910 KAR 1:140. Hearing procedures for area agency on aging contractor selection actions.
RELATES TO: KRS 205.201, 205.204, 205.460-205.465, 42 U.S.C. 3027(a)(5), 45 C.F.R. 1321
STATUTORY AUTHORITY: KRS 194A.050, 205.204, 42 U.S.C. 3027(a)(5)
NECESSITY, FUNCTION, AND CONFORMITY: 42 USC 3027(a)(5) requires that the Office of Aging Services afford an opportunity for a hearing upon request to providers and applicants to provide services under Title III of the Older Americans Act of 1965, as amended. Accordingly, it is the Office of Aging Services policy to provide an opportunity for a hearing to any applicant to provide services under Title III whose application to provide services under an area plan is denied or any service provider funded under Title III whose contract is terminated or not renewed, except as set forth in 45 CFR Part 74, Subpart M. This administrative regulation establishes procedures to provide a full and fair opportunity to resolve any complaints or protests that may arise in contractor selection actions by area agencies on aging under Title III and to create a complete, clear and accurate record for the formation of decisions regarding those selection actions.
Section 1. Definitions. (1) "AAA" means the area agency on aging under each area development district.
(2) "Applicant" means a person or entity making application to an area agency to provide services under an approved area plan.
(3) "Area plan" means a plan submitted by an area agency on aging and approved by the Executive Director, Office of Aging Services, which enables the area agency to administer activities under Title III.
(4) "Burden of proof" means the duty of going forward, i.e., of producing evidence of a particular matter or fact in issue and the burden of persuasion that a particular matter or fact is true.
(5) "Days" means calendar days, unless specified.
(6) "Executive director" means Executive Director of the Office of Aging Services, Cabinet for Health Services.
(7) "Hearing officer" means the person selected by the Executive Director of the Office of Aging Services, to conduct a hearing and to submit a written report based on that hearing to the executive director.
(8) "Local administrative review" means the procedure of an area agency for consultation and review with an applicant or provider.
(9) "Office" means the Office of Aging Services, Cabinet for Health Services.
(10) "Party" means an area agency, an applicant or provider who has requested a hearing, the person or entity who submitted the proposals in response to the request for proposal (RFP), and a person or entity that is admitted into the proceedings and designated as participant by the hearing officer.
(11) "Protest" or "complaint" means a written objection by an applicant or provider to a proposed award or the award of a contract, or a written objection by a provider to a decision to terminate or not renew its contract to provide services.
(12) "Provider" means a person or entity that is awarded a contract from an area agency on aging to provide services under an approved area plan.
(13) "RFP file" means those documents that are maintained regarding a particular procurement. These documents shall include:
(a) The request for proposal;
(b) Advertisements as published in the newspaper;
(c) Each proposal received in response to the RFP;
(d) All correspondence pertaining to the RFP;
(e) The review by the AAA;
(f) Rating or scoring and selection documents;
(g) Notice of award; and
(h) The contract.
(14) "Title III" means Title III of the Older Americans Act of 1965, as amended, and implementing federal regulations and directives.
Section 2. Procedures for Local Review. (1) Written notice shall be sent by registered or certified mail within seven (7) days of a decision made by an AAA which denies an applicant its request to provide a service or which terminates a provider's contract to provide a service. The notice shall specify:
(a) The reason for the adverse action;
(b) That the provider or applicant has ten (10) days from receipt of notice to file a written complaint with the AAA; and
(c) That failure to file a complaint in a timely manner shall constitute a waiver of his opportunity for a hearing at the state agency level.
(2) Each AAA shall develop and set forth in writing office approved fair and adequate local administrative review procedures. These procedures shall:
(a) Provide that the AAA shall not proceed further with the solicitation, award or termination involved during the pendency of the local administrative review, except under a contingency plan approved by the office;
(b) Provide that a request for a state agency review shall not be accepted until all administrative remedies have been exhausted at the local level;
(c) Provide the protecting applicant or provider an opportunity to review pertinent evidence upon which the adverse action was based including:
1. Competing proposals and scoring sheets;
2. Requesting reconsideration of an award; and
3. Stating in writing why the protest is filed and the factual circumstances and issues to be considered during the review.
(d) Provide that the local administrative review shall include the following:
1. An opportunity to appear in person before an individual or a group of three (3) persons who can render an impartial decision;
2. An opportunity to present witnesses and documentary evidence;
3. An opportunity to be represented by counsel;
4. An opportunity to cross-examine witnesses; and
5. A written impartial decision which sets forth:
a. The reasons for the decision;
b. The evidence on which decision is based; and
c. Statement explaining the right to request a state-level hearing.
(e) Provide that the AAA conduct and complete the local administrative review not later than twenty (20) days after receipt of the written protest and:
1. Respond in writing by certified mail return receipt requested to the applicant or provider its findings and determinations on the issues raised in the complaint;
2. Provide notice to the applicant or provider of the right to request a hearing with the office; and
3. Forward a copy of the local administrative review to the office.
(f) Provide that subcontractors of an AAA and applicants to be subcontractors shall be:
1. Provided notice of an afforded an opportunity for a hearing by the AAA; and
2. Provided an opportunity for appeal to the state-level for review of the transcript.
Section 3. Procedures for State-level Hearing. (1) Requests and grounds for a hearing.
(a) If the protest is not resolved by the local administrative review the applicant or provider may request in writing a hearing at the state-level on one (1) or more of the following grounds:
1. There is reason to claim that the award does not comply with the applicable request for proposal;
2. There is reason to claim that the local administrative review does not comply with the approved procedures of the AAA;
3. There is a reason to claim that denial by the AAA in whole or in a substantial part of an application to provide services on an action or the part of the AAA concerning termination or nonrenewal of a contract to provide services is:
c. An abuse of discretion;
e. The result of a conflict of interest;
f. Not based upon substantial evidence; or
g. Does not comply with the terms of the contract or federal or state law, statute or regulation.
(b) The written request for a hearing by an applicant or provider shall sets forth the grounds and their alleged factual basis, and shall be mailed to the Executive Director, Office of Aging Services, 275 East Main Street, Frankfort, Kentucky 40621, postmarked not later than ten (10) days from receipt of the local administrative review findings and determinations. A copy of the written request shall be mailed to the appropriate AAA.
(c) Upon receipt of the copy of the request the AAA shall send the following to the office for the hearing officer:
1. A complete copy of the local administrative review.
2. A complete copy of the request for proposal file relating to a particular procurement.
(2) Failure of the applicant or provider to comply with procedures shall constitute a forfeiture of the opportunity for a state level hearing. The request shall be returned by the executive director with a written explanation. The executive director may waive the timeliness requirements and shall notify the parties of the reason for the waiver upon:
(a) Receipt of a written request of a party and a determination that good cause or exigent circumstances exist; or
(b) Determination that waiver is in the best interest of the aging program.
(3) Each hearing shall be conducted within twenty (20) days of the date the executive director receives a request. The hearing officer shall:
(a) Notify the parties by mail of the date, time and location of the hearing;
(b) Provide each party with a copy of the request; and
(c) May grant an extension or continuance if:
1. He receives a written request by a party with good cause shown to reschedule; and
2. That extension or continuance shall not delay service delivery.
(4) The executive director may expedite the scheduling of events and notify the parties of the reason upon written determination that:
(a) A reduction in the time frames is in the best interest of the aging program; and
(b) The rights of the parties at the state level hearing are not prejudiced.
(5) The decision of the executive director regarding the qualifications of the hearing officer shall be final.
(a) The hearing officer shall be disqualified if he has a:
1. Personal bias;
2. Prejudice with respect to a party; or
3. Conflict of interest in the matter pending;
(b) A party may suggest in writing to the executive director grounds for disqualification, prior to the date set for the hearing.
(6) The parties shall have an opportunity to present their sides of the matter at their expense and subject to the rulings of the hearing officer in a full and fair hearing. Each party has the right to:
(a) Appear with legal counsel or other representatives;
(b) Review pertinent evidence on which the decision of the area agency was based;
(c) Present evidence, both testimonial and documentary;
(d) Rebut adverse evidence, through cross-examination and other appropriate means, including the presentation of evidence;
(e) Submit a brief or memorandum setting forth the position of the party and substantiation for it to the hearing officer;
(f) Present oral argument;
(g) Have the decision based only upon the evidence introduced into the record of the hearing; and
(h) Have access to the complete record which consists of the following:
1. The request for hearing;
2. A copy of the local administrative review;
3. A copy of the RFP file;
4. A transcript of oral testimony and arguments, if a transcript is made;
5. Documentary evidence and papers filed with the request, and in the proceedings; and
6. Pre- and posthearing motions including written exceptions.
(7) The hearing officer shall rule on the admissibility of both testimonial and documentary evidence.
