CABINET FOR HEALTH AND FAMILY SERVICES

Department for Community Based Services

Division of Family Support

(Amendment)

 

      921 KAR 2:055. Hearings and appeals.

 

      RELATES TO: KRS Chapter 13B, 45.237, 205.211, 205.231, 205.237, 45 C.F.R. 205.10, 30 U.S.C. 901-944, 38 U.S.C. 1101-1163, 1501-1525, 42 U.S.C. 401-434, 601-619, 1381-1383f, 8621-8630, 45 U.S.C. 231-231v

      STATUTORY AUTHORITY: KRS 13B.170, 194A.010(2), 194A.050(1), 205.231(5), 42 U.S.C. 602, 8624

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.010(2) requires the Cabinet for Health and Family Services to administer income-supplement programs that protect, develop, preserve, and maintain families and children in the Commonwealth. KRS 194A.050(1) requires the secretary to promulgate, administer, and enforce those administrative regulations necessary to implement programs mandated by federal law or to qualify for the receipt of federal funds and necessary to cooperate with other state and federal agencies for the proper administration of the cabinet and its programs. 42 U.S.C. 602 and 42 U.S.C. 8624 require states receiving Temporary Assistance for Needy Families(TANF) and Low Income Home Energy Assistance Program (LIHEAP) grants, respectively, to provide a grievance procedure for participants and outline this procedure in the applicable state plan. KRS Chapter 13B establishes the hearing process to be followed in the Commonwealth, and KRS 205.231(5) requires the cabinet to promulgate administrative regulations for the hearing process. This administrative regulation establishes the requirements to be followed in conducting a hearing related to the Kentucky Transitional Assistance Program (K-TAP), the Low-Income Home Energy Assistance Program (LIHEAP), or the State Supplementation Program (SSP).

 

      Section 1. Hearing Information. (1) A participant shall be informed of:

      (a) The right to a hearing;

      (b) The procedures for requesting a hearing, as defined in Section 3 of this administrative regulation; and

      (c) Who may represent the participant in a hearing as defined in Section 2 of this administrative regulation.

      (2) When the participant files an application, the cabinet shall inform the participant of the right to hearing both orally and in writing.

      (3) When an action is taken which affects the benefits of the participant, the cabinet shall inform the participant of the right to hearing in writing.

 

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

      (a) Completing and submitting a PAFS-78, Request for Hearing, Appeal, or Withdrawal;

      (b) Submitting a written request; or

      (c) Making an oral request.

      (2) The hearing request may be:

      (a) Submitted to the local Department for Community Based Services office; or

      (b) Sent to the Cabinet for Health and Family Services, Division of Administrative Hearings, Families and Children Administrative Hearings Branch, 275 East Main, Frankfort, Kentucky 40621.

      (3) The reason for the hearing shall be included in the hearing request.

 

      Section 3. Timeframe for Hearing Request. (1) A written or oral request for a hearing shall be considered timely if received by the cabinet within:

      (a) Forty (40) days of the date of the advance notice of adverse action;

      (b) Thirty (30) days of the notice of:

      1. Denial of an application; or

      2. Decrease or discontinuance of an active case; or

      (c) The time period the action is pending if the hearing issue is a delay in action.

      (2) If a hearing officer determines an appellant meets good cause criteria in accordance with subsection (3) of this section, the appellant may be granted up to an additional thirty (30) days to submit a hearing request.

      (3) An appellant may be granted good cause by the cabinet:

      (a) For:

      1. A delay in requesting a hearing;

      2. A delay in requesting a continuation of benefits;

      3. Failure to appear for a hearing; or

      4. Postponement of a scheduled hearing; and

      (b) If the appellant:

      1. Was away from home during the entire filing period;

      2. Is unable to read or to comprehend the right to request a hearing on an adverse action notice;

      3. Moved, resulting in delay in receiving or failure to receive the adverse action notice;

      4. Had a household member who was seriously ill; or

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

 

      Section 4. Continuation of Assistance Program Benefits. (1) If a hearing is requested, benefits shall remain inactive or reduced pending the issuance of a final order unless the appellant requests a continuation of benefits.

