921 KAR 2:055 - Hearings and appeals
RELATES TO: KRS Chapter 13B, 23A.010, 45.237, 199.892, 205.211, 205.231, 205.237, 45 C.F.R. 205.10, 30 U.S.C. 901 - 944, 38 U.S.C. 1101 - 1163, 1501 - 1525, 42 U.S.C. 401 - 434, 601 - 619, 1381 - 1383f, 8621 - 8630, 9857-9858q, 45 U.S.C. 231 - 231v
NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.010(2) requires the Cabinet for Health and Family Services to administer income-supplement programs that protect, develop, preserve, and maintain families and children in the Commonwealth. KRS 194A.050(1) requires the secretary to promulgate, administer, and enforce those administrative regulations necessary to implement programs mandated by federal law or to qualify for the receipt of federal funds and necessary to cooperate with other state and federal agencies for the proper administration of the cabinet and its programs. 42 U.S.C. 602 and 42 U.S.C. 8624 require states receiving Temporary Assistance for Needy Families (TANF) and Low Income Home Energy Assistance Program (LIHEAP) grants, respectively, to provide a grievance procedure for participants and outline this procedure in the applicable state plan. KRS 199.8994(1) requires the cabinet to administer all child care funds to the extent allowable under federal law or regulation and in a manner that is in the best interest of the clients to be served. KRS Chapter 13B establishes the hearing process to be followed in the Commonwealth, and KRS 205.231(5) requires the cabinet to promulgate administrative regulations for the hearing process. This administrative regulation establishes the requirements to be followed in conducting a hearing related to the Kentucky Transitional Assistance Program (KTAP) the Low-Income Home Energy Assistance Program (LIHEAP), the State Supplementation Program (SSP), or an applicant or a recipient of the Child Care Assistance Program (CCAP).
Section 1.
Hearing Information.
(1) A participant shall
be informed of:
(a) The right to a
hearing;
(b) The procedures for
requesting a hearing, as established in Section 3 of this administrative
regulation; and
(c) Who may
represent the participant in a hearing, as established in Section 2 of this
administrative regulation.
(2) When the participant files an
application, the cabinet shall inform the participant of the right to hearing
both orally and in writing.
(3)
When an action is taken that affects the benefits of the participant, the
cabinet shall inform the participant of the right to hearing in
writing.
Section 2.
Request for a Hearing.
(1) An individual shall
request a hearing by:
(a) Submitting a written
request; or
(b) Making an oral
request.
(2) The hearing
request may be:
(a) Submitted to the local
Department for Community Based Services office; or
(b) Sent to the Cabinet for Health and Family
Services, Division of Administrative Hearings, Families and Children
Administrative Hearings Branch, 105 Sea Hero Road, Suite 2, Frankfort, Kentucky
40601.
(3) The reason for
the hearing shall be included in the hearing request.
Section 3. Timeframe for Hearing Request.
(1) A written or oral request for a hearing
shall be considered timely if received by the cabinet within:
(a) Forty (40) days of the date of the
advance notice of adverse action;
(b) Thirty (30) days of the notice of:
1. Denial of an application; or
2. Decrease or discontinuance of an active
case; or
(c) The time
period the action is pending if the hearing issue is a delay in
action.
(2) If a hearing
officer determines an appellant meets good cause criteria in accordance with
subsection (3) of this section, the appellant may be granted up to an
additional thirty (30) days to submit a hearing request.
(3) An appellant may be granted good cause by
the cabinet:
(a) For:
1. A delay in requesting a hearing;
2. A delay in requesting a continuation of
benefits;
3. Failure to appear for
a hearing; or
4. Postponement of a
scheduled hearing; and
(b) If the appellant:
1. Was away from home during the entire
filing period;
2. Is unable to read
or to comprehend the right to request a hearing on an adverse action
notice;
3. Moved, resulting in
delay in receiving or failure to receive the adverse action notice;
4. Had a household member who was seriously
ill;
5. Was not at fault for the
delay of the request, as determined by the hearing officer; or
6. Did not receive the notice.
Section 4.
Continuation of Assistance Program Benefits.
(1) If a hearing is requested, benefits shall
remain inactive or reduced pending the issuance of a final order unless the
appellant requests a continuation of benefits.
(2) Benefits shall be reinstated to the
benefit level that was received prior to the adverse action being taken if the
request for a continuation of benefits is received within:
(a) Ten (10) days of the date on the notice
of adverse action; or
(b) Twenty
(20) days of the date on the notice of adverse action or notice if the reason
for delay meets the good cause criteria contained in Section 3(3) of this
administrative regulation.
(3) If the program benefit has been reduced
or discontinued as a result of a change in law or administrative regulation,
subsection (2) of this section shall not apply.
(4) If the action taken by the agency is
upheld, continued, or reinstated benefits shall be:
(a) Considered overpayments as defined in
KRS 205.211; and
(b) Collected in accordance with
KRS 45.237.
Section 5. Hearing Notification.
(1) The Division of Administrative Hearings,
Families and Children Administrative Hearings Branch, shall acknowledge a
hearing request.
(2) In accordance
with KRS 13B.050, the notice of the hearing shall
contain information regarding the:
(a) Hearing
process, including the right to case record review prior to the
hearing;
(b) Right to
representation;
(c) Availability of
free representation by legal aid or assistance from other organizations within
the community; and
(d) Time and
location of the hearing.
(3) The cabinet may deny or dismiss a hearing
request in accordance with 45 C.F.R.
205.10(a)(5)(v).
Section 6. Withdrawal or Abandonment of
Request.
(1) The appellant may withdraw a
hearing request prior to the:
(a) Hearing;
or
(b) Final order being issued if
the hearing has already been conducted.
(2) The cabinet shall consider a hearing
request abandoned if the appellant or authorized representative fails to:
(a) Appear for the scheduled hearing without
notifying the cabinet prior to the hearing; and
(b) Establish good cause for failure to
appear, in accordance with the criteria specified in Section 3(3) of this
administrative regulation, within ten (10) days of the scheduled hearing
date.
Section
7. Appellant's Hearing Rights.
(1) In addition to the rights described in
Section 5 of this administrative regulation, the appellant shall have the right
to submit additional information in support of the claim.
(2) The appellant shall have the right to a
medical assessment or professional evaluation at the expense of the cabinet by
a source:
(a) Not associated with the original
action; and
(b) Agreeable to both
the appellant and the cabinet if:
1. The
hearing involves medical issues; and
2. The hearing officer considers it
necessary.
(3)
If a request for a medical assessment at cabinet expense is received and denied
by the hearing officer, the denial shall:
(a)
Be in writing; and
(b) Specify the
reason for the denial.
Section 8. Postponement of a Hearing.
(1) An appellant shall be entitled to a
postponement of a hearing if the:
(a) Request
for the postponement is made prior to the hearing; and
(b) Need for the delay is due to an essential
reason beyond the control of the appellant in accordance with good cause
criteria contained in Section 3(3) of this administrative
regulation.
(2) The
hearing officer shall decide if a hearing is postponed.
(3) The postponement of a hearing shall not
exceed thirty (30) days from the date of the request for
postponement.
Section 9.
Conduct of a Hearing.
(1) A hearing shall be:
(a) Scheduled by the hearing officer;
and
(b) Conducted in accordance
with KRS 13B.080 and
13B.090.
(2) A hearing officer shall make an effort to
conduct a hearing at a location within the state that is convenient for the
appellant and other parties involved.
(3) To secure all pertinent information on
the issue, the hearing officer may:
(a)
Examine each party or witness who appears; and
(b) If necessary, collect additional evidence
from a party.
(4)
(a) If consent is obtained from each party to
the appeal and from each party required to testify under oath, a telephonic
hearing may be conducted.
(b)
Parties to a telephonic hearing shall:
1.
Submit all available documentary evidence to be used during the hearing to the
hearing officer and the opposing party prior to the hearing being convened;
and
2. Within the timeframe
specified by the hearing officer, mail the hearing officer and opposing party
any documents or written materials that:
a.
Are introduced as evidence into the hearing record; and
b. Have not been supplied to the opposing
party prior to the hearing.
(5) If evidence addressed in subsection
(4)(b) of this section is not provided to the hearing officer and the opposing
party, the evidence may be excluded from the hearing record.
Section 10. A Recommended Order.
(1) After the hearing has concluded, the
hearing officer shall draft a recommended order in accordance with
KRS 13B.110 that:
(a) Summarizes the facts of the
case;
(b) Specifies the:
1. Reasons for the recommended order;
and
2. Address to which a party in
the hearing may send an exception to the recommended order;
(c) Identifies the:
1. Findings of fact;
2. Conclusions of law;
3. Supporting evidence; and
4. Applicable state and federal regulations;
and
(d) Addresses the
parties' arguments.
(2) A
copy of the recommended order shall be sent simultaneously to the:
(a) Appellant or representative;
and
(b) Department for Community
Based Services, Division of Family Support.
(3) A recommended order shall become a final
order for an administrative hearing upon review and acceptance by the agency
head, in accordance with
KRS 13B.120(2), unless a written
exception is filed pursuant to Section 11 of this administrative
regulation.
Section 11.
Written Exceptions and Rebuttals.
(1) If a
party to a hearing disagrees with the recommended order, the party may file a
written exception in accordance with
KRS 13B.110(4) with the
secretary or the secretary's designee.
(2) A written exception or rebuttal shall:
(a) Be filed within fifteen (15) days of the
date the recommended order was mailed;
(b) Be based on facts and evidence presented
at the hearing;
(c) Not refer to
evidence that was not introduced at the hearing; and
(d) Be sent to each other party involved in
the hearing.
Section
12. Final Order.
(1) The
secretary or the secretary's designee shall issue a final order in accordance
with KRS 13B.120.
(2) The secretary or the secretary's designee
may reverse the decision in subsection (1) of this section if the following
criteria are met:
(a) The correct
determination of eligibility based on incapacity or disability is the only
issue being considered in the secretary or the secretary's designee decision;
and
(b) Within twenty (20) days of
the hearing officer's decision, the appellant, or household member whose
incapacity or disability is the issue of the hearing, receives and provides to
the secretary or the secretary's designee an award letter for benefits based on
disability including:
(3) A party aggrieved by
the decision of the secretary or the secretary's designee may pursue judicial
review of the decision in accordance with
KRS 13B.140 to
13B.160.
Section 13. Payments of Assistance.
(1) Payments of assistance shall be made
within ten (10) days of the receipt of a final order and shall include:
(a) The month of application; or
(b) If it is established that the appellant
was eligible during the entire period in which assistance was withheld, a month
in which incorrect action of the cabinet adversely affected the
appellant.
(2) For
reversals involving reduction of benefits, action shall be taken to restore
benefits within ten (10) days of the receipt of a final
order.
Section 14.
Limitation of Fees.
(1) The cabinet shall not
be responsible for payment of attorney fees.
(2) Pursuant to
KRS 205.237, an attorney representing an
appellant shall not charge more than the following amounts for his services:
(a) Seventy-five (75) dollars for preparation
and appearance at a hearing before a hearing officer;
(b) Seventy-five (75) dollars for preparation
and presentation, including any briefs, of appeals to the secretary or the
secretary's designee;
(c) $175 for
preparation and presentation, including pleadings and appearance in court, of
appeals to the circuit court; or
(d) $300 for preparatory work, briefs, and
other materials related to an appeal to the Court of Appeals.
(3) The cabinet shall approve the
amount of a fee, if the:
(a) Appellant and
legal counsel agree to the fee; and
(b) Fee is within the maximums specified in
subsection (2) of this section.
(4) Collection of an attorney fee shall:
(a) Be the responsibility of the counsel or
agent; and
(b) Not be deducted from
the benefits provided to an appellant.
Notes
STATUTORY AUTHORITY: KRS 13B.170, 194A.010(2), 194A.050(1), 199.8994, 205.231(5), 42 U.S.C. 602, 8624
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