causing physical injury or consciously disregarding a substantial and unjustifiable risk that such injury will occur;
  • The knowing, reckless or criminally negligent failure to perform a duty that causes serious physical injury or physical injury that creates a substantial risk of death, or causes death or serious disfigurement; causes the substantial and protracted diminution of psychological or intellectual function (supported by a clinical assessment), or that is likely to cause such injury or diminution; 
  • Threats, taunts or ridicule that are likely to result in a substantial and protracted diminution of a service recipient’s psychological or intellectual functioning (supported by a clinical assessment);
  • Cruel or degrading treatment of a service recipient including a pattern of cruel or degrading physical contact that results in a substantial and protracted diminution of the service recipients psychological or intellectual functioning (supported by a clinical assessment); 
  • Engaging in or encouraging others to engage in sexual abuse or other criminal sexual conduct with a service recipient; engaging in, encouraging, facilitating or permitting another to engage in sexual conduct with a service recipient where it is inconsistent with an individual’s treatment plan, federal or state law relations or policies, or encouraging or permitting another to promote a sexual performance by a service recipient, or permitting or using a service recipient to engage in any prostitution–related offense;
  • Controlled substance offenses including the use or distribution of schedule I controlled substances at work or while on duty as well as the unlawful administration of a controlled substance to a service recipient;
  • Abuse as an obstruction of the investigation, including: 
    • intentionally falsifying records related to the safety, treatment or supervision of a service recipient with the intent to mislead an investigation of a reportable incident and where the false statement may endanger health safety or welfare of the service recipient;
    • the knowing and willful failure to report Category 1 abuse or neglect; 
    • supervisory failure to act on reported Category 1 abuse or neglect as directed by regulation, procedure or policy;
    • intentional materially false statement during an investigation of Category 1 abuse or neglect with the intent to obstruct the investigation; or
    • intimidating mandated reporters with the intent to prevent reporting of Category 1 abuse or neglect or retaliation against any custodian making a good faith report of such conduct. 

Subjects of Category 1 findings are maintained on a Staff Exclusion List (SEL) barring them from future employment with vulnerable persons in the State of New York.  

Category 2 is abuse or neglect, not otherwise covered by Category 1, which seriously endangers the health, safety or welfare of a service recipient.

  • Category 2 conduct is elevated to Category 1 conduct when such conduct occurs within three years of a previous Category 2 finding against the same subject.  
  • Category 2 findings, not otherwise elevated to Category 1, are sealed after five years.  

Category 3 is abuse or neglect, not otherwise covered by Categories 1 or 2, that endangers the health, safety or welfare of a service recipient.

  • Category 3 findings are sealed after five years. 

Category 4 applies to provider agencies and includes the following:

  • Conditions at a facility or provider agency that expose service recipients to harm or risk of harm to an extent that causes staff culpability for abuse or neglect to be mitigated by systemic problems such as inadequate staffing, management, training or supervision; and/or
  • Substantiated abuse or neglect against a service recipient, but where the perpetrator of such abuse or neglect cannot be identified. 
What laws govern the Administrative Appeals process?

Social Services Law section 494 establishes the process for administrative appeals.  Persons or providers found to have a substantiated report of abuse or neglect are notified in writing of their right to appeal and are provided with information about the procedure by which they may challenge the determination.  

What is the Staff Exclusion List (SEL)?

The Justice Center maintains a statewide register known as the Staff Exclusion List (SEL), which contains the names of individuals who have been found responsible for serious or repeated acts of abuse or neglect of vulnerable persons, as defined in the Protection of People with Special Needs Act.  Individuals (subjects) who have either a single substantiated “Category 1” offense or two substantiated “Category 2” offenses within a three-year period are placed on the list.  Individuals on the SEL are prohibited from future care of vulnerable persons in the State of New York.   Facilities and providers must request a check of the SEL before hiring or approving any person who would have the potential for regular and substantial contact with a service recipient. 

How will an individual know that they have been placed on the Staff Exclusion List (SEL)?

Individuals  who have received notification that they have been found responsible for a Category 1 substantiated offense have been placed on the Staff Exclusion List (SEL).

If an individual (subject) is found responsible for a Category 2 substantiated offense, is the individual placed on the SEL?

No.  A substantiated Category 2 finding of abuse or neglect will not result in an individual’s name being placed on the Staff Exclusion List unless the individual has two substantiated Category 2 findings within a three-year period.    

What are the possible consequences of a Category 2 substantiated offense?

If a subject of a substantiated category 2 offense applies for a position with an OPWDD provider, that OPWDD provider will receive notice that the subject has a substantiated category 2 offense, if it has not been sealed.  A substantiated category 2 offense is not a bar to employment, it is a factor that the OPWDD provider may consider in making its hiring determination.

If an individual (subject) is found responsible for a Category 2 substantiated offense, and the individual is not found responsible for another Category 2 substantiated offense within three years, what happens?

Reports that result in a Category 2 finding not elevated to a Category 1 finding will be sealed after five years.

If an individual (subject) is found responsible for a Category 3 substantiated offense, is the individual placed on the SEL?

No.  A substantiated Category 3 finding of abuse or neglect will not result in an individual’s name being placed on the Staff Exclusion List.  Reports that result in a substantiated Category 3 finding will be sealed after five years.  

Does the Justice Center report a Category 3 substantiated offense in pre-employment check responses?

No, Category 3 substantiated offenses are not reported by the Justice Center to providers during pre-employment checks.

What are the possible consequences of a Category 4 finding to the facility or provider agency?

The Justice Center requires the facility or provider agency to develop and implement a plan of prevention and remediation of the deficient conditions.  In evaluating the continued qualifications of a facility or provider agency, the state oversight agency evaluates such facility or provider agency’s compliance with any plans of prevention and remediation resulting from Category 4 reports and takes appropriate enforcement action, which may include closing intake to the facility or provider agency or terminating an operating certificate.

How is an individual (subject) or provider notified of substantiated finding of abuse or neglect?

If, after investigation, a preponderance of evidence supports substantiation of the allegation of abuse or neglect, the Justice Center notifies the individual, the victim and the provider agency of the substantiated findings by mail.  

What is the process for appealing a substantiated finding of abuse or neglect (request for amendment of the substantiated report of abuse or neglect)?

An individual (subject) or provider who has received notice that a substantiated finding of abuse or neglect has been made against them has a right to challenge the decision by requesting a review of the substantiated finding, which is referred to as a “request for amendment.”  The subject of a substantiated report must submit a signed written statement explaining the basis for their request to the Justice Center’s Administrative Appeals Unit. A request for amendment must be received by the Justice Center within 30 days of the date of the notice of a substantiated report.  Please note that the Justice Center does not process mail on Saturday or Sunday, so be sure to allow adequate time for the request to be received.  The written request should include the subject’s full name, address and the VPCR Case Serial number (found below their address on the letter).  The subject may also include any supporting documentation that they would like the Administrative Appeals Unit to review and consider.  

Written requests should be sent to:

Administrative Appeals Unit
NYS Justice Center for the Protection of People with Special Needs
161 Delaware Avenue
Delmar, NY 12054 

What if the 30-day deadline for filing a request for amendment has already passed?

The Executive Director of the Justice Center has sole authority in extraordinary circumstances to accept a late request for amendment.  If the 30-day period has expired, the subject of a substantiated report must submit a signed written statement explaining the basis for their request to the Justice Center’s Administrative Appeals Unit.  Such statement must include (a) the extraordinary circumstances that required late filing of the request, and (b) the facts and circumstances that describe the nature of the injustice that would result from failure to permit the late filing of the request.  Subjects are encouraged to submit any supporting documentation, in addition to their written statement.  

What happens after an appeal (request for amendment of the substantiated report of abuse or neglect) is filed?

Upon receipt of a request for amendment, the Justice Center’s Administrative Appeals Unit reviews the record which includes: the investigative file, the substantiated report, the subject’s request for amendment and any additional information provided by the subject.  The Administrative Appeals Unit determines whether there is a preponderance of evidence to find that the subject committed an act or acts of abuse or neglect as indicated in the substantiated report. If the report of abuse or neglect is substantiated, the subject has the right to an administrative hearing.  If the report of abuse or neglect is unsubstantiated, the report is amended to unsubstantiated and sealed.

How is information about the Administrative Review communicated?

At the conclusion of the administrative review, the Justice Center’s Administrative Appeals Unit will notify the subject of the substantiated report, the victim and the provider agency of the determination. 

What is an Administrative Hearing?

After a review by the Administrative Appeals Unit, a subject of a substantiated report or abuse or neglect has the right to a hearing before an Administrative Law Judge (ALJ), in which he or she will ask the ALJ to overturn the substantiated finding. An individual or provider may be represented by an attorney at the pre-hearing conference and at the hearing.  Subjects have the right to present evidence, produce witnesses, cross-examine witnesses and review any documents that the Justice Center offers into evidence at the hearing.  The burden of proof is on the Justice Center to show by a preponderance of evidence that the subject committed the act or acts of abuse or neglect alleged in the substantiated report and that the conduct constitutes the category level of abuse or neglect in the substantiated report.

How is information about the Administrative Hearing communicated?

At the conclusion of a hearing, the Administrative Law Judge issues a report, any recommendations, and the hearing record to the Justice Center’s Executive Director or his designee, who makes the final determination.   The final determination of the Executive Director or his designee shall be in writing and embodied in an Order, and the Justice Center will notify the subject, the victim and the provider of the final determination. 

Can a final determination be challenged?

The determination of the Executive Director is final and not subject to further administrative review.   A subject has the right to challenge the determination in court through an Article 78 proceeding of the Civil Practice Law and Rules.

What happens if the findings are unsubstantiated after the administrative hearing?

If after the administrative hearing, it is determined that the abuse or neglect findings are not supported by a preponderance of the evidence, the findings will be amended and sealed. 

Where can I find additional information about the Administrative Adjudication Process?
What laws govern an Administrative Appeal?