††††† 201 KAR 40:030. Procedures for hearings.

 

††††† RELATES TO: KRS Chapter 13B, 165A.350(4)(b), 165A.360(3)(b), 165A.370(2)-(4), 165A.390, 165A.990

††††† STATUTORY AUTHORITY: KRS Chapter 13A, 165A.350(4)(b), 165A.360(3)(b), 165A.400

††††† NECESSITY, FUNCTION, AND CONFORMITY: KRS 165A.340(3) and 165A.400 authorize the board to promulgate administrative regulations. KRS 165A.350(4)(b), 165A.360(3)(b), and 165A.370(4) provide for hearings, but do not prescribe procedures. This administrative regulation establishes hearing procedures.

 

††††† Section 1. Definitions. (1) "Chair" means the chair or vice-chair of the board.

††††† (2) "Charge" means a specific allegation contained in a formal complaint, as established in Section 5(3) of this administrative regulation, issued by the board alleging a violation of a specified provision of KRS Chapter 165A or the requirements established in 201 KAR Chapter 40.

††††† (3) "Complaint" means a written allegation of misconduct by an agent or school, or other allegation of a violation of KRS Chapter 165A, the requirements established in 201 KAR Chapter 40, or another state or federal statute or regulation applicable to an agent or school.

††††† (4) "Complaint committee" means the committee appointed pursuant to Section 2 of this administrative regulation.

††††† (5) "Formal complaint" means a formal administrative pleading authorized by the board which sets forth charges against a licensed school or agent and commences a formal disciplinary proceeding pursuant to KRS Chapter 13B or requests a court to take action.

††††† (6) "Informal proceeding" means a proceeding instituted during the disciplinary process with the intent of reaching a disposition of a matter without further recourse to formal disciplinary procedures under KRS Chapter 13B.

††††† (7) "Investigator" means an individual designated by the board to assist the board in the investigation of a complaint or an investigator employed by the Attorney General for the board.

 

††††† Section 2. Complaint Committee. The complaint committee shall:

††††† (1) Be appointed by the chair of the board to:

††††† (a) Review complaints and investigative reports;

††††† (b) Participate in an informal proceeding to resolve formal complaints; and

††††† (c) Make recommendations for disposition of complaints to the full board; and

††††† (2) Consist of three (3) persons who may be assisted by the board staff and counsel to the board.

 

††††† Section 3. Receipt of Complaints. (1) A complaint may be submitted by an individual, organization, or entity.

††††† (a) A complaint shall be in writing and shall be signed and certified as to its truth by the person offering the complaint.

††††† (b) The board may file a complaint based on information in its possession.

††††† (c) A compliant shall be filed with the board on Form PE-24, Form to File a Complaint, accompanied, if applicable, by Form PE-25,Authorization for Release of Student Records.

††††† (2)(a) Upon receipt of a complaint, a copy of the complaint shall be sent to the agent or school named in the complaint along with a request for a written response to the complaint.

††††† (b) The agent or school shall file a written response with the board within ten (10) days from the date of receipt.

(3)(a) Upon receipt of the written response of the agent or school named in the complaint, a copy of the response shall be sent to the complainant.

(b) The complainant shall have ten (10) days from the date of receipt to submit to the board a written reply.

††††† (4) Upon receipt of the complainantís reply, the complaint committee may request an additional response from the agent or school if additional issues are raised.

 

††††† Section 4. Initial Review. (1)(a) After the receipt of a complaint or the expiration of the period for the response, the complaint committee shall consider the complaint, response, and complainantís reply to the response, and other relevant material available, and make a recommendation to the board.

††††† (b) The board shall determine whether there is enough evidence to warrant a formal investigation of the complaint.

††††† (2) If the board determines that a complaint does not warrant a formal investigation against an agent or school, or the issuance of a formal complaint against an agent or school, then the board shall dismiss the complaint and shall notify both the complainant and the agent or school of the boardís decision.

††††† (3) If the board determines that a complaint warrants a formal investigation against either an agent or school, then the board shall authorize an investigator to investigate the matter and make a report to the complaint committee at the earliest opportunity.

 

††††† Section 5. Results of Formal Investigation; Board Decision on Hearing. (1) Upon completion of a formal investigation, the complaint committee shall consider the facts regarding the complaint.

††††† (a) The committee shall review an investigative report and supporting documents and make a recommendation to the board.

††††† (b) The board shall determine whether there is enough evidence to believe that a violation of the law or administrative regulations may have occurred and whether a formal complaint shall be filed.

††††† (2)(a) If the board determines that a complaint does not warrant the issuance of a formal complaint and the holding of a hearing, then the complaint shall be dismissed or other appropriate action taken.

††††† (b) The board shall notify both the complainant and the agent or school of the outcome of the complaint.

††††† (3)(a) If the board determines that a complaint warrants the issuance of a formal complaint against an agent or school, then a formal complaint which states clearly the charge or charges to be considered at the hearing shall be prepared

††††† (b). The formal complaint shall be reviewed by the board and, if approved, signed by the chairman and served upon the agent or school as required by KRS 13B.050.

††††† (4) If the board determines that an individual or school may be operating without the appropriate permit or license, then the Board shall:

††††† (a) Authorize the board administrator to send a letter to the individual or school advising them that they may need a permit or license, and enclose the appropriate application package;

††††† (b) Authorize board counsel to issue a letter ordering that individual or school to cease and desist from operating the school;

††††† (c) Forward information to the county attorney of the county of residence of the individual or school allegedly acting without appropriate permit or license, or the county where the alleged violation occurred, with a request that appropriate action be taken under KRS 165A.990; or

††††† (d) Initiate action in Franklin Circuit Court for injunctive relief.

 

††††† Section 6. Settlement by Informal Proceedings and Letter of Admonishment. (1) The board, through counsel and the complaint committee, may enter into informal proceedings with the agent or school which is the subject of the complaint for the purpose of resolving the matter.

††††† (a) An agreed order or settlement reached through this process shall be approved by the board and signed by the board chairman and the agent or school which is the subject of the complaint, and the chairman.

††††† (b) The board may employ mediation, persuasion, or conciliation, as methods of resolving the matter informally.

††††† (2)(a) The board may issue a written admonishment to the agent or school if the board determines that

††††† 1. An alleged violation is not of a serious nature; and

††††† 2. The evidence presented to the board after the investigation and appropriate opportunity for the agent or school to respond, provides a clear indication that the alleged violation did in fact occur.

††††† (b) A copy of the admonishment shall be placed in the permanent file of the agent or school.

††††† (c) Within thirty (30) days of receipt of an admonishment, the agent or school shall file:

††††† 1. A response to the admonishment which shall be placed in the agentís or schoolís permanent licensure file; or

††††† 2. A request for hearing with the board. Upon receipt of this request, the board shall set aside the written admonishment, file a formal complaint, and set the matter for hearing pursuant to the provisions of KRS Chapter 13B.

 

††††† Section 7. Incorporation by Reference. (1) The following material is incorporated by reference:

††††† (a) "Form to File a Complaint", Form PE-24, (2007 edition); and

††††† (b) "Authorization for Release of Student Records", Form PE-25, (2007 edition).

††††† (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the State Board for Proprietary Education, 911 Leawood Road, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. (16 Ky.R. 501; Am. 746; eff. 10-13-89; recodified from 201 KAR 24:040, 4-22-91; Recodified from 783 KAR 1:020, 11-7-02; 34 Ky.R. 1110; 1715; eff. 2-1-2008.)