      (2) Benefits shall be reinstated to the benefit level that was received prior to the adverse action being taken if the request for a continuation of benefits is received within:

      (a) Ten (10) days of the date on the notice of adverse action; or

      (b) Twenty (20) days of the date on the notice of adverse action or notice if the reason for delay meets the good cause criteria contained in Section 3(3) of this administrative regulation.

      (3) If the program benefit has been reduced or discontinued as a result of a change in law, administrative regulation, or policy of the cabinet, subsection (2) of this section shall not apply.

      (4) If the action taken by the agency is upheld, continued or reinstated benefits shall be:

      (a) Considered overpayments as defined in KRS 205.211; and

      (b) Collected in accordance with KRS 45.237.

 

      Section 5. Hearing Notification. (1) The Division of Administrative Hearings, Families and Children Administrative Hearings Branch shall acknowledge a hearing request.

      (2) In accordance with KRS 13B.050, the notice of the hearing shall contain information regarding the:

      (a) Hearing process, including the right to case record review prior to the hearing;

      (b) Right to representation;

      (c) Availability of free representation by legal aid or assistance from other organizations within the community; and

      (d) Time and location of the hearing.

      (3) The cabinet may deny or dismiss a hearing request in accordance with 45 C.F.R. 205.10(a)(5)(v).

 

      Section 6. Withdrawal or Abandonment of Request. (1) The appellant may withdraw a hearing request prior to the:

      (a) Hearing; or

      (b) Final order being issued if the hearing has already been conducted.

      (2) The cabinet shall consider a hearing request abandoned if the appellant or authorized representative fails to:

      (a) Appear for the scheduled hearing without notifying the cabinet prior to the hearing; and

      (b) Establish good cause for failure to appear, in accordance with the criteria specified in Section 3(3) of this administrative regulation, within ten (10) days of the scheduled hearing date.

 

      Section 7. Appellant’s Hearing Rights. (1) In addition to the rights described in Section 6 of this administrative regulation, the appellant shall have the right to submit additional information in support of the claim.

      (2) The appellant shall have the right to a medical assessment or professional evaluation at the expense of the cabinet by a source:

      (a)[person] Not associated with the original action; and

      (b) Agreeable to both the appellant and the cabinet if:

      1. The hearing[: (a)] involves medical issues; and

      2.[(b)] The hearing officer considers it necessary.

      (3) If a request for a medical assessment at cabinet expense is received and denied by the hearing officer, the denial shall:

      (a) Be in writing; and

      (b) Specify the reason for the denial.

 

      Section 8. Postponement of a Hearing. (1) An appellant shall be entitled to a postponement of a hearing if the:

      (a) Request for the postponement is made prior to the hearing; and

      (b) Need for the delay is due to an essential reason beyond the control of the appellant in accordance with good cause criteria contained in Section 3(3) of this administrative regulation.

      (2) The hearing officer shall decide if a hearing is postponed.

      (3) The postponement of a hearing shall not exceed thirty (30) days from the date of the request for postponement.

 

      Section 9. Conduct of a Hearing. (1) A hearing shall be:

      (a) Scheduled by the hearing officer; and

      (b) Conducted in accordance with KRS 13B.080 and 13B.090.

      (2) A hearing officer shall make an effort to conduct a hearing at a location within the state that is convenient for the appellant and other parties involved.

      (3) To secure all pertinent information on the issue, the hearing officer may:

      (a) Examine each party or witness who appears; and

      (b) If necessary, collect additional evidence from a party.

      (4)(a) If consent is obtained from each party required to testify under oath, a telephonic hearing may be conducted.

      (b) Parties to a telephonic hearing shall:

      1.[(a)] Submit all available documentary evidence to be used during the hearing to the hearing officer and the opposing party prior to the hearing being convened; and

      2.[(b)] Within the timeframe specified by the hearing officer, mail the hearing officer and opposing party any documents or written materials that:

      a.[1.] Are introduced as evidence into the hearing record; and

      b.[2.] Have not been supplied to the opposing party prior to the hearing.

      (5) If evidence addressed in subsection (4)(b) of this section is not provided to the hearing officer and the opposing party, the evidence may be excluded from the hearing record.

 

      Section 10. Recommended Order. (1) After the hearing has concluded, the hearing officer shall draft a recommended order in accordance with KRS 13B.110, which:

      (a) Summarizes the facts of the case;

      (b) Specifies the:

      1. Reasons for the recommended order; and

      2. Address to which a party in 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 regulations.

      (2) A copy of the recommended order shall be sent simultaneously to the:

      (a) Appellant or representative;

      (b) Appeal Board for Public Assistance established in accordance with KRS 205.231[Local Department for Community Based Services office and the office’s management]; and

      (c) Department for Community Based Services’ Division of Family Support.

 

      Section 11. Written Exceptions and Rebuttals. (1) If a party to a hearing disagrees with the recommended order, the party may file a written exception in accordance with KRS 13B.110(4) with the Appeal Board for Public Assistance[Commissioner of the Department for Community Based Services or designee].

      (2) A written exception[exceptions] or rebuttal shall:

      (a) Be filed within fifteen (15) days of the date the recommended order was mailed;

      (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 each other party involved in the hearing.

 

      Section 12. Appeal Board Review. (1) In accordance with KRS 13A.120 and 205.231, the Appeal Board for Public Assistance shall send a written acknowledgement of the exception to the recommended order and subsequent appeal to the:

      (a) Parties to the hearing; and

      (b) Commissioner of the Department for Community Based Services.

      (2) The acknowledgement shall:

      (a) Offer the opportunity to:

      1. File a brief; or

      2. Request permission to submit new or additional evidence; and

      (b) State the tentative date on which:

      1. A brief, new evidence, or new exhibit are to be received by the Appeal Board for Public Assistance for consideration; and

      2. The Appeal Board for Public Assistance shall consider the appeal.

      (3) The Appeal Board for Public Assistance shall consider:

      (a) The records of the hearing; and

      (b) New evidence or exhibits introduced before the Appeal Board for Public Assistance in accordance with this section.

      (4) If an appeal is being considered on the record, the parties may:

      (a) Submit written arguments; and

      (b) Be allowed to present oral arguments at the Appeal Board for Public Assistance’s discretion. Telecommunications may be utilized for the presentation of oral arguments.

      (5) If needed, the Appeal Board for Public Assistance may request additional evidence to resolve the appeal[Final Order. Unless the issue is remanded to the hearing officer for further action, the commissioner or designee shall issue a final order within forty-five (45) days of receipt of the recommended order.

 

      Section 13. Appeal of the Final Order. (1) A participant or authorized representative may appeal a final order by filing an appeal to an appeal board appointed in accordance with KRS 205.231(3).

      (2) A request for appeal of a final order shall be submitted either orally or in writing to the:

      (a) Local Department for Community Based Services office; or

      (b) Appeal board.

      (3) The date a request is received by the cabinet is considered the date the request is filed.

      (4) An appeal request shall be considered timely if the request is received within:

      (a) Twenty (20) days of the date the final order was mailed; or

      (b) Thirty (30) days of the date the final order was mailed if good cause, in accordance Section 3(3) of this administrative regulation, is met.

 

      Section 14. Appellant’s Rights Prior to Appeal Board Consideration. (1) An appeal to the appeal board shall be acknowledged in writing to the appellant and authorized representative.

      (2) The acknowledgment shall:

      (a) Advise the appellant that:

      1. A brief may be filed; or

      2. New evidence or exhibits may be submitted in accordance with Section 15(1)(b) of this administrative regulation; and

      (b) State the date by which the appellant’s brief, new evidence, or new exhibits are to be received by the appeal board for consideration.

 

      Section 15. Appeal Board Review. (1) The appeal board shall consider:

      (a) The records of the hearing; and

      (b) New evidence or exhibits introduced before the appeal board in accordance with subsection (2) or (3) of this section.

      (2) The appeal board shall provide an appellant opportunity to submit new evidence or exhibits available since the hearing.

      (3) If an appeal is being considered on the record, the parties may:

      (a) Submit written arguments; and

      (b) Be permitted to present oral arguments if a party provides justification to the board that the party cannot present new evidence or exhibits available since the hearing in writing. Telecommunications may be utilized for the presentation of oral arguments].

 

      Section 13.[16.] The Appeal Board Decision. (1) The decision of the Appeal Board for Public Assistance shall be in accordance with KRS 13A.120 and 205.231.

      (2) The Appeal Board for Public Assistance shall be allowed to reverse the decision in subsection (1) of this section if the following criteria are met:

      (a) The correct determination of eligibility based on incapacity or disability is the only issue being considered in the appeal board decision; and

      (b) Within twenty (20) days of the Appeal Board for Public Assistance’s decision, the appellant, or household member whose incapacity or disability is the issue of the hearing, receives and provides to the appeal board an award letter for benefits based on disability including:

      1. Supplemental Security Income pursuant to 42 U.S.C. 1381-1383f;

      2. Retirement, Survivors, and Disability Insurance, pursuant to 42 U.S.C. 401-434;

      3. Federal Black Lung Benefits pursuant to 30 U.S.C. 901-944;

      4. Railroad Retirement Benefits pursuant to 45 U.S.C. 231-231v; or

      5. Veterans Administration Benefits based on 100 percent disability pursuant to 38 U.S.C. 1101-1163 or 1501-1525.

      (3) A party aggrieved by the Appeal Board for Public Assistance’s decision shall have the right to pursue judicial review of the decision in accordance with KRS 13B.140 and 13B.150.

 

      Section 14.[17.] Payments of Assistance. (1) Payments of assistance shall be made within ten (10) days of the receipt of a final order issued by the Appeal Board for Public Assistance[or a decision of the appeal board] and shall include:

      (a) The month of application; or

      (b) If it is established that the appellant was eligible during the entire period in which assistance was withheld, a month in which incorrect action of the cabinet adversely affected the appellant.

      (2) For reversals involving reduction of benefits, action shall be taken to restore benefits within ten (10) days of the receipt of a final order issued by the Appeal Board for Public Assistance[or a decision of the appeal board].

 

      Section 15.[18.] Limitation of Fees. (1) The cabinet shall not be responsible for payment of attorney fees.

      (2) Pursuant to KRS 205.237, an attorney representing an appellant shall not charge more than the following amounts for his services:

      (a) Seventy-five (75) dollars for preparation and appearance at a hearing before a hearing officer;

      (b) Seventy-five (75) dollars for preparation and presentation, including any briefs, of appeals to the appeal board;

      (c) $175 for preparation and presentation, including pleadings and appearance in court, of appeals to the circuit court; or

      (d) $300 for preparatory work, briefs, and other materials related to an appeal to the Court of Appeals.

      (3) The cabinet shall approve the amount of a fee, if the:

      (a) Appellant and legal counsel agree to the fee; and

      (b) Fee is within the maximums specified in subsection (2) of this section.

      (4) Collection of an attorney fee shall:

      (a) Be the responsibility of the counsel or agent; and

      (b) Not be deducted from the benefits provided to an appellant.

 

      Section 16. Incorporation[19. Incorporated] by Reference. (1) The form, "PAFS-78, Request for Hearing, Appeal, or Withdrawal", 6/14[edition 03/13], is incorporated by reference.

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Community Based Services, 275 East Main Street, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m.

 

TERESA C. JAMES, Commissioner

AUDREY TAYSE HAYNES, Secretary

      APPROVED BY AGENCY: March 7, 2014

      FILED WITH LRC: March 7, 2014 at 2 p.m.

      PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall, if requested, be held on April 21, 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 April 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 April 30, 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 40601, phone 502-564-7905, fax 502-564-7573, email tricia.orme@ky.gov.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact: Elizabeth Caywood

      (1) Provide a brief summary of:

      (a) What this administrative regulation does: This administrative regulation establishes the requirements to be followed in conducting a hearing related to the Kentucky Transitional Assistance Program (K-TAP), the Low-income Home Energy Assistance Program (LIHEAP), and the State Supplementation Program (SSP).

      (b) The necessity of this administrative regulation: This administrative regulation is needed to establish uniform standards for conducting hearings regarding public assistance programs.

      (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 establishing hearings process for K-TAP, LIHEAP, and SSP.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation assists in the effective administration of the statutes by establishing the hearings process for public assistance programs.

      (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 amendment will change the existing administrative regulation by reassigning the final order responsibility from the Commissioner of the Department for Community Based Services to the Appeal Board for Public Assistance; revising the non-discrimination statement on material incorporated by reference; and making other technical corrections in accordance with KRS Chapter 13A.

      (b) The necessity of the amendment to this administrative regulation: The Cabinet for Health and Family Services has undertaken 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 hearings for public assistance with the reassignment of final order responsibilities from the Commissioner of the Department for Community Based Services to the Appeal Board for Public Assistance and to assure congruency with another simultaneously filed administrative regulation, 921 KAR 3:070, which governs hearings for the Supplemental Nutrition Assistance Program (SNAP). Because the incorporated material is also used by SNAP applicants/recipients, the U.S. Department of Agriculture-Food and Nutrition Service (FNS) requires that the material contains certain statements regarding nondiscrimination (7 C.F.R. 273.2). Recently, FNS revised the required nondiscrimination statement, which necessitated revision to this administrative regulation’s incorporated material. This amendment is also necessary to comply with KRS Chapter 13A.

      (c) How the amendment conforms to the content of the authorizing statutes: The amendment conforms to the authorizing statutes by aligning hearing processes for public assistance programs with the forthcoming reassignment of final order responsibilities to enhance timeliness, objectivity, and congruency with KRS Chapter 13B and federal law requirements; and by ensuring compliance with federal requirements regarding programmatic notice of applicants’/recipients’ nondiscrimination rights.

      (d) How the amendment will assist in the effective administration of the statutes: The amendment to this administrative regulation will assist in the effective administration of the statutes through its enhancement of hearing processes for public assistance programs.

      (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 families who are receiving assistance from K-TAP, LIHEAP, and SSP. Material incorporated by reference, the form PAFS-78, Request for Hearing, Appeal, or Withdrawal, is also used by recipients of SNAP benefits. In November 2013, there were 23,432 K-TAP families; 6,291 Kinship Care families; 408,474 SNAP families; and 3,060 State Supplementation recipients. LIHEAP served 130,481 households in Federal Fiscal Year 2013.

      (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 Appeal Board for Public Assistance, rather than the Commissioner of the Department for Community Based Services.

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

      (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 the administrative body to implement this administrative regulation:

      (a) Initially: The amendment to this administrative regulation is not projected to initially create new or additional costs for the administrative body.

      (b) On a continuing basis: The amendment to this administrative regulation is not projected to create new or additional costs for the administrative body on a continuing basis.

      (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: The source of funding will be General Funds and federal funds made available through the Temporary Assistance for Needy Families and Low Income Home Energy Assistance Program Block Grants. The funding has been appropriated in the enacted budget.

      (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: An increase in fees or funding will not be necessary to implement this amendment.

      (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: This administrative regulation establishes the maximum fees outlined to be paid by the appellant to legal representation in accordance with KRS 205.237. This administrative regulation does not directly or indirectly increase or change any fees.

      (9) TIERING: Is tiering applied? Tiering is not applied, because 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. 601-619, 8621-8630

      2. State compliance standards. KRS 13B.170, 194A.010(2), 194A.050(1), 205.231(5)

      3. Minimum or uniform standards contained in the federal mandate. The provisions of the administrative regulation comply with the federal mandate.

      4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? This administrative regulation will impose no stricter, additional, or different responsibilities or requirements 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 will impose no stricter, additional or different responsibilities or 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 Cabinet for Health and Family Services will be impacted by this administrative regulation.

      (2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 13B.170, 194A.010(2), 194A.050(1), 205.231(5), 42 U.S.C. 601-619, 8621-8630

      (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 program has been operational for numerous years and will not generate any new or additional revenues in the first year.

      (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 any new or additional revenues in subsequent years.

      (c) How much will it cost to administer this program for the first year? This administrative regulation will not result in any new or additional cost in the first year.

      (d) How much will it cost to administer this program for subsequent years? This administrative regulation will not result in any new or additional cost 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: