EDUCATION AND WORKFORCE DEVELOPMENT CABINET

Education Professional Standards Board

(Amended After Comments)

 

      16 KAR 1:030. Procedures for educator certificate surrender, revocation, suspension, reinstatement, and reissuance, and for application denial.

      RELATES TO: KRS 161.028(1), 161.120, 218A.010(5)

      STATUTORY AUTHORITY: KRS 161.028(1), 161.120(1), 161.175(2)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 161.028(1) authorizes the Education Professional Standards Board to establish standards and requirements for obtaining and maintaining an educator’s[a teaching] certificate. The EPSB is authorized to revoke, suspend, or refuse to issue or renew; impose probationary or supervisory conditions upon; issue a written reprimand or admonishment; or any combination of those actions regarding any certificate issued to Kentucky certified educators for reasons delineated in KRS 161.120(1). KRS 161.175(2) authorizes the Education Professional Standards Board to promulgate administrative regulations requiring an educator[a teacher] whose certificate has been suspended or revoked by the Education Professional Standards Board because the educator[teacher] engaged in misconduct involving the illegal use of controlled substances to submit to drug testing. This administrative regulation identifies the conditions for initiating a disciplinary action against an educator’s[a teaching or administrative] certificate and establishes procedures for certificate reinstatement, reissuance, and application denial.

 

      Section 1. Purpose. (1) In order to support the mission of the Education Professional Standards Board (EPSB), the EPSB may take action against an educator’s certificate in an effort:

      (a) To ensure that an educator has an understanding of an educator’s professional duties and responsibilities; and

      (b) To protect students, parents of students, school personnel, or school officials.

      (2) The board may take action against any certificate issued under KRS 161.010 to 161.100 for any of the reasons set forth in KRS 161.120(1).

 

      Section 2. Complaints and Reports. (1) A complaint may be made by any person, organization, or entity. The complaint shall be in writing and shall be signed by the person offering the complaint. The complaint shall be sent to the offices of the EPSB. The complaint shall contain:

      (a) The name, phone number, and address of the person making the complaint, and the name of the educator against whom the complaint is made. If known, the person making the complaint shall include the address of the school district where the educator works; and

      (b) A clear and concise description of the issues of fact.

      (2) A report shall be sent to the EPSB by superintendents of local school districts pursuant to KRS 161.120(2)(a).

      (a) A superintendent’s duty to report shall include the reporting of criminal convictions discovered by the district pursuant to KRS 160.380 even if the conviction occurred prior to the date the educator’s certification was issued.

      (b) The superintendent or the superintendent’s designee shall have thirty (30) days from the date that superintendent receives notice of the criminal conviction to report that criminal conviction to the EPSB pursuant to KRS 161.120(2)(a).

      (3) EPSB staff shall do an initial review of all complaints and reports to determine whether there is sufficient credible evidence that a violation of KRS 161.120(1) may have occurred. If the report or complaint contains sufficient credible evidence that a violation of KRS 161.120(1) may have occurred, EPSB staff shall open a file and assign that file a number.

      (a) The EPSB staff shall send a copy of these complaints and reports by certified mail to the educator’s address on file with EPSB.

      (b) The educator shall have the right to file a rebuttal with the EPSB within thirty (30) calendar days from the date the educator receives the complaint or report from the EPSB unless the parties agree to extend that deadline.

      (c) Upon receipt of the educator’s rebuttal or return of the notice as undeliverable, EPSB staff shall add the case to the EPSB’s docket and prepare the file for board review by redacting all educator’s identifiers.

      (d) The board shall determine whether the nature and quality of the alleged violation warrants dismissal, training, admonishment, further investigation, or initiation of a hearing.

      (e) In making its determination, the board shall consider if the allegation, if proven, would warrant sanction by the board.

      (f) When making a determination as to the level of sanctions warranted, the board shall consider the following factors:

      1. The seriousness of the alleged violation;

      2. Whether the alleged violation was premeditated or intentional;

      3. Whether an attempt to conceal the alleged violation was made;

      4. Whether there were any prior violations;

      5. Whether training is appropriate to prevent further violations;

      6. Whether the sanction is necessary to deter future violations; or

      7. Other relevant circumstances or facts.

      (4)(a) If the board determines that sanctions are warranted, the board shall refer the matter to hearing.

      (b) If the board refers the matter to hearing, the board shall, by majority vote, approve the issuance of a notice of hearing and the statement of charges. The statement of charges shall include specific reasons for the board’s proposed action, including the:

      1. Statutory or regulatory violation;

      2. Factual basis on which the disciplinary action is based; and

      3. Penalty sought.

      (c) The parties may agree to resolve the matter informally at any time. Any agreement to resolve the matter informally shall be memorialized in an agreed order and approved by the board. The agreed order shall be signed by the educator, the educator’s attorney, if any, and the board chair.

      (d) The EPSB staff shall initiate the hearing process within thirty (30) days after the board refers the matter to hearing.

 

      Section 3. (1) The hearing shall be held in accordance with KRS Chapter 13B.

      (2) Either party may be entitled to a reasonable continuance of the hearing date for good cause.

      (3) The educator has the right to request a private in-person hearing.

      (a) The educator shall waive the right to a private[an] in-person hearing if the educator fails to specifically make the request for a private in-person[an in person] hearing in writing.

      (b) Even if the educator elects to proceed with a private hearing, the hearing transcript for that private hearing shall be subject to disclosure after the board issues its final decision unless exempt from disclosure by law.

      (c) All hearings shall be conducted in the office of the Education Professional Standards Board, 100 Airport Road, Frankfort, Kentucky 40601 unless a new location is agreed upon by the parties.

      (4) The hearing officer’s recommended order shall include a discussion of the factors set forth in Section 2(3)(f) of this administrative regulation when recommending sanctions.

      (5) A party may file any exceptions to the recommended order within fifteen (15) calendar days after receiving the recommended order.

      (a) This time limit shall not be extended and responses to exceptions shall not be considered by the board.

      (b) Any disagreement with a factual finding or conclusion of law in the recommended order not contained in the exceptions shall be waived.

 

      Section 4. Final Decision. (1) In making its final decision, the board shall consider the record including the recommended order and any exceptions filed.

      (2) After the board chair certifies that a quorum is present, a majority of the voting members present shall be required to make a final decision on the recommended order, agreed order, or request for the issuance of an order of default judgment.

      (3) The board may delegate to the board chair the authority to sign a decision made or order issued under this section on behalf of a majority of the board members.

      Section 5. Procedure for Suspension, Surrender, or Revocation of a Certificate. (1) When the board issues a final decision in accordance with KRS 13B.120, the EPSB staff shall mail a copy of the final decision to the educator by certified mail using the address the educator provided to the Education Professional Standards Board.

      (2) A record of board action shall become part of the educator’s official records maintained by EPSB staff.

      (3) Immediately following the issuance of the board’s final decision, the EPSB staff shall notify the reporting parties of the action taken.

      (4) EPSB staff shall also ensure that the suspension, surrender, or revocation is noted on EPSB’s Web site.

      (5) EPSB staff shall also ensure that the information is provided to the National Association of State Directors of Teacher Education and Certification (NASDTEC) for inclusion in the NASDTEC Clearinghouse. The clearinghouse is a searchable database administered by NASDTEC relating to educator certification and discipline.

 

      Section 6. Procedure for Reinstatement of a Suspended Certificate. (1) Reinstatement of a suspended certificate for reasons other than misconduct involving the illegal use of controlled substance as defined in KRS 218A.010(5).

      (a) A certificate that has been suspended by the EPSB shall not be reinstated until the certificate holder has met all conditions and requirements ordered by the EPSB.

      (b) If a certificate lapses during a period of suspension, the certificate holder shall apply for renewal of the certificate at the end of the suspension period. The board shall renew the certification if the certificate holder has met all educational requirements for renewal and has completed all of the conditions and requirements ordered by the board.

      (c) The burden to initiate the process to reinstate a suspended certificate shall be on the certificate holder.

      1. When the suspension does not include conditions, the EPSB staff shall remove all references of the suspension from the Web site at the conclusion of the suspension period.

      2. When the suspension includes conditions, the certificate holder shall provide the EPSB proof that all conditions have been met.

      a. The EPSB shall reinstate the certificate at the conclusion of the suspension period once the EPSB receives evidence from the certificate holder demonstrating that the conditions of suspension were met.

      b. The EPSB shall remove from its Web site any reference to the suspension once the certificate holder has provided evidence that the conditions of suspension have been met.

      (d) The record of suspension as well as reinstatement of the certification shall become part of the educator’s official certification records, but the record of suspension shall not be referenced on any certificate subsequently issued to the certificate holder.

      (2) Reinstatement of a suspended certificate for misconduct involving the illegal use of controlled substance as defined in KRS 218A.010(5).

      (a) In addition to conditions for reinstatement of a suspended certificate established in subsection (1) of this section, the certificate holder shall provide written evidence that the certificate holder has submitted to a drug test at the certificate holder's own expense administered by a drug testing facility approved by the board within thirty (30) days of reinstatement or submission of an application for reissuance of the certificate.

      (b) The certificate holder shall arrange for the drug testing facility to send the results of the drug test directly to the EPSB.

      (c) A certificate holder subject to the terms of this subsection may petition the EPSB to approve a drug testing facility of the certificate holder's choice.

      1. Petition to Approve Drug Testing Facility. The petition shall contain the following information:

      a. The drug testing facility’s name and location;

      b. The name and telephone number for the director of the facility;

      c. The method of test specimen collection;

      d. The drug testing facility’s method of assuring identity of the test subject;

      e. Procedures for testing specimens, including forensic testing methods; and

      f. Chain of custody protocols.

      2. The drug testing facility shall test at a minimum for the following named controlled substances:

      a. Marijuana;

      b. Cocaine;

      c. Opiates;

      d. Amphetamines;

      e. Phencyclidene;

      f. Morphine;

      g. MDMA (Ecstasy);

      h. Methadone;

      i. Benzodiazepines;

      j. Barbiturates; and

      k. Oxycodone.

      (d) If the results of the drug test indicate illegal drug use by the certificate holder, the certificate shall not be reinstated or reissued.

 

      Section 7. Procedure for Reissuance of a Certificate after Revocation. (1) When revocation was for reasons other than misconduct involving the illegal use of controlled substance as defined in KRS 218A.010(5), the conditions established in this subsection shall apply.

      (a) The former certificate holder shall complete the same application that all educators in Kentucky shall complete to obtain certification.

      (b) The former certificate holder shall bear the burden of proving that the certificate holder is fit for practice.

      (c) The former certificate holder shall satisfy all current educational requirements for the certificate sought.

      (d) The Education Professional Standards Board may include terms and conditions that the board reasonably deems appropriate as a condition of reissuance in accordance with KRS 161.120(11)(b) if reissuing the certificate.

      (2) If revocation was for misconduct involving the illegal use of controlled substance as defined in KRS 218A.010(5), the former certificate holder shall:

      (a) Comply with the requirements established in Section 6(1) of this administrative regulation for reissuance of certification after revocation for all other offenses; and

      (b) Submit to drug testing as established in Section 6(2) of this administrative regulation for the suspension resulting from illegal use of controlled substances.

      (3) Regardless of the reason for the revocation, the revocation shall be noted on the certificate that is issued and shall remain on the EPSB Web site.

 

      Section 8.[Initiating Disciplinary Action Against a Certificate. The Education Professional Standards Board may initiate disciplinary action against a Kentucky teaching or administrative certificate upon receipt from any source of a report or complaint which contains allegations that an individual who holds a Kentucky teaching or administrative certificate has engaged in conduct listed in KRS 161.120(1).

 

      Section 2. Reinstatement and Reissuance of Certificate. (1)(a) A certificate that has been suspended by the Education Professional Standards Board shall not be reinstated until the certificate holder has met all conditions and requirements ordered by the Education Professional Standards Board.

      (b) If a certificate lapses during a period of suspension, at the end of the suspension period and upon completion of all conditions and requirements ordered by the Education Professional Standards Board, the certificate holder shall apply for renewal of the certificate and shall meet all educational requirements for renewal of the certificate.

      (2) An individual whose certificate has been revoked shall complete the "Application for Kentucky Certification or Change in Salary Rank", Form TC-1, incorporated by reference in 16 KAR 2:010, prior to the reissuance of the certificate.

