Section 1.31 - Sex Offender's Request for Reclassification(1)General Principles. The Board recognizes the risk to reoffend and the degree of dangerous-ness posed by a sex offender may decrease over time. The burden of proof shall be on the sex offender to show that his or her risk of reoffense and degree of dangerousness posed to the public have decreased following his or her final classification.(2)Requirements for Motion for Reclassification.(a) No sooner than three years after the date of his final classification pursuant to 803 CMR 1.08, or 803 CMR 1.20, a sex offender who is finally classified as a Level 2 or 3 sex offender may file a written motion with the Board to re-examine his or her classification level. Sex offenders who have been convicted of a new sex offense may not seek reclassification sooner than ten years from the date of the last classification decision.(b) In his or her motion, the sex offender shall include his or her full name, date of birth, address, sex offender number (SON), name and address of legal representative (if applicable), name and address of legal guardian (if applicable), the classification level sought, and grounds for seeking reclassification.(c) In his or her motion, the sex offender shall include proof, by clear and convincing evidence, that his or her risk of reoffense and the degree of dangerousness he or she poses to the public have decreased since his or her final classification. In support of his or her motion, the sex offender shall attach documentation that supports his or her request for reclassification, including information pertaining to: 1. participation or completion of sex offender treatment (Factor 32);2. stability of current environment and support systems (Factors 33 and 34);3. successful completion of probation (Factor 28);4. physical condition (Factor 31);5. psychological or psychiatric profiles indicating his or her risk to reoffend (Factor 35); and6. substance-free and offense-free lifestyle in the community (Factors 9 and 29). The offender may include with his or her motion any other additional information that may be relevant to his or her request.(d) The sex offender shall also include an affidavit that provides an overview of his or her behavior and lifestyle during the three years prior to the filing of his or her motion for reclassification.(e) The Board may summarily deny, without a hearing, an offenders motion for reclassification if: 1. the offender is incarcerated;2. the offender has pending criminal charges;3. the offender has not remained offense free for more than three continuous years since his or her last classification; or4. the offender's last classification decision is currently under Judicial Review pursuant to M.G.L. c. 30A, § 14 or on appeal, or on review by the Board as a result of an order by a court of the Commonwealth or a federal court. The Board will notify the offender, in writing, the substantive reasons for summarily denying the motion for reclassification. The denial of a motion for reclassification under 803 CMR 1.31(2)(e) is not subject to Judicial Review.
(3)Material Change in Medical Circumstances. If a sex offender has experienced a material change in circumstances related to a medical condition, he or she may file a motion for reclassification sooner than three years after the date of his or her prior classification. In addition to the requirements listed in 803 CMR 1.31(2), the sex offender shall also include an affidavit from the treating medical provider for his or her stated condition. The affidavit, at a minimum, shall identify and include the following information:(a) the type of medical condition;(b) the onset or date of diagnosis of the medical condition;(c) a detailed description of the limitations the medical condition has caused; and(d) a summary of the offender's treatment and prognosis.(4) By filing a motion for reclassification, the offender authorizes the Board to obtain any information accessible under M.G.L. c. 6, §§ 178E and 178K(3) to assist in its review of the offender's motion.(5)Reclassification Hearing Process. The Chair may appoint a panel of Hearing Examiners or a single Hearing Examiner to conduct the hearing on the sex offender's motion for reclassification.(a) The Board will notify the sex offender in writing of the date, time and location of the reclassification hearing. An offender may waive his or her right to appear at the hearing before the Board. If an offender does not appear at his or her hearing, the Board shall treat the offender's failure to appear as a waiver of his or her appearance and shall proceed to rule on the offender's motion for reclassification, unless the offender presents good cause within three calendar days of the hearing.(b) No later than five calendar days before the scheduled hearing date, the sex offender may submit a written request to reschedule the hearing for good cause.(c) No later than 20 calendar days before the scheduled hearing date, the Board and offender shall exchange all additional information intended to be submitted to the panel or Hearing Examiner. (d) The sex offender may be represented at the hearing by privately retained counsel or an authorized representative. (e) Motions for reclassification shall be decided on new and updated information not available at the time of the original classification. This does not foreclose the panel or Hearing Examiner from considering the information relied on by the Board to determine the sex offender's prior classification levels, including any prior written decisions issued by the Board.(6)Reclassification Decision. The panel or Hearing Examiner shall determine whether the sex offender has met his or her burden to reduce his or her classification level. Pursuant to M.G.L. c. 30A, § 11(7) and (8), the panel or Hearing Examiner shall make specific written findings detailing the reasons for its decision after the reclassification hearing. For purposes of judicial review, pursuant to M.G.L. c. 30A, § 14 and M.G.L. c. 6, § 178M, these written findings shall be considered the final agency action.(7)Notification of Reclassification Decision. (a) Notification of the final reclassification decision made pursuant to 803 CMR 1.31(6) will be mailed to the sex offender and his or her authorized representative, if applicable, as soon as practicable. The sex offender or his or her authorized representative may request in writing, at the time of his or her administrative hearing, that the final decision made pursuant to 803 CMR 1.20 be sent to him via facsimile.(b) The Board will notify the sex offender of his or her new classification level and the offender shall be required to comply with registration requirements as set forth in M.G.L. c. 6, §§ 178E, 178F1/2 and 178Q. In addition, the Board shall update the information pertaining to the offender in the sex offender registry.(c) The decision will inform the sex offender of his or her right to seek judicial review of the final decision, pursuant to M.G.L c. 30A, § 14 and M.G.L. c. 6, § 178M. Pursuant to M.G.L. c. 30A, § 14, the sex offender has the right to pursue judicial review within 30 calendar days from the date of receipt of the final Sex Offender Registry Board decision. The filing of a complaint for judicial review will not alter the final reclassification level or stay the sex offender's registration requirements or the dissemination of registration information.(8) A sex offender may re-apply for reclassification no sooner than three years from the date of the last classification decision. Subsequent motions for reclassification shall be based on additional information not available during prior classifications.Amended by Mass Register Issue 1305, eff. 1/29/2016.Amended by Mass Register Issue 1306, eff. 1/29/2016.Amended by Mass Register Issue 1308, eff. 1/29/2016.