(a) The hearing officer shall not be bound by courtroom rules of evidence and irrelevant, immaterial, and unduly repetitious or cumulative evidence shall be excluded.
(b) Notice shall be taken of judicially cognizable facts, decisions of courts or other tribunals, and generally recognized technical and scientific facts. Each party shall be afforded an opportunity to contest these matters.
(c) Part of the evidence may be received in the form of a deposition, affidavit or stipulation if the interest of the parties will not be substantially prejudiced.
(d) The hearing officer shall arrange for the separation of witnesses and may exclude a prospective witness or spectator to ensure an orderly and fair proceeding.
(e) Upon notice to the parties, the hearing officer may seek a more definite and detailed statement of the issue.
(8) The proceedings in a hearing shall be taped or recorded at a location provided by the executive director. The executive director shall provide a copy of the transcript to a party upon:
(a) Written request; and
(b) Payment of a reasonable fee which shall comply with the Kentucky Open Records law.
(9) When a party fails to appear at a hearing, the hearing officer shall notify the party in writing that a default shall be entered. The defaulting party shall have no more than five (5) days in which to seek a new hearing date which shall be granted only for good cause shown. Upon default, the hearing officer shall:
(a) Render a decision based on available evidence; or
(b) Dismiss the case with prejudice to the defaulting party.
(10) The provider or applicant may submit a written withdrawal of a request for a hearing which shall constitute a waiver of an opportunity for a hearing at the state level on the matters and issues involved in the original request.
(11) The hearing shall be conducted in an orderly but informal manner.
(a) The hearing officer shall:
1. Preside over all proceedings;
2. Rule on preliminary motions; and
3. Determine the order of presentation of evidence and other procedural matters.
(b) The parties shall in advance of the hearing indicate the names of the witnesses and the expected duration of their testimony.
(c) At the conclusion of the hearing the parties may submit to the hearing officer:
1. Proposed findings of fact; and
2. Written exceptions to proposed findings of fact.
(d) The hearing officer shall rule on each proposed finding and on all motions and objections.
(e) The burden of proof shall be with the applicant or provider who requested the hearing.
(f) The standard of proof shall be by a preponderance of evidence.
(12) Within ten (10) days of the conclusion of the hearing, the hearing officer shall forward to the executive director a complete record of the hearing and a written report based on the record. The executive director may extend the time for filing this report upon request of the hearing officer and with good cause shown. The report shall contain:
(a) Separate findings of fact based on the record;
(b) Conclusions based on the findings of fact; and
(c) Recommendations supported by the conclusions.
(13) Within five (5) days of receipt of the hearing officers report, a party may submit written exceptions to the executive director, but a party shall not be entitled to a further hearing on a matter or issue which was the subject of the hearing.
(14) Upon review of the report of the hearing officer, and timely filed exceptions, the executive director may remand the case back to the hearing officer for proceedings to assist him in making a decision, which shall:
(a) Be rendered in writing within twelve (12) days of receipt of the final report of the hearing officer;
(b) Approve, disapprove or approve with deletions, additions or modifications each finding of fact, conclusion and recommendation in the report.
(15) The decision of the executive director shall be based on the record of the hearing and may direct appropriate action be taken including:
(a) Affirming the action of the AAA;
(b) Directing the award be made to the next most advantageous proposal, taken into consideration price, and the evaluation factors set forth in the RFP; or
(c) Requiring the AAA to readvertise its RFP.
(16) The executive director may authorize the executive director to approve a contingency plan for delivery of services while the AAA takes action to conform to the decision.
(17) The decision of the executive director shall constitute the final administrative review of the matter and issues which were the subject of the hearing. A copy of the decision shall be:
(a) Mailed or hand-delivered to the parties; and
(b) Maintained by the executive director with the complete record of the hearing. (17 Ky.R. 854; Am. 1515; eff. 12-7-90; Recodified from 905 KAR 8:140, 10-30-98; Recodified from 923 KAR 1:140, 7-8-99.)