1. (1) In General. The hearing examiner's decision shall be the final Sex Offender Registry Board decision, except as expressly provided in 803 CMR 1.16(5) and (6) and 1.21.

2. (2) Inherent Authority. Judicial review, pursuant to M.G.L. c. 30A, § 14, is not available to the Board to address errors in a hearing examiner's decision. Where a motion to reconsider is not available under 803 CMR 1.16(6), to prevent or mitigate a miscarriage of justice, the Board has the inherent authority to reconsider a decision or reopen a proceeding. 803 CMR 1.21 should be used sparingly and only when one of the following grounds are presented:

   1. (a) the decision is based upon an error of law;
   2. (b) the decision is not in conformity with procedural due process standards;
   3. (c) the decision is unsupported by substantial evidence;
   4. (d) the decision is the result of arbitrary or capricious conduct;
   5. (e) the decision is the result of an abuse of discretion;
   6. (f) the decision is not in conformity with the law; or
   7. (g) the decision would otherwise be a miscarriage of justice. Either party may request the Board to review a hearing examiner's decision. To seek review

of a hearing examiner's decision, a party shall inform the Board's General Counsel in writing. The Board, in consultation with the General Counsel, shall determine whether the grounds have been met. If the Board determines the grounds have been met, the Board may exercise its inherent authority. The Board shall not exercise its inherent authority for harmless errors. If the Board exercises its inherent authority, it will vacate the decision and unclassify the sex offender. The Board's General Counsel will notify the parties in writing. If the Board's decision is under judicial review pursuant to M.G.L. c. 30A, § 14 or M.G.L. c. 231, § 113, the party initiating review under this section shall seek a stay in the appropriate court. The parties may file additional evidentiary motions with the hearing examiner. The hearing examiner will amend their decision or hold further proceedings as necessary to address the errors. Once the amended decision issues, it will become the final decision of the Board and subject to judicial review

1. (3) Provisional. A sex offender who is incarcerated or civilly committed at the time of their classification, but who is not reasonably close to release, shall be placed in provisional status. A classification that is in provisional status is not considered final and is not subject to judicial review pursuant to M.G.L. c. 30A and M.G.L. c. 6, § 178M. The Board shall determine when a sex offender is reasonably close to release but in no circumstances shall it be more than one year before the anticipated release date. A sex offender who was finally classified while incarcerated or civilly committed at a time reasonably close to release, whose release date changes such that the sex offender is no longer reasonably close to release, shall be placed in provisional status. Provisional status may also apply to an incarcerated or civilly committed offender who did not request a hearing and has a final classification pursuant to 803 CMR 1.08(3). A sex offender who has been placed in provisional status has a right to update the record or request a second day of hearing before their classification is finalized. A sex offender must make a request no later than six months before the offender's anticipated release. Upon receipt of the sex offender's request, the Board shall set a final deadline for the sex offender to update the record or schedule a second day of hearing so that the sex offender's classification may be finalized prior to their release pursuant to M.G.L. c. 6 § 178E(a). Though it is the sex offender's obligation to request an update of the record, the Board will notify sex offenders who are in provisional status when they are close to their anticipated release and prior to finalizing their classifications. Failure of the sex offender to either request to update the record, a second day of hearing, or submit materials to the Board, by the deadline set by the Board will be deemed to have waived their right to update the record and the provisional classification shall be finalized. The Board may update the record of any sex offender in provisional status no later than six months before the offender's anticipated release. In updating the record, the Board shall comply with all discovery rules pertaining to classification hearings including, but not limited to, providing a copy of any new discovery to the sex offender.

A classification may be deemed provisional at the time of the administrative hearing, or at some later time should circumstances regarding the offender's release from custody change. An incarcerated or civilly committed sex offender may request that a classification be deemed provisional at any time if their circumstances warrant. The Board may also make an incarcerated or civilly committed offender's classification provisional at any time should circumstances warrant. After all updated materials are received or a second day of hearing is concluded, the classification decision will be finalized and the provisional status shall be removed. This shall be the final classification decision pursuant to 803 CMR 1.20, which shall be subject to judicial review pursuant to M.G.L. c. 30A. This provision does not apply, in whole or in part, to an offender who was finally classified and then released into the community before their present incarceration or civil commitment. Such an offender is finally classified and not entitled to provisional status but instead may seek reclassification or termination under 803 CMR 1.31.