11 KAR 3:100. Administrative wage garnishment.

 

      RELATES TO: KRS 164.744(1), 164.748(4), (10), (20), 164.753(2), 34 C.F.R. 682.410(b)(9), 20 U.S.C. 1071-1087-2, 1095a

      STATUTORY AUTHORITY: KRS 164.748(4), 164.753(2), 20 U.S.C. 1095a

      NECESSITY, FUNCTION, AND CONFORMITY: Pursuant to KRS 164.744(1) and 164.748(2), the Kentucky Higher Education Assistance Authority has entered into agreements with the secretary to provide loan guarantees in accordance with 20 U.S.C. 1071 through 1087-2. 20 U.S.C. 1095a permits a student loan guarantee agency to garnish the disposable pay of a borrower to recover a loan guaranteed pursuant to 20 U.S.C. 1071 through 1087-2, notwithstanding a provision of state law. That section also permits the student loan guarantee agency to establish procedures for requesting and conducting a hearing related to the wage garnishment. KRS 164.748(10) authorizes the authority to collect from borrowers loans on which the authority has met its guarantee obligation, and KRS 164.748(20) authorizes the authority to conduct administrative hearings, exempt from KRS Chapter 13B, pertaining to wage garnishment. This administrative regulation establishes the procedures for implementing wage garnishment in accordance with requirements of the federal act.

 

      Section 1. (1) Following payment of a claim by the authority to a participating lender by reason of the borrower's default in repayment of an insured student loan, the authority, acting through its executive director or other designee, may issue an administrative order for the withholding of the debtor's disposable pay, which order shall conform to the requirements of this section.

      (2) This administrative regulation shall apply to a debtor who is either a borrower or an endorser of an insured student loan.

      (3) An order for withholding of disposable pay shall not be issued under this section nor become effective less than thirty (30) days after the authority provides a written notice to the debtor by personal service or mail, addressed to the debtor at the residence or employment location last known to the authority. The notice shall include at least the following information:

      (a) The name and address of the debtor;

      (b) The amount of the debt determined by the authority to be due;

      (c) Information sufficient to identify the basis for the debt;

      (d) A statement of the intention of the authority to issue an order for withholding of disposable pay;

      (e) A statement of the right to dispute the existence, amount, or enforceability of the debt or the terms of a proposed repayment schedule under the garnishment order (other than a repayment schedule agreed to in writing pursuant to paragraph (g) of this subsection);

      (f) A statement of the right to inspect and copy any records relating to the debt open to inspection in accordance with KRS 61.870 through 61.884;

      (g) A statement of the opportunity to enter into a written agreement with the authority, on terms satisfactory to the authority, establishing a schedule for repayment of the debt;

      (h) A statement that, unless there is good cause determined by the authority for the debtor's failure to timely request a hearing, the debtor's acquiescence to the withholding of disposable pay shall be presumed; and

      (i) A statement that if the debtor requests a hearing, but fails to appear without good cause determined by the hearing officer, the hearing officer shall affirm the issuance of an order for withholding of disposable pay.

      (4) An amount shall not be withheld from the disposable pay of an individual during the first twelve (12) consecutive months of reemployment commenced within twelve (12) months following an involuntary separation from employment.

      (5) Establishment of a written repayment schedule in accordance with subsection (3)(g) of this section shall be, for purposes of subsection (3)(e) of this section, conclusive acknowledgement by the debtor of the existence and amount of debt agreed to be paid.

 

      Section 2. (1)(a) A hearing shall be provided if the debtor, on or before the 30th day following the date on which the notice required by Section 1(3) of this administrative regulation is mailed, files with the authority a written request for a hearing in accordance with procedures prescribed by this administrative regulation. The timely filing of a request for a hearing (evidenced by a legibly dated U.S. Postal Service postmark or mail receipt) shall automatically stay further collection activity under this administrative regulation pending the outcome of the hearing.

      (b) If the debtor requests a hearing, but the request is not timely filed, a hearing shall be provided, but the request shall not stay further action pending the outcome of the hearing provided a decision is rendered in the case by the 60th day following receipt of the request for a hearing. If a final decision is not entered within the sixty (60) day period following receipt of a request for a hearing, the withholding order shall be suspended on the 61st day until a final decision is entered.

