CABINET FOR HEALTH AND FAMILY SERVICES

Department for Income Support

Child Support Enforcement

(Amendment)

 

      921 KAR 1:430. Child support administrative hearings.

 

      RELATES TO: KRS Chapter 13B, 15.055, 154A.060(2)(g), 205.710, 205.712, 205.745, 205.7685, 205.769, 205.778, 237.110(4)(f), 341.392, 341.420, 405.411, 405.440(4), 405.450(5), 405.463, 405.465, 405.467, 405.470, 405.490(4)

      STATUTORY AUTHORITY: KRS 13B.170, 194A.050(1), 205.712, 45 C.F.R. 303.35, 42 U.S.C. 666

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.050(1) requires the secretary of the Cabinet for Health and Family Services to promulgate administrative regulations necessary to implement programs mandated by federal law, qualify for the receipt of federal funds, or to cooperate with other state and federal agencies for the proper administration of the cabinet and its programs. 42 U.S.C. 666 requires each state to have in effect procedures to increase the effectiveness of the Child Support Enforcement Program. 45 C.F.R. 303.35 requires the agency administering the Child Support Enforcement Program to develop a procedure for administrative reviews of child support cases for individuals with complaints. KRS 13B.170 authorizes an agency to promulgate administrative regulations that are necessary to carry out the provisions of KRS Chapter 13B. This administrative regulation establishes the administrative hearing procedures used by the cabinet in the administration of the Child Support Enforcement Program.

 

      Section 1. Availability of a Hearing. (1) An opportunity for an administrative hearing shall be provided to an individual aggrieved by an action or inaction:

      (a) On the part of the Child Support Enforcement Program; and

      (b) That affects the child support case of the individual.

      (2) An individual requesting an administrative hearing shall have the option to designate a representative to act on behalf of the aggrieved party for the hearing process, such as:

      (a) Legal counsel;

      (b) A relative; or

      (c) Any other person.

      (3) An administrative hearing shall be conducted by an administrative hearing officer assigned by the Division of Administrative Hearings, Families and Children Administrative Hearings Branch:

      (a) In the county of residence for the appellant or child; or

      (b) By telephone or at an alternate location, if the appellant:

      1. Is unable to travel; and

      2. Requests alternate hearing arrangements at least five (5) calendar days in advance of the scheduled hearing.

      (4) If the appellant or authorized representative speaks a language other than English, the cabinet shall ensure that interpreter services are provided for the administrative hearing.

      (5) Child support enforcement staff shall schedule and hold an informal interview or conference with an aggrieved individual:

      (a) Within ten (10) calendar days of receiving the individual’s hearing request;

      (b) Prior to an administrative hearing being scheduled; and

      (c) To attempt resolution of the dispute.

      (6) If the informal conference does not resolve the issue, the hearing request shall be sent to the Families and Children Administrative Hearings Branch as specified in Section 2 of this administrative regulation for scheduling.

 

      Section 2. Request for a Hearing. (1) An individual shall request an administrative hearing by:

      (a) Completing and submitting a CS-180, Request for Administrative Hearing;

      (b) Submitting a written request; or

      (c) Making an oral request, which is then transferred into a written request within the timeframes specified in subsection (4) of this section.

      (2) An administrative hearing request shall be submitted to the:

      (a) Child support contracting official’s office in the appellant’s county of residence; or

      (b) Child Support Enforcement's central office.

      (3) The count of days specified in subsection (4) of this section shall begin from the date of:

      (a) Issuance, if the notice is sent by first class mail; or

      (b) Receipt, if the notice is personally served or sent by certified mail.

      (4) A written request for an administrative hearing shall be considered timely if received by the cabinet within:

      (a) Ten (10) calendar days of:

      1. An income withholding notice;

      2. A notice of intent to boot a vehicle, in accordance with KRS 205.745(9); or

      3. A notice of intent to request a credit report, in accordance with KRS 205.7685;

      (b) Fifteen (15) calendar days of a notice of withholding from unemployment insurance, pursuant to KRS 341.392 and 341.420;

      (c) Twenty (20) calendar days of:

      1. An initial notice of monthly support obligation, in accordance with KRS 405.440(4);

      2. An order to withhold assets, in accordance with KRS 405.490(4);

      3. A request for denial or suspension of a license or certificate;

      4. A lien notice, in accordance with KRS 205.745(7); or

      5. A notice to place the obligor’s name on the delinquent listing; or

      (d) Thirty (30) calendar days of a:

      1. Modified notice of monthly support obligation, in accordance with KRS 405.450(5);

      2. Notice that an obligation amount was reviewed without change, in accordance with KRS 405.450(5); or

      3. Notice regarding the collection of past-due support in accordance with KRS 154A.060(2)(g), 205.712(17), and 205.769.

      (5) In accordance with KRS 205.712(13), an individual shall be granted an administrative hearing based upon a mistake in fact, such as an incorrect:

      (a) Person identified as an obligor; or

      (b) Current or past due support obligation.

      (6) An appellant or authorized representative may withdraw an administrative hearing request by submitting a written request to the:

      (a) Families and Children Administrative Hearings Branch, as specified in Section 3 of this administrative regulation; or

      (b) Child support enforcement office that accepted the original request for an administrative hearing.

 

      Section 3. Hearing Notification. (1) The Division of Administrative Hearings, Families and Children Administrative Hearings Branch shall acknowledge an administrative hearing request.

      (2) A notice of an administrative hearing shall:

      (a) Comply with the requirements of KRS 13B.050(3);

      (b) Specify the name, address, and phone number of the person to notify if an appellant is unable to attend the scheduled hearing; and

      (c) Specify that the hearing request shall be dismissed if an appellant or the authorized representative fails to appear for an administrative hearing without good cause as specified in Section 4(3) of this administrative regulation.

      (3) Pursuant to KRS 405.450(1), the cabinet shall schedule an administrative hearing within sixty (60) calendar days of an individual’s hearing request.

      (4) An administrative hearing shall be conducted in accordance with KRS Chapter 13B[13B.080 and 13B.090].

      (5) An individual that fails to appear for a scheduled hearing shall receive notification to provide good cause within ten (10) calendar days.

 

      Section 4. Denial or Dismissal of an Administrative Hearing Request. (1) A hearing request shall be denied or dismissed if the:

      (a) Request is not based on a mistake of fact as specified in Section 2(5) of this administrative regulation;

      (b) Request is untimely and good cause, as defined in subsection (3) of this section, is:

      1. Not claimed; or

      2. Found not to exist;

      (c) Appellant submits a written request to withdraw the administrative hearing request; or

      (d) Appellant or an authorized representative fails to appear for the scheduled hearing without:

      1. Notifying the cabinet prior to the hearing; or

      2. Establishing good cause for failure to appear, as defined in subsection (3) of this section.

      (2) A claim of good cause for an untimely hearing request or failure to appear at an administrative hearing shall be established within ten (10) calendar days of receipt of a notice to provide good cause.

      (3) Upon receipt of a good cause claim, a hearing officer shall determine if the appellant:

      (a) Was away from home during the entire filing period;

      (b) Is unable to read or comprehend the right to request an administrative hearing on the notice received;

      (c) Moved, resulting in a delay in receiving or failure to receive the notice in the required time period;

      (d) Was suffering from a serious illness;

      (e) Was caring for an immediate household member who had a serious illness; or

      (f) Was not at fault for the delay of the request, as determined by the hearing officer.

      (4) The cabinet shall notify an appellant of the dismissal of an administrative hearing request by sending a recommended order of dismissal.

 

      Section 5. Appellant’s Rights. (1) An appellant or an appellant’s legal representative shall have the right to examine and copy case material pertinent to the dispute before or during the hearing process in accordance with KRS 13B.090(3).

      (2) The cabinet shall release case information as specified in subsection (1) of this section to the appellant’s authorized representative if the appellant provides written authorization that is:

      (a) Signed in the presence of child support enforcement staff who shall also sign as a witness; or

      (b) Notarized.

      (3) An appellant or representatives shall have the right to:

      (a) Examine, prior to the hearing:

      1. The list of witnesses to be called during the hearing;

      2. Evidence to be presented at the hearing; and

      3. Other information in the cabinet’s possession that pertains to the hearing;

      (b) Present witnesses or documents to support the appellant’s claim; and

      (c) Appeal the decision of the final order of the hearing to Circuit Court in accordance with KRS 13B.140.