      (3) The burden of proving suitability for reissuance of a revoked certificate shall rest on the applicant seeking reinstatement.

      (4) If reissuing a certificate, the Education Professional Standards Board may include terms and conditions that the board reasonably deems appropriate as a condition of reissuance in accordance with KRS 161.120(11)(b).

      (5) An applicant for reissuance of a revoked certificate shall satisfy all current educational requirements for the certificate.

      (6)(a) If a certificate is suspended or revoked because the certificate holder engaged in misconduct involving the illegal use of a controlled substance as defined in KRS 218A.010(5), in addition to conditions for reinstatement or reissuance, the certificate holder shall at the certificate holder's own expense provide written evidence that the certificate holder has submitted to a drug test administered by a drug testing facility approved by the Education Professional Standards Board within thirty (30) days of reinstatement or submission of an application for reissuance of the certificate.

      (b) If the results of the drug test indicate drug use by the certificate holder, the certificate shall not be reinstated or reissued.

      (c) The certificate holder shall arrange for the drug testing facility to send the results of the drug test directly to the Education Professional Standards Board.

      (d) A drug test conducted under this subsection shall at a minimum test for the following controlled substances:

      1. Marijuana;

      2. Cocaine;

      3. Opiates;

      4. Amphetamines;

      5. Phencyclidene;

      6. Morphine;

      7. MDMA (Ecstasy);

      8. Methadone;

      9. Benzodiazepines;

      10. Barbiturates; and

      11. Oxycodone.

      (e)1. A certificate holder subject to the terms of this subsection may petition the Education Professional Standards Board to approve a drug testing facility of the certificate holder's choice.

      2. The petition shall contain the following information:

      a. The drug testing facility’s name and location;

      b. The name and telephone number for the director of the facility;

      c. The method of test specimen collection;

      d. The drug testing facility’s method of assuring identity of the test subject;

      e. Procedures for testing specimens, including forensic testing methods; and

      f. Chain of custody protocols.

 

      Section 3.] Denial of Application for a Certificate. If the Education Professional Standards Board denies an individual's application for a Kentucky[teaching or administrative] certificate pursuant to this administrative regulation, the applicant[individual] may file an appeal in accordance with KRS 161.120(5)(a)2.

 

DAVID WHALEY, Board Chair

      APPROVED BY AGENCY: December 12, 2016

      FILED WITH LRC: December 14, 2016 at 1 p.m.

      CONTACT PERSON: Lisa K. Lang, General Counsel, 100 Airport Road, Third Floor, Frankfort, Kentucky 40601, email LisaK.Lang@ky.gov, phone (502) 782-2147, fax (502) 564-7080.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Person: Lisa K. Lang

      (1) Provide a brief summary of

      (a) What this administrative regulation does: This administrative regulation identifies the conditions for initiating a disciplinary action against a certificate and establishes procedures for certificate suspension, surrender, revocation, reinstatement, reissuance, and application denial.

      (b) The necessity of this administrative regulation: KRS 161.028(1) authorizes the Education Professional Standards Board (EPSB) to establish standards and requirements for obtaining and maintaining a teaching certificate. The EPSB is authorized to revoke, suspend, or refuse to issue or renew: impose probationary or supervisory conditions upon; issue a written reprimand or admonishment; or any combination of those actions regarding any certificate issued to Kentucky certified educators for reasons delineated in KRS 161.120(1). KRS 161.175(2) authorizes the Education Professional Standards Board to promulgate administrative regulations requiring an educator whose certificate has been suspended or revoked by the Education Professional Standards Board because the educator engaged in misconduct involving the illegal use of controlled substances to submit to drug testing. This administrative regulation also identifies the conditions for initiating a disciplinary action against a teaching certificate and establishes procedures for certificate suspension, surrender, revocation, reinstatement, reissuance, and application denial.

      (c) How this administrative regulation conforms to the content of the authorizing statutes: KRS 161.028(1) authorizes the Education Professional Standards Board to establish standards and requirements for obtaining and maintaining a teaching certificate. KRS 161.175(2) authorizes the Education Professional Standards Board to promulgate administrative regulations requiring an educator whose certificate has been suspended or revoked by the Education Professional Standards Board because the educator engaged in misconduct involving the illegal use of controlled substances to submit to drug testing.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation sets forth the process for initiating a disciplinary action against a teaching certificate and establishes procedures for certificate suspension, surrender, revocation, reinstatement, reissuance, and application denial.

      (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

      (a) How the amendment will change this existing administrative regulation: This amendment further clarifies the EPSB’s procedures for certificate suspension, surrender, revocation, reinstatement, reissuance, and application denial and will ensure the efficient processing of complaints and reports filed against certificate holders.

      (b) The necessity of the amendment to this administrative regulation: This amendment reflects changes the EPSB is making to its procedures for certificate suspension, surrender, revocation, reinstatement, reissuance, and application denial and will ensure the efficient processing of complaints and reports filed against certificate holders to ensure that certificate holders have an understanding of an educator’s professional duties and responsibilities and to protect students, parents of students, school personnel, or school officials.

      (c) How the amendment conforms to the content of the authorizing statutes: KRS 161.028(1) authorizes the Education Professional Standards Board to establish standards and requirements for obtaining and maintaining a teaching certificate. As the EPSB is authorized to revoke, suspend, or refuse to issue or renew: impose probationary or supervisory conditions upon; issue a written reprimand or admonishment; or any combination of those actions regarding any certificate issued to Kentucky certified educators for reasons delineated in KRS 161.120(1) this amendment helps make clear the disciplinary process and will aid the efficient processing of complaints filed against certified educators. KRS 161.175(2) authorizes the Education Professional Standards Board to promulgate administrative regulations requiring an educator whose certificate has been suspended or revoked by the Education Professional Standards Board because the educator engaged in misconduct involving the illegal use of controlled substances to submit to drug testing.

      (d) How the amendment will assist in the effective administration of the statues: This amendment further clarifies the EPSB’s procedures for certificate suspension, surrender, revocation, reinstatement, reissuance, and application denial and will ensure the efficient processing of complaints and reports filed against certificate holders.

      (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: This administrative regulation will affect applicants seeking Kentucky educator certification, educators currently holding certificate, and superintendents for the 173 Kentucky public school districts that employ educators holding certifications.

      (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

      (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: This administrative regulation sets forth the actions an applicant that has been denied a teaching certificate must take in order to challenge a denial of a certificate. This administrative regulation sets forth the actions an educator may take if the EPSB initiates action against that educator’s certificate. This administrative regulation sets forth the actions a superintendent must take when that superintendent becomes aware of violations of KRS 161.120. This amended regulation also makes clear that superintendents have a duty to report criminal convictions discovered by the district pursuant to KRS 160.380 even if the conviction occurred prior to the date the certificate holder’s certification was issued.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): There is no cost associated with this amendment.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): This amendment will ensure that applicants for Kentucky educator certification and educators currently holding teaching certifications receive due process. This amendment will also support the superintendents in the 173 school districts in Kentucky in their efforts to protect the students in their charge.

      (5) Provide an estimate of how much it will cost to implement this administrative regulation:

      (a) Initially: N/A

      (b) On a continuing basis: N/A

      (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: Funding used for the implementation and enforcement of this administrative regulation comes from restricted funds generated by educator certification application fees.

      (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change, if it is an amendment: There is nothing in this amendment that will result in an increase in fees.

      (8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees: This administrative regulation does not establish fees.

      (9) TIERING: Is tiering applied? Tiering is not applicable to the requirements of this regulation. This regulation applies to all applicants for certification and current certificate holders equally.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

      1. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? This administrative regulation will impact the Education Professional Standards Board as well as all school districts in Kentucky.

      2. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 161.028(1) and KRS 161.175(2).

      3. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect. There should be no effect.

      (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? No revenue will be generated.

      (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? No revenue will be generated.

      (c) How much will it cost to administer this program for the first year? Currently, the EPSB spends approximately $518,000.00 per year to process complaints and reports against educators holding a certification.

      (d) How much will it cost to administer this program for subsequent years? The EPSB hopes to reduce the administrative costs associated with the processing of complaints and reports against educators holding a certification as a result of the EPSB’s efforts to streamline the complaint and report process.

      Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

      Revenues (+/-):

      Expenditures (+/-):

      Other Explanation: