922 KAR 1:320. Service appeals.

922 KAR 1:320. Service appeals.

RELATES TO: KRS Chapter 13B, 194B.005, 194B.030(8), 199.557, 209.020(4), 600.020(41), 605.090(1)(b), (6), 620.230, 45 C.F.R. 205.10, 1355.21(b), 1355.30(p), 29 U.S.C. 794, 42 U.S.C. 625, 629a, 671(a)(23), 673, 675(1), EO 2004-726

STATUTORY AUTHORITY: KRS 194A.050(1), 29 U.S.C. 794

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 or to qualify for the receipt of federal funds. EO 2004-726 reorganizes the executive branch of government and establishes the Cabinet for Health and Family Services. 45 C.F.R. 205.10, made applicable to title IV-E programs by references in 45 C.F.R. 1355.21(b) and 1355.30(p), requires a state to provide for a system of hearings for persons aggrieved by an agency action resulting in the denial, suspension, reduction, modification, or termination of services or federally-funded benefits, payments, or financial assistance to which an individual may be entitled under 922 KAR Chapters 1 through 6. This administrative regulation establishes procedures related to appeals.

Section 1. Definitions. (1) "Adoption assistance" means a payment under KRS 199.557 and 922 KAR 1:050, Approval of adoption assistance.

(2) "Adult" is defined by KRS 209.020(4).

(3) "Caretaker relative" means a relative:

(a) With whom a child is, or shall be, placed by the cabinet; and

(b) Who is seeking to qualify as a kinship caregiver in accordance with 922 KAR 1:130, Kinship Care Program.

(4) "Case plan" is:

(a) Defined by 42 U.S.C. 675(1) and described by KRS 620.230 for a child placed outside the home; and

(b) Described in 922 KAR 1:430, Child Protective Services In-home Case Planning and Service Delivery, for a child who remains in the home.

(5) "Case planning conference" means a meeting in which a case plan is developed or modified.

(6) "Certified family child care home provider" means a caregiver certified under 922 KAR 2:100, Certification of family child care homes.

(7) "Child care assistance" means subsidy benefits as described by 922 KAR 2:160, Child Care Assistance Program.

(8) "Child welfare services" is defined by 42 U.S.C. 625 and described in 42 U.S.C. 629a.

(9) "Commissioner" means the Commissioner of the Department for Community Based Services or designee.

(10) "Contract agency" means a business or organization that offers child welfare or child care services to the public through a contract with the cabinet.

(11) "Good cause" means justification for failure to carry forward with a legal obligation related to an appeal.

(12) "Kinship caregiver" means a qualified caretaker relative of a child with whom the child is placed by the cabinet as an alternative to foster care.

(13) "Parent" is defined by KRS 600.020(41).

(14) "Protective services" for a vulnerable adult is defined by KRS 209.020(5).

(15) "Registered child care provider" means a caregiver registered under 922 KAR 2:180, Requirements for unregulated provider registration in the Child Care Assistance Program.

(16) "Resource home" means a home in which an individual has been certified by the cabinet to:

(a) Provide foster care services for a child placed by the cabinet;

(b) Adopt a child:

1. Whose parents' parental rights have been terminated; and

2. Who is under the custodial control of the cabinet; or

Section 2. Right to Appeal. (1) A parent may request review of the following through an administrative hearing:

(a) Denial, reduction, modification, suspension, or termination of child welfare services provided by the cabinet;

(b) Closure of a child protective services case in accordance with:

1. 922 KAR 1:330, Section 11(3); or

2. 922 KAR 1:430, Section 4(4)(b); or

1. Respond with reasonable promptness to a request for child welfare services provided by the cabinet;

2. Complete a case plan;

3. Provide or refer for services as specified in the case plan; or

4. Meet the mandated time frames for child protective services specified in 922 KAR 1:330.

(2) A resource home parent may request review of the following through an administrative hearing:

(a) Failure by the cabinet to:

1. Process reimbursement to a resource home with reasonable promptness;

2. Provide information required by KRS 605.090(1)(b) and (6);

3. Advise an adoptive parent of the availability of adoption assistance in accordance with 42 U.S.C. 673 and 922 KAR 1:050, Approval of adoption assistance; or

4. Provide an adoptive parent, except as otherwise required by law, with known relevant facts regarding the:

a. Child;

b. Child’s background prior to finalization of the adoption; and

c. Child's biological family;

(b) Determination of ineligibility for adoption assistance upon execution of an adoptive placement agreement under 922 KAR 1:050, Approval of adoption assistance;

(c) Denial of a request for a change in payment level due to a change in circumstances of an adoptive parent or child at the time of renewal of an adoption assistance agreement under 922 KAR 1:050, Approval of adoption assistance; or

(d) Closure of a resource home under 922 KAR 1:350, Family preparation, unless a provision of Section 3(1)(f), (g), (h), or (i) of this administrative regulation applies.

(3) An approved and available adoptive family outside the jurisdiction with responsibility for handling the case of an adoptive child may request an administrative hearing for the cabinet’s denial or delay in placement of the child for adoption pursuant to 42 U.S.C. 671(a)(23).

(4)(a) Pursuant to 922 KAR 1:130, Section 19(1), a kinship caregiver may request an administrative hearing under the provisions of this administrative regulation for denial by the cabinet of:

1. Supportive services to facilitate the child's placement with the kinship caregiver; or

2. A request for start-up costs to facilitate the child's adjustment to the new environment with the kinship caregiver.

(b) Pursuant to 922 KAR 1:130, Section 19(2), a kinship caregiver who is dissatisfied with an action or inaction on the part of the cabinet relating to financial assistance under the Kinship Care Program may request an administrative hearing under the provisions of 921 KAR 2:055, Hearings and appeals.

(5) An applicant determined by the cabinet to be ineligible for a tuition waiver may request an administrative hearing pursuant to 922 KAR 1:450, Section 3.

(6) An applicant determined by the cabinet to be ineligible for an educational and training voucher may request an administrative hearing pursuant to 922 KAR 1:500, Section 5.

(7) An adult may request review of the following through an administrative hearing:

(a) The cabinet’s denial of a general adult service or protective service to an adult identified as a victim of abuse, neglect, or exploitation; or

(b) Failure by the cabinet to respond with reasonable promptness to a request for:

1. General adult services; or

2. Protective services for an adult.

(8) An applicant for child care certification or a certified family child care home provider may request review of

the following actions through an administrative hearing under 922 KAR 2:100, Certification of family child care homes:

(a) Denial of certification;

(b) An intermediate sanction;

(d) Revocation of certification.

(9) An applicant for child care assistance or the parent of a child receiving assistance may request an appeal before the cabinet’s designee under the provisions of Section 7 of this administrative regulation for the denial, reduction, suspension, or termination of benefits under 922 KAR 2:160, Child Care Assistance Program.

(10) An applicant for child care registration or a registered child care provider may request an appeal before the cabinet’s designee under the provisions of Section 7 of this administrative regulation for denial or termination of a child care provider’s registration under 922 KAR 2:180, Requirements for unregulated provider registration in the Child Care Assistance Program.

(11) An individual aggrieved by an action of the cabinet may request review of the following through an administrative hearing:

(a) Any other matter by which state law or 922 KAR Chapters 1 through 6 expressly permits the appeal of a cabinet action or alleged act;

(b) A cabinet denial, reduction, suspension, or termination of services or federally-funded benefits, payments, or financial assistance to which an individual may be entitled under 922 KAR Chapters 1 through 6; or

(c) A cabinet failure to act with reasonable promptness to a request for a federally-funded benefit, payment, or financial assistance to which an individual may be entitled under 922 KAR Chapters 1 through 6.

Section 3. Matters Not Appealable through an Administrative Hearing. (1) The following shall not be subject to review through an administrative hearing:

(a) A matter in which a court:

1. Has previously made a judicial determination or issued an order on the same issue being appealed; or

2. Is currently engaged in legal proceedings regarding the same issue being appealed;

(b) A final administrative decision made by the cabinet or cabinet’s designee as a result of a previous appeal on the same issue;

(d) Failure to submit a written request for appeal within the time frame established by Section 6(4)(b) of this administrative regulation;

(e) A decision to deny:

1. Approval of an individual seeking to provide foster or adoptive services in accordance with 922 KAR 1:350 or 922 KAR 1:310; or

2. A caretaker relative approval as a kinship caregiver if the caretaker relative fails to meet the provisions of 922 KAR 1:130, Section 5;

(f) Removal of a foster child from a resource home if the resource home parent or another individual residing in the home has been found by the cabinet to have abused, neglected, or exploited a child and the:

1. Resource home parent or other individual waived the right to appeal the substantiated incident; or

2. Substantiated incident was upheld after:

a. An administrative hearing; or

b. Judicial review;

(g) Removal of a child from a resource home for the purpose of:

1. Achieving a permanency goal described by 922 KAR 1:140, Foster care and adoption permanency services; or

2. Uniting or reuniting the child with a sibling at the next placement;

(h) Closure of a resource home if the cabinet has not placed a child in the home within the previous two (2) years;

(i) Closure of a resource home according to the terms of the contract between the cabinet and the resource home;

(j) A situation where state or federal law requires adjustment of a payment or grant, except when a payment or grant computation is incorrect;

(k) The per diem rate of reimbursement paid to a resource home parent who provides foster care services; or

(l) Decision to not recommend a resource home parent in accordance with 922 KAR 1:350, Section 9(11) for enrollment in specialized training as an emergency shelter, medically fragile, specialized medically fragile, or care plus resource home.

(2) A complaint of discrimination may be filed with the cabinet’s Equal Opportunity Office.