 

      Section 6. Obligation Pending a Hearing or Appeal. (1) If a hearing request is based on the dispute of:

      (a) An initial notice of monthly support obligation, the obligation shall be stayed until a final order of the secretary[Commissioner of the Department for Income Support or designee] is issued, in accordance with KRS 405.450(2); or

      (b) The findings of a modification review of an administratively established obligation, the amount of the existing obligation shall be:

      1. Enforceable; and

      2. Paid by the obligor pending receipt of the final order.

      (2) If the action taken on behalf of the Child Support Enforcement Program is:

      (a) Upheld, the obligation amount shall be retroactive to the effective date on the notice of monthly support obligation; or

      (b) Found to be incorrect, the cabinet shall return to the obligor any overpayment made since the date the administrative hearing was requested.

      (3) If an appellant files an appeal of the final order with the Circuit Court, the appellant shall be obligated to pay the amount listed on the notice of monthly support obligation while the appeal is pending.

 

      Section 7. Recommended Order. (1) After the hearing has concluded, the hearing officer shall submit to the secretary of the Cabinet for Health and Family Services[draft] a recommended order in accordance with KRS 13B.110 that:

      (a) Summarizes the facts of the case;

      (b) Specifies the address where a party to the hearing may send an exception to the recommended order; and

      (c) Identifies the:

      1. Findings of fact;

      2. Conclusions of law;

      3. Supporting evidence; and

      4. Applicable state and federal laws and administrative regulations.

      (2)[In accordance with KRS 13B.110, the hearing officer shall issue the recommended order to the Commissioner of the Department for Income Support or designee within sixty (60) calendar days of the close of the hearing record.

      (3)] A copy of the recommended order shall be sent to the:

      (a) Appellant or representative;

      (b) The secretary[Child support enforcement staff that attended the administrative hearing]; and

      (c) Designated staff of the Child Support Enforcement's central office.

 

      Section 8. Written Exceptions. [(1)] If a party to the hearing disagrees with the recommended order, within fifteen (15) days from the date the recommended order is mailed, the party may file with the secretary[a] written exceptions in accordance with KRS 13B.110(4)[exception with the Commissioner or designee.

      (2) A written exception shall:

      (a) Be filed in accordance with KRS 13B.110(4);

      (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 the other parties that attended the administrative hearing].

 

      Section 9. Final Order. (1) Within ninety (90) days from the date the recommended order is mailed, a final order shall be issued by the secretary[: (a)] in accordance with KRS 13B.120[;

      (b) By the commissioner or designee on behalf of the cabinet; and

      (c) Within ninety (90) calendar days of the recommended order, unless the recommended order is remanded in accordance with KRS 13B.120(4)].

      (2) If the final order differs from the recommended order, the final order shall comply with KRS 13B.120(3).

 

      Section 10. Incorporation by Reference. (1) "CS-180, Request for Administrative Hearing", 7/14[edition 4/09], is incorporated by reference.

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Cabinet for Health and Family Services, Department for Income Support, Child Support Enforcement, 730 Schenkel Lane, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

 

STEVEN P. VENO, Commissioner

AUDREY TAYSE HAYNES, Secretary

      APPROVED BY AGENCY: April 11, 2014

      FILED WITH LRC: April 11, 2014 at 3 p.m.

      PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall, if requested, be held on May 21, 2014, 2014 at 9:00 a.m. in the Health Services Auditorium, Health Services Building, First Floor, 275 East Main Street, Frankfort, Kentucky. Individuals interested in attending this hearing shall notify this agency in writing by May 14, 2014, five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. The hearing is open to the public. Any person who attends will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to attend the public hearing, you may submit written comments on the proposed administrative regulation. You may submit written comments regarding this proposed administrative regulation until close of business, June 2, 2014. Send written notification of intent to attend the public hearing or written comments on the proposed administrative regulation to:

      CONTACT PERSON: Tricia Orme, Office of Legal Services, 275 East Main Street 5 W-B, Frankfort, Kentucky 40621, phone (502) 564-7905, fax (502) 564-7573, email tricia.orme@ky.gov.

 

REGULATORY IMPACT ANALYSIS And Tiering Statement

 

Contact person: Mary W. Sparrow

      (1) Provide a brief summary of:

      (a) What this administrative regulation does: This administrative regulation outlines how an individual that is aggrieved by an action or inaction of the Child Support Enforcement Program is afforded the opportunity for an administrative review of their case.

      (b) The necessity of this administrative regulation: This administrative regulation is necessary to establish procedures for a participant in a child support case to request an administrative hearing.

      (c) How this administrative regulation conforms to the content of the authorizing statutes: This administrative regulation conforms to the content of the authorizing statutes by complying with the hearing process outlined in Kentucky Revised Statute Chapter 13B.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation will assist in the effective administration of the hearing process within the Child Support Enforcement Program and the Cabinet for Health and Family Services.

      (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: The Secretary of the Cabinet for Health and Family Services will receive a recommended order from the hearing officer, if an individual disagrees with the order, their exceptions are filed to the Secretary and the Secretary will issue the final order. Previously, the Commissioner of the Child Support Enforcement Program issued the final order.

      (b) The necessity of the amendment to this administrative regulation: In order to achieve consistency within the Cabinet for Health and Family Services, in regards to the administrative hearing process. The Cabinet for Health and Family Services has taken a comprehensive review of its administrative hearing and complaint processes for various improvements, including timeliness, congruency with KRS Chapter 13B requirements, and objectivity. The amendment to this administrative regulation is necessary to align child support hearings with the reassignment of final order responsibilities from the Commissioner of the Department for Income Support to the Secretary of the Cabinet.

      (c) How the amendment conforms to the content of the authorizing statutes: All administrative hearings and subsequent orders must conform to the authorizing statutes. The amendment conforms to the authorizing statutes by aligning the hearing process for child support enforcement participants with the reassignment of final order responsibilities in order to enhance the timeliness and objectivity in accordance with KRS Chapter 13B and federal law requirements.

      (d) How the amendment will assist in the effective administration of the statutes: This amendment will assist in the effective administration of the authorizing statutes by complying with federal law requirements, enhancing the timeliness and objectivity of the final order.

      (3) List the type and number of individuals, businesses, organizations, or state and local government affected by this administrative regulation: Individuals that are participants in the Kentucky Child Support Enforcement program.

      (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: Parties to an administrative hearing will direct exceptions to recommended orders to the Secretary of the Cabinet for Health and Family Services, rather than the Commissioner of the Department for Income Support.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3). The regulated entities will incur no new or additional cost.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3). The amendment to this administrative regulation improves upon existing cabinet procedures and intends to ensure overall cabinet timeliness, objectivity, and compliance with KRS Chapter 13B.

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

      (a) Initially: No additional funds will be necessary to implement the amendment to this administrative regulation.

      (b) On a continuing basis: No additional funds will be necessary to implement the amendment to this administrative regulation. What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: Federal funds from The Child Support Enforcement State Program under Title IV-D of the Social Security Act support the implementation and enforcement of this administrative regulation. State General Funds are also utilized.

      (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. Neither an increase in fees nor funding is necessary to implement this administrative regulation. The amendment to this administrative regulation does not require an increase in fees or funding.

      (8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees: This administrative regulation neither establishes nor increases any fees. This administrative regulation does not establish any fees or directly or indirectly increase any fees.

      (9) Tiering: Is tiering applied? Tiering is not applied, as this administrative regulation is applied in a like manner statewide.

 

FEDERAL MANDATE ANALYSIS COMPARISON

 

      1. Federal statute or regulation constituting the federal mandate. 42 U.S.C. 666 and 45 C.F.R. 303.35.

      2. State compliance standards. KRS Chapter 13B.

      3. Minimum or uniform standards contained in the federal mandate. 42 U.S.C. 666 and 45 C.F.R. 303.35.

      4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? The administrative regulation does not impose stricter than federal requirements. This administrative regulation does not impose stricter, additional, or different requirements or responsibilities than those required by the federal mandate.

      5. Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. This administrative regulation does not impose stricter, additional than federal requirements.

 

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? The Secretary’s office of the Cabinet for Health and Family Services and the Child Support Enforcement program will be affected by the amendments to this administrative regulation.

      2. Identify each state or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS Chapter 13B, KRS 205.712(2)(o), KRS 405.450, 45 C.F.R. 303.35 and 42 U.S.C. 666.

      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.

      (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? This administrative regulation will not generate additional funding.

      (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? This administrative regulation will not generate additional funding.

      (c) How much will it cost to administer this program for the first year? No additional funds will be necessary to implement this administrative regulation.

      (d) How much will it cost to administer this program for subsequent years? No additional funds will be necessary to implement this administrative regulation in subsequent years.

      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: