§ 115.352 Exhaustion of administrative remedies. ( a ) An agency shall be exempt from this standard if it does not have administrative procedures to address resident grievances regarding sexual abuse.
( b ) ( 1 ) The agency shall not impose a time limit on when a resident may submit a grievance regarding an allegation of sexual abuse.
( 2 ) The agency may apply otherwise-applicable time limits on any portion of a grievance that does not allege an incident of sexual abuse.
( 3 ) The agency shall not require a resident to use any informal grievance process, or to otherwise attempt to resolve with staff, an alleged incident of sexual abuse.
( 4 ) Nothing in this section shall restrict the agency's ability to defend against a lawsuit filed by a resident on the ground that the applicable statute of limitations has expired.
( c ) The agency shall ensure that— ( 1 ) A resident who alleges sexual abuse may submit a grievance without submitting it to a staff member who is the subject of the complaint, and
( 2 ) Such grievance is not referred to a staff member who is the subject of the complaint.
( d ) ( 1 ) The agency shall issue a final agency decision on the merits of any portion of a grievance alleging sexual abuse within 90 days of the initial filing of the grievance.
( 2 ) Computation of the 90-day time period shall not include time consumed by residents in preparing any administrative appeal.
( 3 ) The agency may claim an extension of time to respond, of up to 70 days, if the normal time period for response is insufficient to make an appropriate decision. The agency shall notify the resident in writing of any such extension and provide a date by which a decision will be made.
( 4 ) At any level of the administrative process, including the final level, if the resident does not receive a response within the time allotted for reply, including any properly noticed extension, the resident may consider the absence of a response to be a denial at that level.
( e ) ( 1 ) Third parties, including fellow residents, staff members, family members, attorneys, and outside advocates, shall be permitted to assist residents in filing requests for administrative remedies relating to allegations of sexual abuse, and shall also be permitted to file such requests on behalf of residents.
( 2 ) If a third party, other than a parent or legal guardian, files such a request on behalf of a resident, the facility may require as a condition of processing the request that the alleged victim agree to have the request filed on his or her behalf, and may also require the alleged victim to personally pursue any subsequent steps in the administrative remedy process.
( 3 ) If the resident declines to have the request processed on his or her behalf, the agency shall document the resident's decision.
( 4 ) A parent or legal guardian of a juvenile shall be allowed to file a grievance regarding allegations of sexual abuse, including appeals, on behalf of such juvenile. Such a grievance shall not be conditioned upon the juvenile agreeing to have the request filed on his or her behalf.
( f ) ( 1 ) The agency shall establish procedures for the filing of an emergency grievance alleging that a resident is subject to a substantial risk of imminent sexual abuse.
( 2 ) After receiving an emergency grievance alleging a resident is subject to a substantial risk of imminent sexual abuse, the agency shall immediately forward the grievance (or any portion thereof that alleges the substantial risk of imminent sexual abuse) to a level of review at which immediate corrective action may be taken, shall provide an initial response within 48 hours, and shall issue a final agency decision within 5 calendar days. The initial response and final agency decision shall document the agency's determination whether the resident is in substantial risk of imminent sexual abuse and the action taken in response to the emergency grievance.
( g ) The agency may discipline a resident for filing a grievance related to alleged sexual abuse only where the agency demonstrates that the resident filed the grievance in bad faith.