      (c) A hearing officer, appointed by the authority (who shall not be an individual under the supervision or control of the board other than an administrative law judge), shall conduct the hearing.

      (d) The hearing shall be held during regular business hours: Monday through Friday between the hours of 9 a.m. and 4 p.m. Eastern Standard Time.

      (e) A hearing officer shall voluntarily disqualify himself and withdraw from a case in which he cannot afford a fair and impartial hearing or consideration.

      1. A party shall request the disqualification of a hearing officer by filing an affidavit, upon discovery of facts establishing grounds for a disqualification, stating the particular grounds upon which he claims that a fair and impartial hearing cannot be accorded.

      2. The request for disqualification and the disposition of the request shall be a part of the official record of the proceeding.

      3. Grounds for disqualification of a hearing officer shall include the following:

      a. Participating in an ex parte communication which would prejudice the proceedings;

      b. Having a pecuniary interest in the outcome of the proceeding; or

      c. Having a personal bias toward a party to a proceeding which would cause a prejudgment on the outcome of the proceeding.

      (f) A dispute hearing shall be conducted in Franklin County or another location agreed to by the parties.

      (g) In lieu of an in-person hearing, upon request of the debtor, a hearing may be conducted by telephone or the hearing officer may conduct a review based solely upon submission of written material by both the debtor and the authority. An in-person or telephonic hearing shall be mechanically, electronically, or stenographically recorded.

      (h) Unless required for the disposition of an ex parte matter specifically authorized by this administrative regulation, a hearing officer shall not communicate off the record with a party to the hearing concerning a substantive issue, while the proceeding is pending.

      (2)(a) The hearing officer's decision, reason therefore, and an explanation of the appeal process shall be rendered in writing no more than sixty (60) days after receipt by the authority of the request for the hearing. The decision shall establish the debtor's liability, if any, for repayment of the debt and the amount to be withheld from the debtor's disposable pay.

      (b) Subject to subsection (3)(b) of this section, the hearing officer's decision shall be final and conclusive pertaining to the right of the authority to issue an administrative order for the withholding of the debtor's disposable pay.

      (c) A person, upon request, shall receive a copy of the official record at the cost of the requester. The party requesting a recording or transcript of the hearing shall be responsible for transcription costs. The official record of the hearing shall consist of:

      1. All notices, pleadings, motions, and intermediate rulings;

      2. Any prehearing order;

      3. Evidence received and considered;

      4. A statement of matters officially noticed;

      5. Proffers of proof and objections and rulings thereon;

      6. Ex parte communications placed upon the record by the hearing officer;

      7. A recording or transcript of the proceedings; and

      8. The hearing officer's decision or an order of the hearing officer issued pursuant to Section 3(2)(e) of this administrative regulation.

      (3)(a) Following the issuance of the hearing officer's decision, the debtor or the authority may petition the board to review the decision.

      (b) An adverse decision by the hearing officer shall be appealed in writing to the board not later than twenty (20) calendar days after the date of the hearing officer's decision. A petition for review of the hearing officer's decision shall be timely filed if received by the executive director within twenty (20) calendar days after the date of the hearing officer's decision. If there is no appeal to the board within twenty (20) days, the findings of the hearing officer shall be conclusive and binding upon the parties.

      (c) A petition for review of the hearing officer's decision shall not stay a final order pending the outcome of the review. If the debtor's liability is established by the hearing officer's decision, an administrative order for withholding of disposable pay shall be issued by the authority within sixty (60) days after the date of the hearing officer's decision. If the debtor petitions the board to review the hearing officer's decision and obtains reversal, modification, or remand of the hearing officer's decision, the authority shall return to the debtor any money received pursuant to the withholding order contrary to the final order of the board.

      (d) The respondent may, within ten (10) calendar days from the date the petition was received by the executive director, provide a brief statement to the board responding to the petition of review. The response shall be timely filed if received by the executive director within ten (10) calendar days from receipt by the executive director of the petition for review.

      (e) A petition for review of the hearing officer's decision shall contain the following information:

      1. A concise statement of the reason that the petitioner asserts as the basis pursuant to paragraph (g) of this subsection for reversing, modifying, or remanding the hearing officer's decision or an order of the hearing officer issued pursuant to Section 3(2)(e) of this administrative regulation;

      2. A statement specifying the part of the official record that the petitioner relies upon to support reversing, modifying, or remanding the hearing officer's decision pursuant to paragraph (g) of this subsection; and

      3. A statement of whether the petitioner believes that oral argument to the board is necessary.

      (f) The board shall review the hearing officer's decision at its next regularly scheduled meeting convened at least thirty (30) days after the petition for review of the hearing officer's decision is received or at a special meeting convened for that purpose within ninety (90) days after receipt of the petition for review of the hearing officer's decision, whichever first occurs.

      (g) The board shall decide the dispute upon the official record, unless there is fraud or misconduct involving a party, and may consider oral arguments by the debtor and the authority. The board shall:

      1. Not substitute its judgment for that of the hearing officer as to the weight of the evidence on questions of fact; and

      2.a. Uphold the hearing officer's decision unless it is clearly unsupported by the evidence and the applicable law;

      b. Reject or modify, in whole or in part, the hearing officer's decision; or

      c. Remand the matter, including an order of the hearing officer issued pursuant to Section 3(2)(e) of this administrative regulation, in whole or in part, to the hearing officer for further proceedings if it finds the hearing officer's final order is:

      (i) In violation of constitutional or statutory provisions;

      (ii) In excess of the statutory authority of the agency;

      (iii) Without support of substantial evidence on the whole record;

      (iv) Arbitrary, capricious, or characterized by abuse of discretion; or

      (v) Based on an ex parte communication which substantially prejudiced the rights of a party and likely affected the outcome of the hearing.

      (h) The final order of the board shall be in writing. If the final order differs from the hearing officer's decision, it shall include separate statements of findings of fact and conclusions of law.

      (4) The remedies provided in this section shall not:

      (a) Preclude the use of other judicial or administrative remedies available to the authority under state or federal law; and

      (b) Be construed to stay the use of another remedy.

 

      Section 3. Hearing Procedure. (1) The debtor shall have the right to be heard by the hearing officer, be represented by counsel, present evidence, cross examine, and make both opening and closing statements.

      (2)(a) Upon request of a party, the hearing officer may issue a subpoena for the production of a document or attendance of a witness.

      (b)1. Not more than ten (10) business days after the date of filing the request for a hearing or a review of written material, the debtor shall submit to the counsel for the authority a written statement specifically stating the basis of dispute.

      2. Not less than fifteen (15) business days prior to the hearing, the parties shall:

      a. Confer and jointly stipulate the issues that are in controversy to be resolved by the hearing officer;

      b. Discuss the possibility of informal resolution of the dispute;

      c. Exchange a witness list of the names, addresses, and phone numbers of each witness expected to testify at the hearing and a brief summary of the testimony of each witness that the party expects to introduce into evidence; and

      d. Exchange an exhibit list identifying documents to be admitted into evidence at the hearing and provide a legible copy of all exhibits.

      3.a. If the debtor is unavailable or otherwise fails to confer and jointly stipulate the issues pursuant to subparagraph 2 of this paragraph, the authority shall serve upon the debtor proposed stipulation of issues. If within five (5) calendar days, the debtor fails to respond to the proposed stipulation of issues, the debtor shall be precluded from raising an additional issue not identified in the proposed stipulation of issues.

      b. If the debtor is unavailable or otherwise fails to cooperate in a timely manner for the exchange of the witness or exhibit lists, the debtor shall be precluded from admitting the information as part of the evidence at the hearing.

      4. The authority shall provide to the hearing officer the documentation submitted in accordance with subparagraph 1 of this paragraph and shall report to the hearing officer the results of the discussions between the parties described in subparagraphs 2 and 3 of this paragraph.

      5. Additional time for compliance with the requirements of this paragraph may be granted by the hearing officer, upon request, if it does not prejudice the rights of the authority or delay the rendering of a hearing decision within the time prescribed in this subsection.

      6. If the debtor requests a hearing, but the debtor's written statement and supporting documentation, considered from a viewpoint most favorable to the debtor, does not reflect a genuine issue of fact or prima facie defense to the legal enforceability of the authority's claim, the hearing officer, on petition of the authority and notice to the debtor, may enter an order dismissing the request for a hearing and authorizing issuance of the order described in Section 5 of this administrative regulation.

      (c) Facts recited in the authority's notice pursuant to Section 1(3) of this administrative regulation that are not denied shall be deemed admitted. Each party shall remain under an obligation to disclose new or additional items of evidence or witnesses which may come to their attention as soon as practicable.

      (d)1. Either party, without leave of the hearing officer, may depose a witness, upon reasonable notice to the witness and the opposing party, and submit to the opposing party interrogatories or request for admissions.

      2. The party receiving interrogatories or request for admissions shall respond within fifteen (15) calendar days.

      3. Each matter of which an admission is requested shall be deemed admitted unless, within fifteen (15) days after service of the request or a shorter or longer time that the hearing officer may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter.

      (e) Sufficient grounds for entry of an appropriate order by the hearing officer, including postponement, exclusion of evidence, dismissal of the appeal, quashing the withholding order, or vacating the stay, shall exist if there is:

      1. Noncompliance with this subsection;

      2. Failure of the authority to:

      a. Timely appoint a hearing officer; or

      b. Respond to a request for inspection of records; or

      3. Failure of the debtor to submit information in accordance with paragraph (b) of this subsection.

      (3) Order of proceeding.

      (a) The hearing officer shall:

      1. Convene an in-person or telephonic hearing;

      2. Identify the parties to the action and the persons participating;

      3. Admit into evidence the notice required by Section 1(3) of this administrative regulation and the debtor's statement and the stipulations required by subsection (2)(b)1 and 2 of this section;

      4. Solicit from the parties and dispose of any objections or motions;

      5. Accept into evidence any documentary evidence not objected to;

      6. Solicit opening statements; and

      7. Proceed with the taking of proof.

      (b) The taking of proof shall commence first by the debtor and then by the authority, with opportunities for cross-examination, rebuttal, and closing statements.

      (4) Rules of evidence.

      (a) All testimony shall be made under oath or affirmation.

      1. The hearing officer shall not admit evidence that is excludable as a violation of an individual's constitutional or statutory rights or a privilege recognized by the courts of the Commonwealth.

      2. Statutes or judicial rules pertaining to the admission of evidence in a judicial proceeding shall not apply to a hearing under this section.

      3. The hearing officer may receive evidence deemed reliable and relevant, including evidence that would be considered hearsay if presented in court, except that hearsay evidence shall not be sufficient in itself to support the hearing officer's decision.

      4. A copy of a document shall be admissible if:

      a. There is minimal authentication to establish a reasonable presumption of its genuineness and accuracy; or

      b. It is admitted without objection.

      5. The hearing officer may exclude evidence deemed unreliable, irrelevant, incompetent, immaterial, or unduly repetitious.

      (b) An objection to an evidentiary offer may be made by any party and shall be noted in the record.

      (c) The hearing officer:

      1. May take official notice of:

      a. Statutes and administrative regulations;

      b. Facts which are not in dispute; and

      c. Generally-recognized technical or scientific facts;

      2. Shall notify all parties, either before or during the hearing of a fact so noticed and its source; and

      3. Shall give each party an opportunity to contest facts officially noticed.

      (d) At the discretion of the hearing officer, the parties may be allowed up to fifteen (15) days following the hearing to submit written arguments or briefs.

      (5) Upon request of either party, the record of the hearing shall be transcribed, and shall be available to the parties at their own expense.

      (6) Burden of proof.

      (a) The authority shall have the burden to establish the existence and amount of the debt.

      (b) The debtor shall have the burden to establish an affirmative defense.

      (c) The party with the burden of proof on an issue shall have the burden of going forward and the ultimate burden of persuasion as to that issue. The ultimate burden of persuasion shall be met by a prima facie establishment of relevant, uncontroverted facts or, if relevant facts are disputed, a preponderance of evidence in the record.

      (d) Failure to meet the burden of proof shall be grounds for a summary order from the hearing officer.

 

      Section 4. Defenses. (1) Except as provided in subsection (2) of this section, a debtor may assert a defense to the issuance of an administrative order to withhold the debtor's disposable pay, legal or equitable, pertaining to the existence, amount, or enforceability of the debt or the terms of a proposed repayment schedule under the garnishment order (other than a repayment schedule agreed to in writing pursuant to Section 1(3)(g) of this administrative regulation).

      (2) The hearing officer shall not consider as a defense a question of law or fact that has previously been adjudicated by a court of competent jurisdiction or by an independent third-party trier of fact in an administrative proceeding involving the debtor and the authority pertaining to the existence, amount, or the debtor's liability on the particular debt in question or the terms of a prior repayment schedule.

      (3) If the debtor asserts as a defense a question of law or fact that was previously raised in an administrative proceeding before the authority pursuant to 11 KAR 4:030 or 11 KAR 4:050, the hearing officer:

      (a) Shall:

      1. Consider the matter; and

      2. Give deference to the prior decision by the authority in the same manner that a court would give deference in reviewing the decision of an administrative agency; and

      (b) May reverse the prior decision if the debtor presents evidence that:

      1. Circumstances have changed or new information is available; or

      2. The prior decision:

      a. Substantially disregarded or ignored the defense; or

      b. Was arbitrary, capricious, not supported by the facts, or made through fraud.

      (4) If the debtor asserts as a defense a claim of entitlement to discharge of the particular debt pursuant to 34 C.F.R. 682.402, except for reason of bankruptcy, but has not previously sought discharge by the authority for that specific reason, the hearing officer shall stay the hearing for a period sufficient to permit the debtor to submit documentation to the authority for a determination of eligibility for entitlement to the discharge. At the expiration of the period of stay, the hearing officer shall review the circumstances and:

      (a) Uphold the right of the authority to issue an order of wage withholding if the debtor has failed to submit documentation to the authority for review of entitlement to discharge;

      (b) Dismiss the request for hearing if the debtor has submitted documentation and the authority has approved discharge of the debt; or

      (c) Proceed with the hearing if the debtor submitted documentation and the authority denied discharge, except that the hearing officer shall consider the defense of entitlement to discharge in accordance with subsection (3) of this section.

      (5) If the debtor asserts as a defense a claim that the debt was dischargeable in a previous bankruptcy pursuant to 11 U.S.C. 523(a)(8), but the debtor did not previously seek discharge by the bankruptcy court, the hearing officer shall stay the hearing for a period sufficient to permit the debtor to reopen the bankruptcy case. At the expiration of the period of stay, the hearing officer shall review the circumstances and:

      (a) Uphold the right of the authority to issue an order of wage withholding if the debtor has failed to obtain the bankruptcy court's permission to reopen the bankruptcy case to seek discharge of the particular debt; or

      (b) Dismiss the request for hearing if the bankruptcy court has reopened the bankruptcy case to consider discharge of the particular debt.

      (6)(a) If the debtor asserts as a defense a claim that withholding of his disposable pay would constitute an extreme financial hardship, the debtor shall submit documentation of all available resources and actual expenses and shall have the burden of demonstrating the necessity of actual expenses.

      (b) The hearing officer shall compare the debtor's available resources and the necessary expenses and current debt obligations of the debtor and debtor's dependents. The hearing officer shall determine that extreme financial hardship exists if the debtor currently is not able to provide at least minimal subsistence for the debtor and debtor's dependents that could be claimed on a federal income tax return. The hearing officer shall consider as available resources of the debtor income of the debtor, the debtor's spouse, and debtor's dependents from all sources, including nontaxable income and government benefits, expenses paid on behalf of the debtor by another person, and the cash value of any current liquid assets, such as bank accounts and investments. The hearing officer shall consider the claim of extreme financial hardship in accordance with the presumptions established in this paragraph.

      1. Withholding of an amount of disposable pay shall constitute an extreme financial hardship if the debtor’s available resources from all sources do not exceed the applicable poverty guideline, multiplied by 125 percent, based on the debtor’s family size and state of residence. The poverty guidelines to be utilized for this purpose shall be the latest federal poverty measurement guidelines issued by the United States Department of Health and Human Services and published annually in the Federal Register, under the authority of 42 U.S.C. 9902(2).

 

      Section 5.(1) An administrative order issued by the authority to withhold disposable pay shall be served upon the debtor's employer personally or by mail. A notice of the issuance of the order shall be provided to the debtor by regular first class mail. The order shall require the withholding and delivery to the authority of not more than fifteen (15) percent of the debtor's disposable pay, except that a greater percentage may be deducted upon the written consent of the debtor.

      (2) The order shall state the amount or percentage to be withheld and the amount of the debt, the statutory and regulatory basis therefore, and the time withholding is to begin.

      (3) The order shall continue to operate until the debt is paid in full with interest accrued and accruing thereon at the prescribed rate in the promissory note or applicable law and collection costs that may be charged to the borrower under the promissory note or applicable law. The order shall have the same priority as provided to a judicially ordered garnishment prescribed in KRS 425.506.

      (4) An employer who has been served with an administrative order for withholding of earnings shall answer the order within twenty (20) days, and shall provide a copy to the debtor the first time that withholding occurs and each time thereafter that a different amount is withheld. The employer shall be liable to the authority for a lawfully due amount which the employer fails to withhold from disposable pay due the debtor following receipt of the order, plus attorneys' fees, costs, and, in the discretion of a court of competent jurisdiction, punitive damages.

      (5) A withholding under this section shall not be grounds for discharge from employment, refusal to employ, or disciplinary action against an employee subject to withholding under this section.

      (6) The employer shall have no liability or further responsibility after properly, completely, and timely fulfilling the duties under this section.

 

      Section 6.(1) Whenever this administrative regulation requires delivery of a notice, subpoena, or other communication by personal service, the service shall be made by:

      (a) An officer authorized under KRS 454.140 to serve process; or

      (b) A person over the age of eighteen (18) years of age, who shall prove service by affidavit or by the signature of the person being served.

      (2) Receipt of a notice or other communication by the debtor shall be rebuttably presumed if the person to be served or another adult with apparent authority at the place of residence or employment last known to the authority signs a receipt or refuses to accept the notice or communication after identification and offer of delivery to the person so refusing.

      (3) For an administrative order to withhold disposable pay served upon an employer, receipt shall provide a rebuttable presumption if:

      (a) The person to whom the order is directed signs or refuses to sign a receipt; or

      (b) His employee or agent with apparent authority signs or refuses to sign a receipt. (18 Ky.R. 3541; Am. 414; eff. 8-20-92; 19 Ky.R. 2475; 96; eff. 8-5-93; 21 Ky.R. 49; eff. 9-12-94; 25 Ky.R. 375; 798; eff. 10-1-98; 26 Ky.R. 847; eff. 12-16-99; 2257; 27 Ky.R. 453; eff. 8-14-2000; 3290; eff. 8-15-01; 29 Ky.R. 146; eff. 10-7-02; 30 Ky.R. 338; 821; eff. 10-31-03; 31 Ky.R. 116; eff. 9-13-04; 31 Ky.R. 1830; 32 Ky.R. 14; eff. 8-5-05; 33 Ky.R. 162; 698; eff. 10-6-06; 34 Ky.R. 93; eff. 9-10-07; 35 Ky.R. 63; eff. 9-8-08; 36 Ky.R. 109; eff. 10-12-09; 37 Ky.R. 71; eff. 10-1-2010; 37 Ky.R 1736; 4-1-2011; 38 Ky.R. 49; 464; eff. 10-7-11; 38 Ky.R. 1977; 39 Ky.R. 187; eff. 8-31-2012; 40 Ky.R. 58; eff. 9-9-13; 41 Ky.R. 817; 1485; eff. 2-6-2015.)