Petition/Appeal
Statutory and Regulatory Definitions
- Abuse– an act or omission which results in serious physical or emotional injury to a Person with a Disability. However, no person shall be considered to be abused for the sole reason that such person is being furnished or relies upon treatment in accordance with the tenets and teachings of a church or religious denomination by a duly accredited practitioner thereof. 118 CMR 2.02.
- Abuse Per Se. An Act or Omission of a Caretaker that includes or results in the following, regardless of whether a Serious Physical Injury or Serious Emotional Injury is manifested:
(a) Sexual Abuse
(b) the withholding of adaptive aids used by the Person with a Disability, provided that said withholding is unrelated to safety, care or treatment;
Commentary: For purposes of 118 CMR 2.02: Abuse Per Se (b), examples of the withholding of adaptive aids include, but are not limited to, prevention of access to and/or removal of a presently relied upon means of communication, in the case of a deaf or hard of hearing person or other Person with a Disability with communication deficits, or of a presently relied upon apparatus to assist mobility, in the case of a Person with a Physical Disability.
(c) a pattern of touching neither required nor appropriate for tending to the safety and welfare of a Person with a Disability. For purposes of 118 CMR 2.02: Abuse Per Se (c) only, the term “pattern” shall mean “two or more separate instances of touching”;
(d) the intentional, wanton or reckless application of a physical force in a manner that inflicts physical pain or Serious Emotional Injury as determined by an evaluation of the totality of the circumstances. For the exclusive purposes of 118 CMR 2.02: Abuse Per Se (d), when a person as a result of his or her disability is unable to express or demonstrate a Serious Emotional Injury or a reaction to physical pain, the investigator may use the reasonable person standard solely for the purposes of evaluating whether the intentional, wanton or reckless application of a physical force inflicted physical pain or Serious Emotional Injury. Using the reasonable person standard, the investigator determines whether, by a preponderance of the evidence, given the same set of factual circumstances, a reasonable person would have experienced physical pain or Serious Emotional Injury.
Reasonable person shall mean “A person who in similar circumstances would exercise the qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of himself or herself and the interest of others.” 118 CMR 2.02.
- Act– a caretaker’s intentional, reckless, or negligent action regardless of whether the act is performed with an intent to harm. 118 CMR 2.02.
- Caretaker – Any State Agency or any individual responsible for the health and welfare of a Person with a Disability by providing for or directly providing assistance in meeting a Daily Living Need, which cannot otherwise be performed by the Person with a Disability without assistance, regardless of the location at which such assistance occurs. Minor children, unless the minor child is receiving compensation for serving as a Caretaker, and adults adjudicated incapacitated by a court of law shall not be deemed to be Caretakers. Caregiver and Caretaker may be used interchangeably without changing the meaning of either. 118 CMR 2.02.
- Omission – a caretaker’s failure, whether intentional or not, to take action to protect a person with a disability, or to provide for the daily living needs of a person with a disability including, but not limited to, failing to prevent another person from committing abuse or abuse per se against a person with a disability. 118 CMR 2.02.
- Person with a Disability – A person 18 through 59 years of age, who is a Person with an Intellectual Disability or a Person with a Developmental Disability, as used in M.G.L. c. 123B, § 1, or who is otherwise mentally or physically disabled, and such mental or physical disability prevents or restricts the individual’s ability to provide for his or her own Daily Living Needs; provided, however, that a person who is temporarily dependent upon a medically prescribed device or procedure to solely treat a transitory physical ailment or injury shall not be considered a Person with a Disability for the purposes of M.G.L. c. 19C, unless that person otherwise meets the definition of a Person with a Disability. 118 CMR 2.02.
- Person with a Developmental Disability – A person with a severe, chronic disability that is attributable to a mental or physical impairment resulting from intellectual disability, autism, Smith-Magenis syndrome or Prader Willi syndrome; is manifested before the individual attains 22 years of age; is likely to continue indefinitely; results in substantial functional limitations in three or more areas of major life activity; and reflects the individual’s need for a combination and sequence of special, interdisciplinary or generic services, supports or other assistance that is of a lifelong or extended duration and is individually planned and coordinated; as delineated and more specifically defined in the statute and regulations of the Department of Developmental Services at M.G.L. c. 123B and 115 CMR 2.01. 118 CMR 2.02.
- Person with an Intellectual Disability – A person who has an intellectual disability, characterized by significant limitations in both intellectual functioning and adaptive behavior beginning before 18 years of age, as expressed in conceptual, social and practical adaptive skills as delineated and more specifically defined in the statute and regulations of the Department of Developmental Services at M.G.L. c. 123B and 115 CMR 2.01: Definitions, and consistent with the most recent definition provided by the American Association on Intellectual and Developmental Disabilities. 118 CMR 2.02.
- Serious Emotional Injury – An injury to the intellectual functioning or emotional state of a Person with a Disability including but not limited to, coercion; harassment; the inappropriate isolation of a Person with a Disability from family, friends or regular activity; and verbal assault, including but not limited to, ridiculing, intimidating, yelling or swearing. A Serious Emotional Injury is evidenced by an observable or measurable reduction in the person’s ability to function from the person’s customary range of performance or customary behavior including, but not limited to, a state of anxiety, fear, depression or withdrawal; or the development of post-traumatic stress disorder, including but not limited to, symptoms resulting from being forced to engage in nonconsensual sexual activity.
Commentary. Finding a reduction of function is not solely dependent upon the duration of the reduction. The fact that the resulting reduction of function from the person’s customary range of performance or customary behavior does not extend for a particular period of time does not preclude a finding that a Serious Emotional Injury has occurred. The length of time the reduction in function lasts must be evaluated in conjunction with the severity of the reduction in function in determining whether a Serious Emotional Injury has occurred. 118 CMR 2.02.
- Serious Physical Injury– Impairment of the physical condition of a Person with a Disability including, but not limited to:
(a) death;
(b) brain damage; permanent disfigurement; fracture of any bone; subdural hematoma; intramuscular injury;
(c) bedsores or similar condition;
(d) any significant: bleeding; bruising; burn; sunburn; abrasion; laceration; or puncture of the skin;
(e) any significant impairment of a: bodily system; function; limb; or organ, including human skin;
(f) harmful symptoms resulting from the use of medication or chemicals without informed consent or appropriate authorization; or
(g) malnutrition or dehydration.
Commentary. In determining whether there is Reasonable Cause to Believe that the injury is a Serious Physical Injury resulting from Abuse, the Commission shall consider the significance of the injury in the totality of the circumstances, including, but not limited to:
- the shape, size, number and/or pattern of the injury(ies), including indicators that the injury(ies) may have been sustained by the application of force from an identifiable object (i.e., belt, hand, blunt object);
- the location of the injury on the Person with a Disability;
- prior injuries of a similar nature;
- the level of dependence of the Person with a Disability, including but not limited to: his or her supervision requirements; ability to ambulate; the requirements of his or her care; and the extent to which the individual is able to participate in activities of daily living;
- the effect the injury had on the Person with a Disability’s ability to function physically;
- the nature and history, if any, of prior self injurious behavior by the Person with a Disability; and
- the nature and extent of any medical treatment needed to address the injury. 118 CMR 2.02.
Commonly used acronyms in DPPC cases:
- ALAB– Alleged Abuser
- ALV– Alleged Victim
- CCF– County Correctional Facility
- DALA– Division of Administrative Law Appeals
- DCF– Department of Children and Families
- DESE– Department of Elementary and Secondary Education
- DMH– Department of Mental Health
- DOC– Department of Correction
- DPH– Department of Public Health
- DPPC– Disabled Persons Protection Commission
- EEC– Department of Early Education and Care
- AGE– Executive Office of Aging and Independence
- EOHHS– Executive Office of Health and Human Services
- I/DD– Intellectual or developmental disability
- MBY– MassAbility
Petition for Review Process
Identified abusers, or their legal representatives, have the right to request a review of the findings and conclusions contained in a 19C investigation report. However, an action plan based on a 19C investigation must be appealed to the agency which developed the plan Department of Developmental Services (DDS), Department of Mental Health (DMH) or MassAbility.
What if I Disagree with the Findings of a DPPC Investigation Report?
Substantiated abusers, or their legal representatives, have the right to request a review by DPPC of the findings and conclusions contained in a 19C investigation report. Note: an action plan based on a 19C investigation must be appealed to the agency that developed the plan (e.g., Department of Developmental Services, Department of Mental Health).
Grounds for Filing a Petition for Review: Objecting to a Substantiation of Abuse
Grounds for filing a petition for review objecting to a substantiation of abuse:
- The investigation report is based on an investigation which was not conducted in accordance with:
- the requirements of 118 CMR 5.02:(1); and
- which resulted in the reasonable likelihood of substantial prejudice to the petitioner;
- The preponderance of evidence does not support the conclusions reached by the investigation report; or
- The preponderance of the evidence supports a different conclusion than the conclusion reached by the investigation report.
Grounds for Filing a Petition for Review: Objecting to Placement on the Abuser Registry
Grounds for filing a petition for review objecting to placement on the Abuser Registry:
- A care provider substantiated for registrable abuse pursuant to 118 CMR 5.02 (2) (b) may file a Petition for review to provide information that demonstrates, based upon the totality of the circumstances, the incident was isolated and unlikely to reoccur, and that the care provider is fit to provide services or supports to persons with intellectual or developmental disabilities, and that the care provider should not be placed on the registry.
- Factors that may be considered by the Commission in determining that a care provider should not be placed on the registry may include but are not limited to:
- the nature and extent of the serious physical injury, serious emotional injury, or abuse per se sustained by the person with an intellectual disability or person with a developmental disability; and
- relevant details about the care provider, such as whether the care provider received training relevant to the incident at issue; the care provider’s employment history in working with individuals with disabilities; prior instances of similar conduct by the care provider, regardless of whether said conduct constituted abuse or abuse per se; any statements or communication by the employer regarding the care provider’s work history and fitness to provide services and supports to persons with disabilities; and whether the care provider’s conduct could reasonably be addressed through training, education, rehabilitation, or other corrective employment action and the care provider’s willingness to engage in said training, education, or other corrective employment action.
Visit the DPPC Abuser Registry Information Page for more information about the DPPC Abuser Registry.
Factors Considered by the Commission for Registry Placement
Factors that may be considered by the Commission in determining that a care provider should not be placed on the Registry may include but are not limited to:
- The nature and extent of the serious physical injury, serious emotional injury, or abuse itself sustained by the person with an intellectual disability or person with a developmental disability;
- Relevant details about the care provider, such as whether the care provider received training relevant to the incident at issue;
- The care provider’s employment history and prior instances of similar conduct by the care provider, regardless of whether said conduct constituted abuse or abuse by itself;
- Any statements or communication by the employer regarding the care provider’s work history and fitness to provide services and support to persons with disabilities; and
- Whether the care provider’s conduct could reasonably be addressed through training, education, rehabilitation, or other corrective employment action.
Petitions, Appeals and Jurisdiction Frequently Asked Questions
Can I request a review of the investigator’s finding that I am an “abuser”?
Yes, you can file a Petition for Review. After you have reviewed all of the information in the notification package (cover letter, Investigation Report, and instructions for filing a Petition for Review), if you believe that the investigator’s finding is inaccurate, you may file a petition for Review with the DPPC.
Is there any way I can get an Extension of the Due Date if I need it?
An extension will only be granted when there are extenuating circumstances that prevented your Petition from being filed within the regulatory time frame.
If you believe you have good cause to request an extension, you must submit your extension request in writing to the DPPC Executive Director. You must present your reason for requesting an extension of time in a clear and concise way. If an extension is granted, a new due date for filing your Petition will be established; and you will be notified in writing of the new date. You must file your Petition for Review by the new due date. No further extensions will be granted.
What are the “Grounds” for filing a Petition for Review?
The only grounds for filing a Petition for Review are:
The investigation report is based on an investigation which was not conducted in accordance with 118 CMR 5.02 (1)
There is not sufficient evidence to support the conclusions reached in the investigation report
The investigation report fails to reach conclusions supported by the majority of the evidence
What should I include with my Petition for Review?
You should follow the instructions you received in the mail from the DPPC.
You can also include copies of any other paperwork, documents, photos or statements that you think will help change the conclusion reached by the investigator. Do NOT send originals as they will not be returned to you.
If there are witnesses that you think should have been interviewed during the investigation and who were not interviewed include the name, address and telephone number for each such person. Also, explain what information they would have testified to that would have made a difference in the conclusion reached by the investigator.
How long will it take to get a Decision on my Petition for Review?
Because of the large number of Petitions received by DPPC and the limited number of staff available to complete them, the Review process may take years to complete.
What happens after I get the Review Decision in the mail?
Once completed, you will receive the original Review Decision in the mail, signed by the DPPC Executive Director. If the investigator’s finding of abuse is upheld, the decision will say that the conclusion of abuse is “affirmed;” if it is not upheld, the decision will say that the conclusion of abuse is “reversed.”
Can I appeal to anyone else if I am dissatisfied with the Review Decision?
No. Per applicable state law, DPPC decisions are not subject to further judicial review.
Downloads
Requests for Reconsideration Frequently Asked Questions
Why am I receiving this notification of findings of a DPPC Investigation?
You are receiving this notice of the findings of a DPPC investigation and redacted 19C investigation report because you were identified as the alleged victim of abuse in the report or are the legal representative of the alleged victim and you requested a copy of the report as well as instructions for appealing its conclusions.
What is the DPPC?
The DPPC is organized under Chapter 19C of the General Laws. The DPPC is charged with investigating and remediating allegations of abuse of persons with disabilities between the ages of 18 and 59 by an act or omission of a caretaker.
What is abuse and/or abuse per se?
Abuse is an act or omission of a caretaker that results in serious physical or serious emotional injury to a person with a disability.
Abuse per se can occur when the act or omission of a caretaker includes or results in any one of the following:
- sexual abuse;
- the withholding of adaptive aids used by the person with a disability, provided that said withholding is unrelated to the safety, care, or treatment;
- a pattern touching which is neither required nor appropriate for the safety and welfare of a person with a disability;
- the intentional, wanton, or reckless application of a physical force in a manner that inflicts physical pain or serious emotional injury as determined by an evaluation of the totality of the circumstances.
For additional information about these definitions, please reference 118 CMR 2.02.
I do not agree with the conclusions reached in the report. Can I appeal?
Yes. If you are aggrieved by the findings of the report, you can file an appeal with the DPPC. It is called a Request for Reconsideration (“Request”) and must be in writing. For more information, see FAQs 6, 7, and 8.
Please note, the DPPC does NOT consider an individual “aggrieved” by any of the following:
- The screening of an intake;
- The assignment of an investigator;
- The deferral of an investigation;
- A jurisdictional determination;
- When a finding of abuse or registrable abuse has been substantiated against one or more abusers; or
- When a finding of abuse or registrable abuse has been substantiated against one or more abusers.
How long after the conclusion of an investigation do I have to file a Request?
There is no set regulatory time frame for initiating a request for reconsideration. However, as a practical matter, the length of time between the conclusion of the investigation and your request may impact the DPPC’s ability to act on your request.
What are grounds for filing a Request?
The grounds for filing a Request are: (1) The investigation report was based on an investigation not conducted in accordance with regulatory requirements which likely resulted in substantiated prejudice; and/or (2) the conclusions of the Report are not supported by the preponderance of the evidence. For more information, please review DPPC regulations 118 CMR 14.06 (2).
What are the requirements for filing a Request?
A Request must be in writing and legible—preferably a typed document. You should be sure to include, as applicable, the following in and with your Request:
- Your name, address, phone number, and email address;
- DPPC case number;
- Statement of the grounds for filing with a clear explanation of all the specific facts which support your position;
- Any supporting documentation; and
- Any other material you want the DPPC to consider in reviewing your Request.
How do I file a Request with DPPC?
You may email your petition to DPPCPetitions@mass.gov, or mail a completed Petition to:
Disabled Persons Protection Commission
Legal Unit
300 Granite Street, Suite 404
Braintree, MA 02184
What happens after I file a Request?
The DPPC will review the underlying investigation report, the Request you filed, and any other supporting documents that you submit and issue a final decision on your Request as soon as possible. If the Decision determines that additional investigation is warranted, the DPPC will assign the matter for investigation, and you will be provided with the contact information for the new investigator.
I received a copy of an Action Plan and Decision Letter from the Department of Developmental Services (“DDS”) or a Department of Mental Health (“DMH”) Investigation Report related to a DPPC Investigation. Can I appeal these findings with the DPPC?
No, Decision Letters and Actions Plans are issued by DDS pursuant to its regulations, 115 CMR 9.00, and DMH Investigation Reports are issued pursuant to 104 CMR 32.00. The DPPC cannot accept appeals of these findings—you must appeal directly to the applicable issuing agency.
How to File a Petition for Review
Petitions for review must be filed in writing with DPPC within ten (10) business days of the petitioner’s receipt of notification and a copy of the investigation report from the Commission. Petitions for review:
- shall be in writing;
- shall set forth with sufficient specificity, including supporting evidence and documentation, the grounds for the petition; and
- shall be filed with the Executive Director of the Commission, or his or her designee.
Send your petition for review to:
Disabled Persons Protection Commission
Legal Unit
300 Granite Street, Suite 404
Braintree, MA 02184
When can a DPPC Petition Decision be Appealed to the Division of Administrative Law Appeals?
If the Petition decision upholds the substantiation of registrable abuse, the DPPC will notify you of your right to appeal that decision with the Division of Administrative Law Appeals (“DALA”) and provide you specific instructions on how to do so. You must file your appeal with DALA within 13 business days after the DPPC mails the Petition decision to you.
Per DPPC’s regulations (118 CMR 14.03 (4)), if you file an appeal with DALA, the DPPC will not enter your name on the DPPC Abuser Registry unless and until DALA issues a final decision affirming the substantiation of registrable abuse. Learn more about DALA here or learn more about the administrative appeals process here.