Section 4. Service Complaints. (1) If a matter is not subject to review through an administrative hearing, an individual may:

(a) Contact the cabinet’s Office of the Ombudsman if the matter was not previously reviewed by that office; or

(b) Attempt to resolve the issue by submitting a written request to the service region administrator or designee within thirty (30) calendar days after the date of the cabinet action or alleged act.

(2) The cabinet shall provide a written response to the complainant within thirty (30) calendar days of receipt of a request for resolution of a matter not subject to review through an administrative hearing.

(3) A service region administrator or designee shall submit a monthly report to the commissioner or designee. The report shall state the:

(a) Number of customer service complaints;

(b) Nature of each complaint; and

Section 5. Appeal of a Child Abuse or Neglect Investigative Finding. An individual who has been found by the cabinet to have abused or neglected a child may appeal the cabinet’s finding through an administrative hearing in accordance with 922 KAR 1:480, Appeal of child abuse and neglect investigative findings.

Section 6. Request for Appeal. (1) The cabinet shall provide a copy of the Service Appeal Request, form DPP-154, to an individual:

(a) At each case planning conference;

(b) Upon application for approval as a Certified family child care home provider;

1. Child welfare services provided by the cabinet;

2. A general adult or protective service, if notification does not present a risk of harm to the victim;

3. Adoption assistance; or

4. Other federally-funded program benefit described in 922 KAR Chapters 1 through 6; or

(d) Upon determination that a student is not eligible for a tuition waiver or education and training voucher.

(2) The cabinet shall hand-deliver or mail a Notice of Intended Action, form DPP-154A, at least ten (10) days prior to the denial, reduction, modification, suspension, or termination of a service.

(3) The cabinet may take emergency action under KRS 13B.125.

(4) A request for appeal shall:

(a) Be written by the appellant, with the assistance of the cabinet or contract agency if the appellant is unable to comply without assistance;

(b) Be submitted to the cabinet no later than thirty (30) calendar days from the date:

1. That the DPP-154A was issued; or

2. Of the occurrence of the disputed action;

1. Cabinet action in dispute; or

2. Alleged act;

(d) Specify:

1. The reason the appellant disputes the cabinet’s action; and

2. Name of each cabinet staff person involved with the disputed action, If known; and

3. Date of the cabinet action or alleged act in dispute; and

(e) Include the DPP-154A, if available.

(5) Upon receipt of a written request for appeal, the cabinet shall determine whether the matter is subject to review through an administrative hearing. If the matter is not subject to review, the cabinet shall inform the individual in writing that the:

(a) Matter is not appealable; and

(b) Resolution of the matter may be pursued through the service complaint process described in Section 4 of this administrative regulation.

(6) If the cabinet receives a written request for appeal within ten (10) calendar days from the date the DPP-154A was issued or date of the disputed action and the matter is appealable, the cabinet shall continue to provide federally-funded assistance in accordance with 45 C.F.R. 205.10(a)(6) pending the outcome of the appeal.

(7) The cabinet shall not dismiss a request for appeal if an appellant demonstrates good cause. Justification includes:

(a) Inability to comprehend the cabinet's written statement describing appeal rights; or

(b) A cabinet-sanctioned determination that the failure to file or participate was not the fault of the individual or authorized representative.

Section 7. Administrative Hearing. (1) Each administrative hearing conducted by the cabinet or designee shall comply with KRS Chapter 13B.

(2) Unless waived by the appellant, final administrative action shall be taken in accordance with the ninety (90) day time frame established by KRS 13B.120(4).

Section 8. Contract Agencies. (1) A contract agency or an agency with which the cabinet has a written agreement shall offer a service appeal process consistent with the requirements of this administrative regulation.

(2)(a) An individual dissatisfied with a final written decision rendered by a contract agency or an agency with which the cabinet has a written agreement may request that the cabinet review the complaint and the final decision.

(b) A request for review shall be submitted to the cabinet within ten (10) days of the agency’s final decision.

(c) Upon completion of the review, the commissioner or designee shall render a written recommendation regarding the complaint.

(d) The agency shall abide by the recommendation.

Section 9. Incorporation by Reference. (1) The following material is incorporated by reference:

(a) "DPP-154, Service Appeal Request, edition 06/04"; and

(b) "DPP-154A, Notice of Intended Action, edition 06/04".

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Cabinet for Health and Family Services, 275 East Main Street, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m. (17 Ky.R. 3608; Am. 18 Ky.R. 316; eff. 8-21-91; 20 Ky.R. 2431; 2855; eff. 3-23-94; 23 Ky.R. 1786; 2528; eff. 11-20-96; 25 Ky.R. 926; 1649; eff. 1-19-99; Recodified from 905 KAR 1:320, 2-1-99; 28 Ky.R. 2464; 29 Ky.R. 141; eff. 7-15-2002; 30 Ky.R. 1679; 2468; eff. 6-16-04.)