(b) Factors that must be met are:

1. (1)

   1. (A) The certified nursing assistant must have a substantiated finding of neglect.
   2. (B) There shall not be a petition process available for substantiated findings of:

(i) Physical abuse;

1. (ii) Verbal abuse; or

   1. (iii) Misappropriation of resident property;

2. (2)

   1. (A) The department makes a determination that the petitioner’s employment and personnel record does not reflect a pattern of abusive behavior or neglect.

   2. (B) Factors to be considered shall include, but shall not be limited to:

      1. (i) The neglect that resulted in a finding was a singular occurrence as identified in the incident investigation file;
      2. (ii) The petitioner does not have a criminal conviction related to neglect, abusive behavior, or physical violence;
      3. (iii) The petitioner’s name does not appear on the Adult and Long-term Care Facility Resident Maltreatment Central Registry or the department or the Division of Children and Family Services’ Child Maltreatment Central Registry;
      4. (iv) Whether a pattern of abusive behavior or neglect is discovered through reference checks with prior employers or other parties; and
      5. (v) Character references as provided by the petitioner; and

3. (3) At least one (1) year has passed since the petitioner’s substantiated finding of neglect was placed on the Adult and Long-term Care Facility Resident Maltreatment Central Registry or the Child Maltreatment Central Registry.

   1. (c) The procedure to file for a petition to remove a neglect finding shall include the following:

4. (1)

   1. (A) Petitioner shall submit a letter requesting the removal of the neglect finding.
   2. (B) The letter shall be addressed to: Division of Provider Services and Quality Assurance Nursing Assistant Training Program Mail Slot S-405 P.O. Box 8059 Little Rock, AR 72203-8059 ; and

5. (2) The petitioner must provide the following information with their request letter:

   1. (A) Full name and current mailing address;
   2. (B) Daytime phone number;
   3. (C) Social Security number;
   4. (D) Date of birth;
   5. (E) Name and daytime phone number of at least two (2) personal character references;

   6. (F)

      1. (i) Letter of reference from any employment within the previous year from the date of the petition.
      2. (ii) This letter must include a statement attesting to the petitioner’s work performance in relation to the lack of any incidents involving abusive or negligent behavior; and

   7. (G)

      1. (i) A current criminal record report from the Division of Arkansas State Police.
      2. (ii) If the petitioner is currently or has recently (within the previous twelve (12) months) lived in another state, a criminal record report must be provided from that state.
      3. (iii) All criminal record reports must be an original document and copies will not be accepted.
      4. (d)
6. (1) The department shall review each petition for consideration for removal of the neglect finding.

7. (2)

   1. (A) The review shall be conducted by an administrative review panel consisting of at least three (3) members appointed by the Director of the Division of Provider Services and Quality Assurance.
   2. (B) The panel shall meet within thirty (30) days of any petition.
   3. (C) The review panel shall consider all information submitted by the petitioner and may conduct additional research as needed.

(f)

1. (1) If the petition to remove the neglect finding is approved, the Certified Nursing Assistant/Employment Clearance Registry shall be updated within ten (10) business days to show the petitioner no longer has the neglect record and shall be eligible for employment in Arkansas long-term care facilities.
2. (2) Note that any certified nursing assistant whose certification has been expired for over twenty-four (24) months must successfully complete the state competency test to reestablish employment eligibility as a certified nursing assistant.

(h) If the petition to remove the neglect finding is denied by the review panel, any further appeals of the committee’s determination shall be based on the appeals procedures as listed below:

1. (1) Administrative hearings are available to persons, herein referred to as petitioners, who disagree with determinations to deny a petition to remove a neglect finding made by the department as described in this part;

2. (2)

   1. (A) If a petitioner wishes to appeal, they may do so by mailing a written notice of appeal to: Office of Appeals and Hearings Arkansas Department of Human Services P.O. Box 1437-Slot S101 Little Rock, Arkansas 72203
   2. (B) The notice shall be mailed by certified mail, with return receipt requested.

   3. (C) The notice of appeal shall state the following:

      1. (i) Name of the petitioner;
      2. (ii) Address of the petitioner;
      3. (iii) Date of birth of the petitioner;
      4. (iv) Phone number, if any, of the petitioner;
      5. (v) The petitioner's place of employment; and
      6. (vi) A short statement explaining why the petitioner believes the determination or decision is in error;

3. (3)

   1. (A) The notice of appeal must be postmarked by the Office of Appeals and Hearings within thirty (30) calendar days from the receipt of the notification of denial of the petition.
   2. (B) No appeal shall be accepted after thirty (30) calendar days of receipt of the determination or decision; and

4. (4)

   1. (A) A hearing shall be conducted by the Office of Appeals and Hearings.

   2. (B) The procedures to conduct the hearing are as follows:

      1. (i)

(b) (b) Within twenty (20) calendar days of receipt of notice that a petitioner has requested a hearing, the petitioner and the department will prepare a file to be submitted to the Office of Appeals and Hearings and mail a copy of the file by certified mail, return receipt requested, to the other party.

1. (c) (c) The file will contain only documentary evidence supporting or tending to support each party's allegations.

   1. (d) (d) The department will also submit an administrative hearing statement summarizing the determination or decision. This statement is not evidence.

(e) (e) Only such portions of each file as determined by the hearing officer to be relevant shall be included in the administrative hearing record;

1. (ii)

(b) (b) The request shall include the name, address, and telephone number of all witnesses not employed by the department.

1. (c) (c) Department employees will be expected to attend hearings and present testimony without the benefit of a subpoena and will be notified by the Office of Appeals and Hearings of their required presence at the hearing.

   1. (d) (d) Each party will be notified of any witnesses requested and will have five (5) business days from the receipt of this notice to request subpoenas for rebuttal witnesses.

(e) (e) The Office of Chief Counsel will issue the subpoenas, pursuant to the terms and authority of Arkansas Code § 20-76-103;

1. (iii)

(b) (b) The scheduling letter, sent via certified mail with return receipt requested, shall also contain the name of the hearing officer who will conduct the hearing.

1. (c) (c) In the event that the petitioner, the department representative, or an attorney representing the petitioner suffers from illness or cannot attend the hearing due to scheduling conflicts, that party may request the hearing be continued.

   1. (d) (d) The hearing will be rescheduled by the hearing officer upon a showing of good cause.

(f) (f) In each case, the hearing and hearing record must be completed within one hundred twenty (120) calendar days of receipt of the request for a hearing;

1. (iv)

(b) (b) Hearings may be conducted by telephone, by personal appearance of the parties, or by record review by the Office of Appeals and Hearings;

1. (v)

(b) (b) The petitioner will be advised of this fact in the scheduling letter;

1. (vi)

(b) (b) The representative should be familiar with the circumstances of the determination or decision and be able to summarize the pertinent aspects of the situation and present the documentation to support the basis for the determination or decision.

1. (c) (c) The representative should also be able to answer questions posed by the petitioner or the hearing officer relative to the issues and should be prepared to cross-examine adverse witnesses.

   1. (d) (d) The representative may request the services of an Office of Chief Counsel attorney for representation at the hearing;

      1. (vii)

(b) (b) Failure to furnish notice shall entitle other parties to a continuance to obtain counsel.

1. (c) (c) Petitioner's failure to furnish notice shall constitute a waiver of objection as to timeliness of the hearing;

   1. (viii) The hearing will be conducted by a hearing officer from the Office of Appeals and Hearings who had no part in the determination or decision upon which the hearing is being conducted;

      1. (ix) The petitioner may be accompanied by friends or other persons and may be represented by a friend, legal counsel, or other designated representative;
      2. (x) The hearing officer may not review the case record or other material either prior to or during the hearing unless such material is made available to the petitioner or their representative;
      3. (xi)

(b) (b) The hearing officer will explain the hearing procedure to the petitioner.

1. (c) (c) The administrative hearing statement will be read by the department representative.

   1. (d) (d) The department shall then present its case.

(h) (h) Questioning of all parties will be confined to the issue or issues involved;

1. (xii)

(b) (b) The report will consist of an introduction, findings of fact, conclusions of law, and decision.

1. (c) (c) The report shall constitute the final agency determination.

   1. (d) (d) The determination shall be mailed to the petitioner and the department; and

      1. (xiii) Any further review must be pursued in accordance with the Arkansas Administrative Procedure Act, Arkansas Code § 25-15-201 et seq.