NECESSITY, FUNCTION, AND CONFORMITY:
483.12 requires that the state shall have in
place a fair and impartial decision-making process for appeals related to
involuntary transfer and discharge. This administrative regulation sets forth
guidelines for this process for long-term care facilities as licensed by
20:300 or those long-term care facilities certified in
accordance with 42 CFR 483. This administrative regulation sets forth the
hearing process for appeals related to residents' transfer and discharge rights
under Kentucky's Nursing Home Reform statutes and administrative
(1) "Facility" means a long-term care
facility as defined by
216.510(1) excluding those
facilities licensed as family care homes.
(2) "Hearing officer" means the person
designated by the cabinet to conduct a hearing and make a decision regarding
any appealed transfer or discharge.
(3) "Resident" means a resident of a facility
or any legal representative or individual acting on behalf of the
Upon receipt of notice
of appeal in accordance with
900 KAR 2:020
Section 2(1) and (2), the secretary of the cabinet shall appoint a hearing
officer and a hearing shall occur within thirty (30) days.
(2) Notice of hearing shall be mailed to the
facility and resident not less than ten (10) days prior to the commencement of
the hearing. The notice of hearing shall contain the reasons, time, and place
of the hearing. The notice of hearing shall be mailed by certified mail, return
receipt requested, to the facility and the resident.
(3) The facility and the resident may be
represented by counsel and make oral or written argument, offer testimony,
cross-examine witnesses, or take any combination of such actions. No
depositions shall be permitted for the purpose of discovery, however, the
hearing officer may authorize depositions of witnesses who, in his opinion, for
good cause shown cannot be present at the hearing. A hearing officer shall
preside at the hearing, shall keep order, administer oaths, may issue subpoenas
and may admit relevant and probative evidence and shall conduct the hearing in
accordance with reasonable administrative practice.
(4) All testimony at the hearing shall be
recorded but need not be transcribed unless requested. The person or
organization requesting a transcript shall bear the cost of such
(5) The hearing officer
may place reasonable time limits upon the presentation of testimony, evidence
and argument and may terminate or exclude irrelevant or redundant evidence,
testimony or argument.
The hearing officer shall review the:
1. Cabinet's determination that the
resident's rights were violated; and
2. Fine imposed by the cabinet.
The hearing officer shall base
his review of the cabinet's determination and fines on the:
1. Facts of the case; and
2. Requirements of
and this administrative regulation.
Appropriate to the facts of the case, KRS
Chapter 216, and this administrative regulation, the hearing officer may:
1. Sustain the cabinet's determination and
2. Determine that the
rights of the resident were not violated, and that the imposition of a fine was
not warranted; or
3. Make a
different determination with regard to the severity or type of violation, and
the fine required by KRS Chapter 216; or
4. Make any other decision warranted by the
facts, KRS Chapter 216, and this administrative regulation.
(7) The hearing shall
be the only hearing as it relates to cabinet findings regarding fines,
citations and cited deficiencies concerning transfer and discharge rights under
this or any licensure regulations.
(8) The hearing officer's decision shall be
the final determination of the cabinet. The cabinet shall forward the decision
to the resident and facility within ten (10) days of the receipt of the hearing
(9) no hearing
officer shall participate in any hearing involving a facility with which he has
had in the past twelve (12) months preceding the hearing, any ownership, in
whole or in part, employment, fiduciary, contractual creditor or consultative
relationship or any familial relation to the resident.
(10) A judicial review may be accorded the
resident or facility as specified in